REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SUNTRUST BANKS, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-1575035
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
(Address of Principal Executive Offices)
EQUITABLE SECURITIES CORPORATION PROFIT SHARING PLAN
(Full Title of the Plan)
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Raymond D. Fortin
Senior Vice President
SunTrust Banks, Inc.
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
(Name and address of Agent for Service)
404-588-7165
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------- ------------------------- ------------------------- ------------------------- -------------------------
Amount Proposed Maximum Proposed Maximum
Title of Securities to to be Offering Price Aggregate Amount of
be Registered Registered Per Share(1) Offering Price(1) Registration Fee(1)
- ---------------------------- ------------------------- ------------------------- ------------------------- -------------------------
<S> <C>
Common Stock, $1.00
par value per share..... 400,000 $72.41 $28,964,000 $8,052
- ---------------------------- ------------------------- ------------------------- ------------------------- ------------------------
</TABLE>
(1) Determined pursuant to Rule 457(c) and (h)(l) based on $72.41, the
average of the high and low prices of the registrant's common stock on
November 19, 1999, as reported on the New York Stock Exchange.
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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.
<PAGE>
PART I
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INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
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This Registration Statement covers 400,000 shares of common stock, par
value $1.00 per share (the "Common Stock") of SunTrust Banks, Inc. (the
"Company"), issuable pursuant to the Equitable Securities Corporation Profit
Sharing Plan (the "Profit Sharing Plan").
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating employees and directors as specified
by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities
Act"). These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998, pursuant to Section 13 of the Securities Exchange Act of 1934
(the "Exchange Act").
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1999, June 30, 1999 and September 30, 1999.
(c) The Company's Current Reports on Form 8-K dated January 12, 1999,
January 15, 1999, and October 18, 1999.
(d) The description of the Company's Common Stock contained on pages 2
to 9 in Amendment No. 1, dated August 4, 1987, to its Registration of Common
Stock on Form 8-B, dated June 10, 1985, filed under Section 12(b) of the
Exchange Act, including any amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Company or the Profit Sharing
Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after
the effective date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such documents. Any statement contained in a document incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the securities offered hereby has been passed upon by
Raymond D. Fortin, Esq., Senior Vice President of the Company, who beneficially
owns 23,000 shares of Common Stock and has options to purchase 4,800 shares of
Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Part 5 of Article 8 of the Georgia Business Corporation Code states:
14-2-850. Part Definitions.
As used in this part, the term:
(1) "Corporation" includes any domestic or foreign predecessor
entity of a corporation in a merger or other transaction in which the
predecessor's existence ceased upon consummation of the transaction.
(2) "Director" or "officer" means an individual who is or was a
director or officer, respectively, of a corporation or who, while a
director or officer of the corporation, is or was serving at the
corporation's request as a director, officer, partner, trustee,
employee, or agent of another domestic or foreign corporation,
partnership, joint venture, trust, employee benefit plan, or other
entity. A director or officer is considered to be serving an employee
benefit plan at the corporation's request if his or her duties to the
corporation also impose duties on, or otherwise involve services by,
the director or officer to the plan or to participants in or
beneficiaries of the plan. Director or officer includes, unless the
context requires otherwise, the estate or personal representative of a
director or officer.
(3) "Disinterested director" means a director who at the time of
a vote referred to in subsection (c) of Code Section 14-2-853 or a
vote or selection referred to in subsection (b) or (c) of Code
Section 14-2-855 or subsection (a) of Code Section 14-2-856 is not:
(A) A party to the proceeding; or
(B) An individual who is a party to a proceeding having a
familial, financial, professional, or employment relationship
with the director whose indemnification or advance for expenses
is the subject of the decision being made with respect to the
proceeding, which relationship would, in the circumstances,
reasonably be expected to exert an influence on the director's
judgment when voting on the decision being made.
(4) "Expenses" include counsel fees.
(5) "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), or reasonable expenses incurred
with respect to a proceeding.
(6) "Official capacity" means:
(A) When used with respect to a director, the office of
director in a corporation; and
(B) When used with respect to an officer, as contemplated in
Code Section 14-2-857, the office in a corporation held by the
officer.
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Official capacity does not include service for any other domestic or
foreign corporation or any partnership, joint venture, trust, employee
benefit plan, or other entity.
(7) "Party" means an individual who was, is, or is
threatened to be made a named defendant or respondent in a
proceeding.
(8) "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal,
administrative, arbitrative, or investigative and whether formal
or informal.
14-2-851. Authority to Indemnify.
(a) Except as otherwise provided in this Code section, a corporation
may indemnify an individual who is a party to a proceeding because he or she is
or was a director against liability incurred in the proceeding if:
(1) Such individual conducted himself or herself in good
faith; and
(2) Such individual reasonably believed:
(A) In the case of conduct in his or her official
capacity, that such conduct was in the best interests of the
corporation;
(B) In all other cases, that such conduct was at least
not opposed to the best interests of the corporation; and
(C) In the case of any criminal proceeding, that the
individual had no reasonable cause to believe such conduct
was unlawful.
(b) A director's conduct with respect to an employee benefit plan for
a purpose he or she believed in good faith to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subparagraph (a)(2)(B) of this Code section.
(c) The termination of a proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct set
forth in this Code section.
(d) A corporation may not indemnify a director under this Code
section:
(1) In connection with a proceeding by or in the right of the
corporation, except for reasonable expenses incurred in connection
with the proceeding if it is determined that the director has met the
relevant standard of conduct under this Code section; or
(2) In connection with any proceeding with respect to conduct for
which he or she was adjudged liable on the basis that personal benefit
was improperly received by him or her, whether or not involving action
in his or her official capacity.
14-2-852. Mandatory Indemnification.
A corporation shall indemnify a director who was wholly successful, on
the merits or otherwise, in the defense of any proceeding to which he or she was
a party because he or she was a director of the corporation against reasonable
expenses incurred by the director in connection with the proceeding.
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14-2-853. Advance for Expenses.
(a) A corporation may, before final disposition of a proceeding,
advance funds to pay for or reimburse the reasonable expenses incurred by a
director who is a party to a proceeding because he or she is a director if he or
she delivers to the corporation:
(1) A written affirmation of his or her good faith belief that he
or she has met the relevant standard of conduct described in Code
Section 14-2-851 or that the proceeding involves conduct for which
liability has been eliminated under a provision of the articles of
incorporation as authorized by paragraph (4) of subsection (b) of Code
Section 14-2-202; and
(2) His or her written undertaking to repay any funds advanced if
it is ultimately determined that the director is not entitled to
indemnification under this part.
(b) The undertaking required by paragraph (2) of subsection (a) of
this Code section must be an unlimited general obligation of the director but
need not be secured and may be accepted without reference to the financial
ability of the director to make repayment.
(c) Authorizations under this Code section shall be made:
(1) By the board of directors:
(A) When there are two or more disinterested directors, by a
majority vote of all the disinterested directors (a majority of
whom shall for such purpose constitute a quorum) or by a majority
of the members of a committee of two or more disinterested
directors appointed by such a vote; or
(B) When there are fewer than two disinterested directors,
by the vote necessary for action by the board in accordance with
subsection (c) of Code Section 14-2-824, in which authorization
directors who do not qualify as disinterested directors may
participate; or
(2) By the shareholders, but shares owned or voted under the
control of a director who at the time does not qualify as a
disinterested director with respect to the proceeding may not be voted
on the authorization.
14-2-854. Court-Ordered Indemnification and Advances for Expenses.
(a) A director who is a party to a proceeding because he or she is a
director may apply for indemnification or advance for expenses to the court
conducting the proceeding or to another court of competent jurisdiction. After
receipt of an application and after giving any notice it considers necessary,
the court shall:
(1) Order indemnification or advance for expenses if it
determines that the director is entitled to indemnification under this
part; or
(2) Order indemnification or advance for expenses if it
determines, in view of all the relevant circumstances, that it is fair
and reasonable to indemnify the director or to advance expenses to the
director, even if the director has not met the relevant standard of
conduct set forth in subsections (a) and (b) of Code Section
14-2-851, failed to comply with Code Section 14-2-853, or was adjudged
liable in a proceeding referred to in paragraph (1) or (2) of
subsection (d) of Code Section 14-2-851, but if the director was
adjudged so liable, the indemnification shall be limited to reasonable
expenses incurred in connection with the proceeding.
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(b) If the court determines that the director is entitled to
indemnification or advance for expenses under this part, it may also order the
corporation to pay the director's reasonable expenses to obtain court-ordered
indemnification or advance for expenses.
14-2-855. Determination and Authorization of Indemnification.
(a) A corporation may not indemnify a director under Code Section
14-2-851 unless authorized thereunder and a determination has been made for a
specific proceeding that indemnification of the director is permissible in the
circumstances because he or she has met the relevant standard of conduct set
forth in Code Section 14-2-851.
(b) The determination shall be made:
(1) If there are two or more disinterested directors, by the
board of directors by a majority vote of all the disinterested
directors (a majority of whom shall for such purpose constitute a
quorum) or by a majority of the members of a committee of two or more
disinterested directors appointed by such a vote;
(2) By special legal counsel:
(A) Selected in the manner prescribed in paragraph (1) of
this subsection; or
(B) If there are fewer than two disinterested directors,
selected by the board of directors (in which selection directors
who do not qualify as disinterested directors may participate) or
(3) By the shareholders, but shares owned by or voted under the
control of a director who at the time does not qualify as a
disinterested director may not be voted on the determination.
(c) Authorization of indemnification or an obligation to indemnify and
evaluation as to reasonableness of expenses shall be made in the same manner as
the determination that indemnification is permissible, except that if there are
fewer than two disinterested directors or if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subparagraph
(b)(2)(B) of this Code section to select special legal counsel.
14-2-856. Shareholder Approved Indemnification.
(a) If authorized by the articles of incorporation or a bylaw,
contract, or resolution approved or ratified by the shareholders by a majority
of the votes entitled to be cast, a corporation may indemnify or obligate itself
to indemnify a director made a party to a proceeding including a proceeding
brought by or in the right of the corporation, without regard to the limitations
in other Code sections of this part, but shares owned or voted under the control
of a director who at the time does not qualify as a disinterested director with
respect to any existing or threatened proceeding that would be covered by the
authorization may not be voted on the authorization.
(b) The corporation shall not indemnify a director under this Code
section for any liability incurred in a proceeding in which the director is
adjudged liable to the corporation or is subjected to injunctive relief in favor
of the corporation:
(1) For any appropriation, in violation of the director's duties,
of any business opportunity of the corporation;
(2) For acts or omissions which involve intentional misconduct or
a knowing violation of law;
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(3) For the types of liability set forth in Code Section
14-2-832; or
(4) For any transaction from which he or she received an improper
personal benefit.
(c) Where approved or authorized in the manner described in subsection
(a) of this Code section, a corporation may advance or reimburse expenses
incurred in advance of final disposition of the proceeding only if:
(1) The director furnishes the corporation a written affirmation
of his or her good faith belief that his or her conduct does not
constitute behavior of the kind described in subsection ((b)) of this
Code section; and
(2) The director furnishes the corporation a written undertaking,
executed personally or on his or her behalf, to repay any advances if
it is ultimately determined that the director is not entitled to
indemnification under this Code section.
14-2-857. Indemnification of Officers, Employees, and Agents.
(a) A corporation may indemnify and advance expenses under this part
to an officer of the corporation who is a party to a proceeding because he or
she is an officer of the corporation:
(1) To the same extent as a director; and
(2) If he or she is not a director, to such further extent as may
be provided by the articles of incorporation, the bylaws, a resolution
of the board of directors, or contract except for liability arising
out of conduct that constitutes:
(A) Appropriation, in violation of his or her duties, of any
business opportunity of the corporation;
(B) Acts or omissions which involve intentional misconduct
or a knowing violation of law;
(C) The types of liability set forth in Code Section
14-2-832; or
(D) Receipt of an improper personal benefit.
(b) The provisions of paragraph (2) of subsection (a) of this Code
section shall apply to an officer who is also a director if the sole basis on
which he or she is made a party to the proceeding is an act or omission solely
as an officer.
(c) An officer of a corporation who is not a director is entitled to
mandatory indemnification under Code Section 14-2-852, and may apply to a court
under Code Section 14-2-854 for indemnification or advances for expenses, in
each case to the same extent to which a director may be entitled to
indemnification or advances for expenses under those provisions.
(d) A corporation may also indemnify and advance expenses to an
employee or agent who is not a director to the extent, consistent with public
policy, that may be provided by its articles of incorporation, bylaws, general
or specific action of its board of directors, or contract.
14-2-858. Insurance.
A corporation may purchase and maintain insurance on behalf of an
individual who is a director, officer, employee, or agent of the corporation or
who, while a director, officer, employee, or agent of the corporation, serves
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at the corporation's request as a director, officer, partner, trustee, employee,
or agent of another domestic or foreign corporation, partnership, joint venture,
trust, employee benefit plan, or other entity against liability asserted against
or incurred by him or her in that capacity or arising from his or her status as
a director, officer, employee, or agent, whether or not the corporation would
have power to indemnify or advance expenses to him or her against the same
liability under this part.
14-2-859. Application of Part.
(a) A corporation may, by a provision in its articles of incorporation
or bylaws or in a resolution adopted or a contract approved by its board of
directors or shareholders, obligate itself in advance of the act or omission
giving rise to a proceeding to provide indemnification or advance funds to pay
for or reimburse expenses consistent with this part. Any such obligatory
provision shall be deemed to satisfy the requirements for authorization referred
to in subsection (c) of Code Section 14-2-853 or subsection (c) of Code
Section 14-2-855. Any such provision that obligates the corporation to provide
indemnification to the fullest extent permitted by law shall be deemed to
obligate the corporation to advance funds to pay for or reimburse expenses in
accordance with Code Section 14-2-853 to the fullest extent permitted by law,
unless the provision specifically provides otherwise.
(b) Any provision pursuant to subsection (a) of this Code section
shall not obligate the corporation to indemnify or advance expenses to a
director of a predecessor of the corporation, pertaining to conduct with respect
to the predecessor, unless otherwise specifically provided. Any provision for
indemnification or advance for expenses in the articles of incorporation,
bylaws, or a resolution of the board of directors or shareholders, partners, or,
in the case of limited liability companies, members or managers of a predecessor
of the corporation or other entity in a merger or in a contract to which the
predecessor is a party, existing at the time the merger takes effect, shall be
governed by paragraph (3) of subsection (a) of Code Section 14-2-1106.
(c) A corporation may, by a provision in its articles of
incorporation, limit any of the rights of indemnification or advance for
expenses created by or pursuant to this part.
(d) This part does not limit a corporation's power to pay or reimburse
expenses incurred by a director or an officer in connection with his or her
appearance as a witness in a proceeding at a time when he or she is not a party.
(e) Except as expressly provided in Code Section 14-2-857, this part
does not limit a corporation's power to indemnify, advance expenses to, or
provide or maintain insurance on behalf of an employee or agent.
Articles of Incorporation Authority
Article 14 of the Company's Amended and Restated Articles of
Incorporation provides:
In addition to any powers provided by law, in the Bylaws, or otherwise,
the Corporation shall have the power to indemnify any person who becomes a party
or who is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (including any action by or in the right of the Corporation), by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
Bylaw Authority
Article VII of the Company's Amended and Restated Bylaws provides:
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SECTION 1. Definitions.
As used in this Article, the term:
(A) "Corporation" includes any domestic or foreign predecessor entity
of this Corporation in a merger or other transaction in which the predecessor's
existence ceased upon consummation of the transaction.
(B) "Director" means an individual who is or was a director of the
Corporation or an individual who, while a director of the Corporation, is or was
serving at the Corporation's request as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, or other entity. A "director" is
considered to be serving an employee benefit plan at the Corporation's request
if his duties to the Corporation also impose duties on, or otherwise involve
services by, him to the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the estate or
personal representative of a director.
(C) "Disinterested director" means a director who at the time of a
vote referred to in Section 3(C) or a vote or selection referred to in
Section 4(B), 4(C) or 7(A) is not: (i) a party to the proceeding; or (ii) an
individual who is a party to a proceeding having a familial, financial,
professional, or employment relationship with the director whose indemnification
or advance for expenses is the subject of the decision being made with respect
to the proceeding, which relationship would, in the circumstances, reasonably be
expected to exert an influence on the director's judgment when voting on the
decision being made.
(D) "Employee" means an individual who is or was an employee of the
Corporation or an individual who, while an employee of the Corporation, is or
was serving at the Corporation's request as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise.
An "Employee" is considered to be serving an employee benefit plan at the
Corporation's request if his duties to the Corporation also impose duties on, or
otherwise involve services by, him to the plan or to participants in or
beneficiaries of the plan. "Employee" includes, unless the context requires
otherwise, the estate or personal representative of an employee.
(E) "Expenses" includes counsel fees.
(F) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred with respect to a proceeding.
(G) "Officer" means an individual who is or was an officer of the
Corporation which for purposes of this Article VII shall include an assistant
officer, or an individual who, while an Officer of the Corporation, is or was
serving at the Corporation's request as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, or other entity. An "Officer" is
considered to be serving an employee benefit plan at the Corporation's request
if his duties to the Corporation also impose duties on, or otherwise involve
services by, him to the plan or to participants in or beneficiaries of the plan.
"Officer" includes, unless the context requires otherwise, the estate or
personal representative of an Officer.
(H) "Official capacity" means: (i) when used with respect to a
director, the office of a director in a corporation; and (ii) when used with
respect to an Officer, the office in a corporation held by the Officer. Official
capacity does not include service for any other domestic or foreign corporation
or any partnership, joint venture, trust, employee benefit plan, or other
entity.
(I) "Party" means an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(J) "Proceeding" means any threatened, pending or completed action,
suit, or proceeding, whether civil, criminal, administrative, arbitrative or
investigative and whether formal or informal.
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SECTION 2. Basic Indemnification Arrangement.
(A) Except as provided in subsections 2(D) and 2(E) below and, if
required by Section 4 below, upon a determination pursuant to Section 4 in the
specific case that such indemnification is permissible in the circumstances
under this subsection because the individual has met the standard of conduct set
forth in this subsection (A), the Corporation shall indemnify an individual who
is made a party to a proceeding because he is or was a director or Officer
against liability incurred by him in the proceeding if he conducted himself in
good faith and, in the case of conduct in his official capacity, he reasonably
believed such conduct was in the best interest of the Corporation, or in all
other cases, he reasonably believed such conduct was at least not opposed to the
best interests of the Corporation and, in the case of any criminal proceeding,
he had no reasonable cause to believe his conduct was unlawful.
(B) A person's conduct with respect to an employee benefit plan for a
purpose he believes in good faith to be in the interests of the participants in
and beneficiaries of the plan is conduct that satisfies the requirement of
subsection 2(A) above.
(C) The termination of a proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the proposed indemnitee did not meet the standard of
conduct set forth in subsection 2(A) above.
(D) The Corporation shall not indemnify a person under this Article in
connection with (i) a proceeding by or in the right of the Corporation, except
for reasonable expenses incurred in connection with the proceeding if it is
determined that such person has met the relevant standard of conduct under this
section, or (ii) with respect to conduct for which such person was adjudged
liable on the basis that personal benefit was improperly received by him,
whether or not involving action in his official capacity.
SECTION 3. Advances for Expenses.
(A) The Corporation may advance funds to pay for or reimburse the
reasonable expenses incurred by a director or Officer who is a party to a
proceeding because he is a director or Officer in advance of final disposition
of the proceeding if: (i) such person furnishes the Corporation a written
affirmation of his good faith belief that he has met the relevant standard of
conduct set forth in subsection 2(A) above or that the proceeding
involves conduct for which liability has been eliminated under the Corporation's
Articles of Incorporation; and (ii) such person furnishes the Corporation a
written undertaking meeting the qualifications set forth below in subsection
3(B), executed personally or on his behalf, to repay any funds advanced if it
is ultimately determined that he is not entitled to any indemnification under
this Article or otherwise.
(B) The undertaking required by subsection Section 3(A)(ii) above
must be an unlimited general obligation of the director or Officer but need not
be secured and shall be accepted without reference to financial ability to make
repayment.
(C) Authorizations under this Section shall be made: (i) By the Board
of Directors: (a) when there are two or more disinterested directors, by a
majority vote of all disinterested directors (a majority of whom shall for such
purpose constitute a quorum) or by a majority of the members of a committee of
two or more disinterested directors appointed by such a vote; or (b) when there
are fewer than two disinterested directors, by a majority of the directors
present, in which authorization directors who do not qualify as disinterested
directors may participate; or (ii) by the shareholders, but shares owned or
voted under the control of a director who at the time does not qualify as a
disinterested director with respect to the proceeding may not be voted on the
authorization.
SECTION 4. Authorization of and Determination of Entitlement to Indemnification.
(A) The Corporation shall not indemnify a director or Officer under
Section SECTION 2 above unless authorized thereunder and a determination has
been made for a specific proceeding that indemnification of such person is
permissible in the circumstances because he has met the relevant standard of
conduct set forth in subsection 2(A) above; provided, however, that
regardless of the result or absence of any such determination, to the extent
that a
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director or Officer has been wholly successful, on the merits or otherwise, in
the defense of any proceeding to which he was a party because he is or was a
director or Officer, the Corporation shall indemnify such person against
reasonable expenses incurred by him in connection therewith.
(B) The determination referred to in subsection 4(A) above
shall be made:
(i) If there are two or more disinterested directors, by the
Board of Directors by a majority vote of all the disinterested
directors (a majority of whom shall for such purpose constitute a
quorum) or by a majority of the members of a committee of two or more
disinterested directors appointed by such a vote;
(ii) by special legal counsel:
(1) selected by the Board of Directors or its committee in
the manner prescribed in subdivision (i); or
(2) If there are fewer than two disinterested directors,
selected by the Board of Directors (in which selection directors
who do not qualify as disinterested directors may participate);
or
(iii) by the shareholders; but shares owned by or voted under the
control of a director who at the time does not qualify as a disinterested
director may not be voted on the determination.
(C) Authorization of indemnification or an obligation to indemnify and
evaluation as to reasonableness of expenses of a director or Officer in the
specific case shall be made in the same manner as the determination that
indemnification is permissible, as described in subsection SECTION 4((B)) above,
except that if there are fewer than two disinterested directors or if the
determination is made by special legal counsel, authorization of indemnification
and evaluation as to reasonableness of expenses shall be made by those entitled
under subsection 4(B)(ii)(2) above to select counsel.
(D) The Board of Directors, a committee thereof, or special legal counsel
acting pursuant to subsection (ii) above or Section 5 below, shall act
expeditiously upon an application for indemnification or advances, and cooperate
in the procedural steps required to obtain a judicial determination under
Section 5 below.
(E) The Corporation may, by a provision in its Articles of Incorporation or
Bylaws or in a resolution adopted or a contract approved by its Board of
Directors or shareholders, obligate itself in advance of the act or omission
giving rise to a proceeding to provide indemnification or advance funds to pay
for or reimburse expenses consistent with this part. Any such obligatory
provision shall be deemed to satisfy the requirements for authorization referred
to in Section 3(C) or Section 4(C).
SECTION 5. Court-Ordered Indemnification and Advances for Expenses.
A director or Officer who is a party to a proceeding because he is a
director or Officer may apply for indemnification or advances for expenses to
the court conducting the proceeding or to another court of competent
jurisdiction. After receipt of an application and after giving any notice it
considers necessary, the court shall order indemnification or advances for
expenses if it determines that:
(i) The director is entitled to indemnification under this part; or
(ii) In view of all the relevant circumstances, it is fair and
reasonable to indemnify the director or Officer or to advance expenses to
the director or Officer, even if the director or Officer has not met the
relevant standard of conduct set forth in subsection 2(A) above, failed to
comply with Section 3, or was adjudged liable in a proceeding referred to
in subsections (i) or (ii) of Section 2(D), but if the director or Officer
was adjudged so liable, the indemnification shall be limited to reasonable
expenses incurred in
11
<PAGE>
connection with the proceeding, unless the Articles of Incorporation of the
Corporation or a Bylaw, contract or resolution approved or ratified by
shareholders pursuant to Section 7 below provides otherwise.
If the court determines that the director or Officer is entitled to
indemnification or advance for expenses, it may also order the Corporation to
pay the director's or Officer's reasonable expenses to obtain court-ordered
indemnification or advance for expenses.
SECTION 6. Indemnification of Officers and Employees.
(A) Unless the Corporation's Articles of Incorporation provide otherwise,
the Corporation shall indemnify and advance expenses under this Article to an
employee of the Corporation who is not a director or Officer to the same extent,
consistent with public policy, as to a director or Officer.
(B) The Corporation may indemnify and advance expenses under this Article
to an Officer of the Corporation who is a party to a proceeding because he is an
Officer of the Corporation: (i) to the same extent as a director; and (ii) if he
is not a director, to such further extent as may be provided by the Articles of
Incorporation, the Bylaws, a resolution of the Board of Directors, or contract
except for liability arising out of conduct that is enumerated in subsections
(A)(i) through (A)(iv) of Section 7.
The provisions of this Section shall also apply to an Officer who is also a
director if the sole basis on which he is made a party to the proceeding is an
act or omission solely as an Officer.
SECTION 7. Shareholder Approved Indemnification.
(A) If authorized by the Articles of Incorporation or a Bylaw, contract or
resolution approved or ratified by shareholders of the Corporation by a majority
of the votes entitled to be cast, the Corporation may indemnify or obligate
itself to indemnify a person made a party to a proceeding, including a
proceeding brought by or in the right of the Corporation, without regard to the
limitations in other sections of this Article, but shares owned or voted under
the control of a director who at the time does not qualify as a disinterested
director with respect to any existing or threatened proceeding that would be
covered by the authorization may not be voted on the authorization. The
Corporation shall not indemnify a person under this Section 7 for any liability
incurred in a proceeding in which the person is adjudged liable to the
Corporation or is subjected to injunctive relief in favor of the Corporation:
(i) for any appropriation, in violation of his duties, of any business
opportunity of the Corporation;
(ii) for acts or omissions which involve intentional misconduct or a
knowing violation of law;
(iii) for the types of liability set forth in Section 14-2-832 of the
Georgia Business Corporation Code; or
(iv) for any transaction from which he received an improper personal
benefit.
(B) Where approved or authorized in the manner described in subsection 7(A)
above, the Corporation may advance or reimburse expenses incurred in advance of
final disposition of the proceeding only if:
(i) the proposed indemnitee furnishes the Corporation a written
affirmation of his good faith belief that his conduct does not constitute
behavior of the kind described in subsection 7(A)(i)-(iv)
above; and
(ii) the proposed indemnitee furnishes the Corporation a written
undertaking, executed personally, or on his behalf, to repay any advances
if it is ultimately determined that he is not entitled to indemnification.
12
<PAGE>
SECTION 8. Liability Insurance.
The Corporation may purchase and maintain insurance on behalf of an
individual who is a director, officer, employee, or agent of the Corporation or
who, while a director, officer, employee, or agent of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other entity
against liability asserted against or incurred by him in that capacity or
arising from his status as a director, officer, employee, or agent, whether or
not the Corporation would have power to indemnify him against the same liability
under Section 2 or Section 3 above.
SECTION 9. Witness Fees.
Nothing in this Article shall limit the Corporation's power to pay or
reimburse expenses incurred by a person in connection with his appearance as a
witness in a proceeding at a time when he is not a party.
SECTION 10. Report to Shareholders.
If the Corporation indemnifies or advances expenses to a director in
connection with a proceeding by or in the right of the Corporation, the
Corporation shall report the indemnification or advance, in writing, to
shareholders with or before the notice of the next shareholders' meeting.
SECTION 11. Severability.
In the event that any of the provisions of this Article (including any
provision within a single section, subsection, division or sentence) is held by
a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, the remaining provisions of this Article shall remain enforceable
to the fullest extent permitted by law.
SECTION 12. Indemnification Not Exclusive.
The rights of indemnification provided in this Article VII shall be in
addition to any rights which any such director, Officer, employee or other
person may otherwise be entitled by contract or as a matter of law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
Exhibit Number Description
-------------- -----------
4.1 Articles 5, 6, 7, 8, 11 and 13 of the Amended and
Restated Articles of Incorporation of the Company,
effective as of November 14, 1989, incorporated by
reference to Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the year ended December
31, 1989.
4.2 Articles I, IV, VII, VIII, X and XI of the Amended
and Restated Bylaws of the Company, effective as
of February 10, 1998, incorporated by reference to
Exhibit 3 to Registration Statement No. 333-46093.
13
<PAGE>
Exhibit Number Description
-------------- -----------
4.3 Equitable Securities Corporation Profit Sharing
Plan, as amended.
5.1 Opinion of Raymond D. Fortin, Esq., as to the
legality of the Common Stock being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Raymond D. Fortin, Esq. (contained in
his opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on Signature Page).
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;
(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 in such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and 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 Exchange Act that are
incorporated by reference in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered 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, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as
14
<PAGE>
expressed in the Securities Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
15
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933,
SunTrust Banks, Inc. 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 Atlanta, State of Georgia, on the 23rd day of
November, 1999.
SUNTRUST BANKS, INC.
By: /s/ L. Phillip Humann
-----------------------------------------
L. Phillip Humann
Chairman of the Board, President
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below, constitutes and appoints John W. Spiegel and Raymond D. Fortin, and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, to do any and all acts and things and execute,
in the name of the undersigned, any and all instruments which said
attorneys-in-fact and agents may deem necessary or advisable in order to enable
SunTrust Banks, Inc. to comply with the Securities Act of 1933 and any
requirements of the Securities and Exchange Commission in respect thereof, in
connection with the filing with the Securities and Exchange Commission of the
registration statement on Form S-8 under the Securities Act of 1933, including
specifically but without limitation, power and authority to sign the name of the
undersigned to such registration statement, and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and to perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully and to all intents and purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, and any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of the 23rd day of November, 1999.
/s/ L. Phillip Humann
- ---------------------------------
L. Phillip Humann Chairman of the Board, President,
Chief Executive Officer and Director
(Principal Executive Officer)
/s/ John W. Spiegel
- ---------------------------------
John W. Spiegel Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
/s/ William P. O'Halloran
- ---------------------------------
William P. O'Halloran Senior Vice President and Chief Accounting
Officer
(Principal Accounting Officer)
/s/ Richard G. Tilghman
- ---------------------------------
Richard G. Tilghman Director and Vice Chairman
/s/ J. Hyatt Brown
- ---------------------------------
J. Hyatt Brown Director
16
<PAGE>
/s/ Alston D. Correll
- ---------------------------------
Alston D. Correll Director
/s/ A. W. Dahlberg
- ---------------------------------
A. W. Dahlberg Director
/s/ David H. Hughes
- ---------------------------------
David H. Hughes Director
/s/ M. Douglas Ivester
- ---------------------------------
M. Douglas Ivester Director
/s/ Summerfield K. Johnston, Jr.
- ---------------------------------
Summerfield K. Johnston, Jr. Director
/s/ Joseph L. Lanier, Jr.
- ---------------------------------
Joseph L. Lanier, Jr. Director
/s/ Frank E. McCarthy
- ---------------------------------
Frank E. McCarthy Director
/s/ G. Gilmer Minor, III
- ---------------------------------
G. Gilmer Minor, III Director
/s/ Larry L. Prince
- ---------------------------------
Larry L. Prince Director
/s/ Scott L. Probasco, Jr.
- ---------------------------------
Scott L. Probasco, Jr. Director
/s/ R. Randall Rollins
- ---------------------------------
R. Randall Rollins Director
/s/ Frank S. Royal, M.D.
- ---------------------------------
Frank S. Royal, M.D. Director
/s/ James B. Williams
- ---------------------------------
James B. Williams Director
17
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit Number Description
- ---------------- -------------------------------------------------------------
4.1 Articles 5, 6, 7, 8, 11 and 13 of the Amended and Restated
Articles of Incorporation of the Company, effective as of
November 14, 1989, incorporated by reference to Exhibit 3.1
to the Company's Annual Report on Form 10-K for the year
ended December 31, 1989.
4.2 Articles I, IV, VII, VIII, X and XI of the Amended and
Restated Bylaws of the Company, effective as of February 10,
1998, incorporated by reference to Exhibit 3 to Registration
Statement No. 333-46093.
4.3 Equitable Securities Corporation Profit Sharing Plan, as
amended.
5.1 Opinion of Raymond D. Fortin, Esq., as to the legality of the
Common Stock being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Raymond D. Fortin, Esq. (contained in his opinion
filed as Exhibit 5.1).
24.1 Power of Attorney (included on Signature Page).
18
AMENDMENT TO THE
EQUITABLE SECURITIES CORPORATION
PROFIT SHARING PLAN
THIS AMENDMENT is made on this 13th day of October, 1999, by SunTrust
Equitable Securities Corporation (the "Company") to the Equitable Securities
Corporation Profit Sharing Plan (the "Plan"), to be effective December 31, 1999.
WHEREAS, the Company, formerly known as the Equitable Securities
Corporation, established the Plan effective July 1, 1975 for the benefit of its
eligible employees; and
WHEREAS, the Company was acquired by SunTrust Banks, Inc. effective on
January 2, 1998, and it is anticipated that the eligible employees of the
Company will be able to participate in the retirement and welfare benefit plans
of SunTrust Banks, Inc. on or after January 1, 2000; and
WHEREAS, the Company intends to maintain the Plan indefinitely for the
benefit of current participants and their beneficiaries, but desires to
eliminate all future contributions to the Plan.
NOW, THEREFORE, the Plan is hereby amended to cease all contributions
effective for periods after December 31, 1999.
IN WITNESS WHEREOF, the undersigned officer of the Company has executed
this instrument on behalf of the Company, pursuant to authorization of the board
of directors of the Company, on the date first written above.
SUNTRUST EQUITABLE SECURITIES CORPORATION
By: /s/ William P. Johnston
------------------------
Its: Chief Executive Officer
-----------------------
<PAGE>
FIRST AMENDMENT
TO THE
ADOPTION AGREEMENT FOR THE
EQUITABLE SECURITIES CORPORATION
PROFIT-SHARING PLAN AND TRUST
WHEREAS, Equitable Securities Corporation (hereinafter referred to as
"Employer") adopted the Adoption Agreement and the provisions of the First
American Corporation Prototype Defined Contribution Plan and Trust for the
benefit of its employees, titled the Equitable Securities Corporation
Profit-Sharing Plan; and
WHEREAS, the Employer reserved the right to amend the Adoption
Agreement; and
WHEREAS, the Employer wishes to amend the Adoption Agreement to change
the Plan Year end from June 30 to December 31;
NOW, THEREFORE, the Plan is hereby amended as follows:
I.
Delete Item 1(c)) in its entirety and substitute in lieu thereof the
following:
(c) For periods of time before July 1, 1988, the Plan Year shall end on
June 30. For periods of time after December 31, 1988, the Plan Year
shall end on December 31.
II.
The effective date of this Amendment is July 1, 1988.
III.
In all other respects, the Plan is hereby ratified and confirmed.
<PAGE>
IN WITNESS WHEREOF, this Amendment is executed this 29th day of
December, 1988.
EQUITABLE SECURITIES CORPORATION,
EMPLOYER
ATTEST:
/s/ William P. Johnston By: /s/ William H. Cammack
- ---------------------------- --------------------------
Secretary Chief Executive Officer
FIRST AMERICAN TRUST COMPANY,
N.A., TRUSTEE
ATTEST:
By: /s/ Barbara Shoulders
--------------------------
/s/ Sharon R. Orman Title: Trust Officer
- ----------------------------- -----------------------
<PAGE>
EQUITABLE SECURITIES CORPORATION
PROTOTYPE DEFINED CONTRIBUTION PLAN AND TRUST
ADOPTION AGREEMENT
SAVINGS PLAN
ADOPTED BY
Equitable Securities Corporation
- --------------------------------------------------------------------------------
(Name of Employer)
AS THE
Equitable Securities Corporation
Profit Sharing Plan
- --------------------------------------------------------------------------------
(Name of Plan)
Adoption Agreement #006 (Standardized)
Defined Contribution Basic Plan Document #01
<PAGE>
ADOPTION INFORMATION
THIS ADOPTION AGREEMENT, and the provisions of the Equitable Securities
Corporation Prototype Defined Contribution Plan and Trust, are hereby adopted by
the Employer named hereinafter in order to establish a qualified plan and trust
for the exclusive benefit of participating Employees of the Employer and their
beneficiaries,
Plan Name: Equitable Securities Corporation
-----------------------------------------------------------------
ITEM 1 PLAN INFORMATION.
(a) The Employer hereby
[ ] establishes the above-named Plan
[x] amends, restates and continues the above-named Plan, which was
originally effective on 7/1/75 ,
--------------------
[ ] amends, restates and continues as the above-named Plan the plan
previously named the ________________________________________,
which was originally effective on ___________________________,
by adopting the EQUITABLE SECURITIES CORPORATION PROTOTYPE DEFINED
CONTRIBUTION PLAN AND TRUST as established on 9/18/85 .
-----------------
(b) The Effective Date of this Plan adoption or amendment shall be
January 1, l992.
--------- --
(c) The Plan Year shall end on December 31.
-------------
(d) The Limitation Year shall be [x] the Plan Year.
[ ] the 12 consecutive month period
ending on ____________________.
(e) This Plan [ ] is [x] is not a Paired Plan.
Paired Plans (specify):
[ ] Equitable Securities Corporation Defined Contribution Basic Plan
Document #01, Adoption Agreement #: ____________________
(f) The Plan is a profit sharing plan which [x] does [ ] does not
contain Elective Deferral Contributions. (Note: the "does" box
should be elected only if Elective Deferral Contributions are
allowed in Item 8(a)).
1
<PAGE>
ITEM 2 EMPLOYER INFORMATION.
The Employer furnishes the following information:
Name Equitable Securities Corporation
-------------------------------------------------------------------
Business address: 511 Union Street, Suite 800, Nashville, TN 37219
------------------------------------------------------
Telephone number (including area code): (615) 780-9300
--------------------------------
Nature and principal location(s) of business: same as above
--------------------------
Four-digit business code number used on Form 5500: 6 7 4 9
--- --- --- ---
Date of incorporation or commencement of business: 7/1/72
-----------------------------
Employer's I.R.S. Employer Identification Number 62-087ll46
-------------------------------
Three-digit number assigned to the Plan: 0 0 1
--- --- ---
Employer's tax year ends: 6/30
------------------------------------------------------
Employer contributes to the following additional pension or profit sharing
plans: n/a
-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Type of Entity: [x] Corporation [ ] S Corporation
[ ] Sole Proprietorship [ ] Partnership [ ] Tax Exempt Organization
[ ] Professional Corporation [ ] Professional Association
Note: Tax Exempt Organizations may not elect Elective Deferral Contributions
in Item 8(a).
ITEM 3 PLAN ADMINISTRATION.
The Trustee shall be
(specify) Name: Equitable Trust Company
--------------------------------------------------------
Address: 511 Union Street, Suite 800, Nashville, TN 37219
---------------------------------------------------------------
Telephone Number: (615)780-9318
------------------------------------------------------
The Plan Administrator, whose duties are set forth in Article 9 of the Plan, and
the agent for service of process shall be
[x] The Employer, Attn: Larry Smith
--------------------------------------------------------
Telephone Number: (615) 780-9300
--------------------------------------------------------------
2
<PAGE>
[ ] Other (specify):
-----------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Telephone Number:
-----------------------------------------------------------
Address:
--------------------------------------------------------------------
ITEM 4 EMPLOYEE CLASSES EXCLUDED.
The following class(es) of Employees of the Employer and employers in the
Controlled Group shall not be eligible to participate in the Plan:
[x] (a) No exclusions.
[ ] (b) Employees covered by a collective bargaining agreement between the
Employer and representatives of such Employees in which retirement benefits were
the subject of good faith bargaining, except as otherwise provided in the
collective bargaining agreement. For this purpose, the term "representatives of
such Employees" shall not include any organization more than 1/2 of whose
members are Employees who are owners, officers or executives of the Employer.
Note: In this standardized plan Employees of all employers in the
Controlled Group must be allowed to participate if they meet the age
and service requirements and are not excluded under (b) above.
ITEM 5 ELIGIBILITY AND PARTICIPATION
(a) Eligibility: Employees shall become eligible to participate in the Plan upon
satisfaction of the following age and/or service requirements:
(1) Age requirement (check one block):
[ ] The Plan shall have no age requirement for eligibility,
[x] Attainment of age 21 (note: not more than age 21).
------
(2) Service requirement (check one block):
[x] The Plan shall have no service requirement for eligibility.
[ ] (note: not more than 1*) Years of Service.
--------
[ ] the date (note: not more than 12*) months after the day the
-------
Employee was first employed by the Employer.
*If this Adoption Agreement applies to any Plan Year beginning prior to
January 1, 1989, then the service requirement for each such Plan Year shall
be (note: the same as in the prior plan document).
Each Employee who has satisfied the above age and service requirements
as of the Effective Date of this adoption shall be eligible to become
a Participant on the Effective Date. If this is an amendment of a
plan,
3
<PAGE>
no Employee who has been a Participant under the Plan prior to this
amendment and who is otherwise eligible to participate in this Plan
shall be excluded from participation because of failure to satisfy the
above age and service requirements.
(b) Entry into Participation: An Employee who has satisfied the
requirements for eligibility set out in (a) above shall become a
Participant in the Plan on the entry date (as defined in this Item
5(b)) coincident with or immediately following the date on which he
satisfies the eligibility requirements.
The Plan shall have (check one block):
[ ] An annual entry date (the Anniversary Date). (Note: You can elect an
annual entry date only if the Plan's age requirement is 20-1/2 or less
and the Plan's service requirement is 6 months or less.)
[ ] Semi-annual entry dates (the Anniversary Date and the day 6 months
after the Anniversary Date).
[ ] Quarterly entry dates (the Anniversary Date and the days 3, 6, and 9
months after the Anniversary Date).
[ ] Monthly entry dates (the first day of each calendar month).
[x] Daily entry dates.
ITEM 6 MEASURING SERVICE.
- -------------------------
Service shall be determined for all purposes under the Plan on the basis
selected as follows. (Note: only one method may be selected. The method
selected shall be applied to all Employees covered under the Plan.)
Counting Hours of Service
Hours of Service shall be counted:
[xl (a) On the basis of actual hours for which an Employee is paid or
entitled to payment.
[ ] (b) On the basis of days worked: an Employee shall be credited with 10
Hours of Service if under Section 1.31 of the Plan such Employee
would be credited with at least 1 Hour of Service during the day.
[ ] (c) On the basis of weeks worked: an Employee shall be credited with 45
Hours of Service if under Section 1.31 of the Plan such Employee
would be credited with at least 1 Hour of Service during the week.
[ ] (d) On the basis of semi-monthly payroll periods: an Employee shall be
credited with 95 Hours of Service if under Section 1.31 of the Plan
such Employee would be credited with at least 1 Hour of Service
during the semi-monthly payroll period.
4
<PAGE>
[ ] (e) On the basis of months worked: an Employee shall be credited with
190 Hours of Service if under Section 1.31 of the Plan such
Employee would be credited with at least 1 Hour of Service during
the month.
Elapsed Time
------------
Instead of counting Hours of Service, Service under the Plan shall be
determined:
[ ] (f) On the basis of "elapsed time," as provided for in Section 1.31 of
the Plan.
ITEM 7 COMPENSATION.
- --------------------
(a) Compensation shall mean all of each Participant's (select one)
[x] W-2 earnings
[ ] total "compensation" (as that term is defined in Section 4.07(e)(2))
which is actually paid to the Participant during the Plan Year.
Note: Compensation for a Self-Employed Individual shall mean Earned
---- Income as defined in Section 1.15.
(b) Compensation
[ ] shall include
[x] shall not include
employer contributions made pursuant to a salary reduction agreement
which are not includible in the gross income of the Employee under a
401(k) plan (including this Plan, if applicable), a cafeteria plan
pursuant to Code Section 125, a simplified employee pension (SEP)
pursuant to Code Section 402(h) or a tax sheltered annuity pursuant to
Code Section 403(b).
(c) [x] Maximum: For purposes of the Plan, Compensation for any year shall
be limited to $ 200,000.00.
-----------
(d) Compensation of a Participant for purposes of Item ll (a) shall
include:
[ ] his Compensation for the entire Plan Year.
[ ] only his Compensation for the portion of the Plan Year during
which he was a Participant.
[ ] only his Compensation for the portion of the Plan Year commencing
with the first day of the month during which he became a
Participant.
Note: The above definition in Items 7(a) through (c) will apply as of the
---- Effective Date of this adoption or amendment; provided, however,
5
<PAGE>
that if this is an amendment of the Plan for the changes required
by the Tax Reform Act of 1986, then (i) the above definition will
first apply as of the first Plan Year beginning after the adoption
of this amendment, and (ii) the definition of "Compensation" for
earlier Plan Years to which this Adoption Agreement applies shall
be the definition from the prior plan document, which shall be
incorporated herein by reference.
(e) For Plan Years beginning before the later of January 1, 1992 and the
date that is 60 days after the publication of final regulations,
Compensation used in determining the Average Deferral Percentage under
Section 3.05 and the Average Contribution Percentage under Section 3.06
[ ] shall [ ] shall not be limited to Compensation received by the
Participant during the period for which he is a Participant.
ITEM 8 EMPLOYER CONTRIBUTIONS AND FORFEITURES.
- ----------------------------------------------
Contributions Made by the Employer.
-----------------------------------
Matching Contributions, Employer Contributions and Qualified Matching
Contributions shall be (elect one) [ ] out of Net Profits [X] without
regard to Net Profits.
(a) Elective Deferral Contributions. Elective Deferral Contributions are
"pre-tax" contributions made by Participants; however, they are
technically considered contributions made by the Employer. They are
always 100% vested.
(1) Elective Deferral Contributions to the Plan
[ ] shall not be allowed.
[x] shall be allowed. (If this item is checked complete (2)
through (6) below).
(2) A Participant may elect to have his or her Compensation reduced by
the following percentage or amount per pay period, or for a
specified pay period or periods, as designated in writing to the
Plan Administrator (check applicable boxes and fill in blanks):
[x] a percentage of Compensation of not less than 0% and not more
than 15%.
[ ] The Participant's elective deferral percentage must be
in whole percentages.
[ ] a dollar amount not less than $_______each pay period and not
more than_____% of Compensation.
Elective Deferral Contributions made on behalf of a Participant in any
taxable year may not exceed
[x] $7,000 as adjusted annually pursuant to Code Section 402(g).
6
<PAGE>
[ ] $___ (note: if you want to apply a lower dollar limit insert
a dollar amount not exceeding the $7,000 limit under Code
Section 402(g)).
(3) A Participant's Elective Deferral Contributions shall be based on
total Compensation as defined in Item 7(a) while a Participant;
provided, however, that Elective Deferral Contributions [x] shall
[ ] shall not be based on bonuses. If Elective Deferral
Contributions shall be based on bonuses then in order to have
Elective Deferral Contributions based on bonuses a Participant
[ ] does [ ] does not need to make a special election.
(4) A Participant may elect to begin Elective Deferral Contributions
as of the first payroll period following: (elect each one that
applies)
[ ] the first day of the Plan Year.
[ ] the first day of the seventh month of the Plan Year (note: for
example, if the Plan Year is a calendar year this would be
July 1st).
[x] any date.
[ ] other:________________________________________________________
________________________________________________________
(5) A Participant's election to have Elective Deferral Contributions
begin shall remain in effect until changed or terminated.
A Participant may make a written election to change the amount or
percentage of his or her future Elective Deferral Contributions as
of the first payroll period following: (elect each one that
applies)
[ ] the first day of the Plan Year.
[X] the first day of the seventh month of the Plan Year (note: for
example, if the Plan Year is a calendar year this would be
July 1st).
[ ] other:________________________________________________________
________________________________________________________
(6) Participants who claim Excess Elective Deferrals for the preceding
taxable year must submit their claims in writing to the Plan
Administrator by March 15 (specify a date before April 15).
(b) Matching Contributions. Matching Contributions are contributions made
by the Employer, the amounts of which are based on the amount of
Elective Deferral Contributions and/or Employee (after-tax)
Contributions (depending on the Employer's elections) which the
Participant makes. Matching Contributions may be subject to a vesting
schedule.
7
<PAGE>
(1) The Employer [x] shall [ ] shall not make Matching Contributions
to the Plan on behalf of certain Participants who make ~eligible
contributions.. (If Matching Contributions shall be made complete
items (2) through (5) below.)
(2) "Eligible contributions" shall include (elect one or both, as
applicable)
[x] Elective Deferral (Pre-Tax) Contributions.
[ ] Employee (After-Tax) Contributions.
(3) Matching Contributions shall be made on behalf of [ ] all
Participants [x] only Non-Highly Compensated Participants who
(elect one):
[ ] make eligible contributions during the Plan Year.
[x] make eligible contributions during the Plan Year and satisfy
the service requirements of Section 4.01(c), subject to the
election in Item 12 regarding termination during the year.
(4) The Employer shall make the following amount of Matching
Contributions on behalf of "eligible Participants" as defined in
Item 8(b)(3) above (elect one and fill in blanks):
[ ] an amount equal to ___ percent of the portion of the eligible
contributions of each eligible Participant for the Plan Year
which does not exceed ___ percent of the Participant's
Compensation for the Plan Year
PLUS
an amount equal to ___ percent of the portion of the eligible
contributions which exceeds ___ percent of the eligible
Participant's Compensation for the Plan Year, but does not exceed
___ percent of the Participant's Compensation for the Plan Year.
The Employer [ ] shall [ ] shall not have discretion to increase
the contribution percentage.
[ ] an amount equal to ___ percent of the first $___ of each
eligible Participant's eligible contributions for the
Plan Year
PLUS
an amount equal to ___ percent of the portion of the eligible
contributions for the Plan Year which exceeds $___ of the
Participant's eligible contributions for the Plan Year but does
not exceed $___.
8
<PAGE>
The Employer [ ] shall [ ] shall not have discretion to increase
the contribution percentage.
[x] an amount which shall be determined at the discretion of the
Employer; any amount so contributed shall be allocated among
Participants based on matching amounts to be determined by Board
of Directors annually
[ ] each eligible Participant's eligible contributions not
exceeding ___ percent of the Participant's Compensations for
the Plan Year.
[x] the first $2,000.00 of each eligible Participants eligible
contributions for the Plan Year.
(5) Matching Contributions shall be vested in accordance with the
following schedule (elect one):
[ ] 100% vested when made.
[x] the general vesting schedule elected in Item 16.
Note: Choosing to make Matching Contributions 100% vested is not
---- sufficient to allow them to be used in the ADP special
nondiscrimination test. If you want matching-type
contributions to be used in the ADP test, you should elect
Qualified Matching Contributions under 8(d) below.
(c) Qualified Non-elective Contributions. Qualified Non-elective
Contributions are contributions made by the Employer which are used to
help the Plan pass the special nondiscrimination test. The amount of
Qualified Non-elective Contributions made for each Plan Year shall be
determined by the Employer. Qualified Non-elective Contributions are
always 100% vested.
(1) The Employer [ ] may [x] may not make Qualified Non-elective
Contributions to the Plan. (If Qualified Non-elective
Contributions shall be made complete items (2) and (3) below.)
(2) Qualified Non-elective Contribution shall be made on behalf of [ ]
all Employees [ ] only Non-Highly Compensated Employees who (elect
one):
[ ] are eligible to make Elective Deferral Contributions at any
time during the Plan Year.
[ ] satisfy the service requirements of Section 4.01(c), subject
to the election in Item 12 regarding termination during the
year.
(3) Qualified Non-elective Contributions shall be allocated to the
Qualified Non-elective Contributions Account of "eligible
Employees" as defined in Item 8(c)(2) (elect one):
9
<PAGE>
[ ] In the ratio in which each eligible Employees Compensation
for the Plan Year bears to the total Compensation of all
eligible Employees for such Plan Year.
[ ] In the ratio in which each eligible Employee's Compensation
not in excess of $___ for the Plan Year bears to the total
Compensation of all eligible Employees not in excess of $ ___
for such Plan Year.
(d) Qualified Matching Contributions. Qualified Matching Contributions are
contributions made by the Employer which are used to help the Plan pass
the special nondiscrimination tests. The amount of the Qualified
Matching Contribution is based on the amount of Elective Deferral
Contributions which eligible Participants elect. Qualified Matching
Contributions are always 100% vested.
(1) The Employer [ ] shall [ ] shall not make Qualified Matching
Contributions to the Plan on behalf of eligible Participants who
make Elective Deferral Contributions. (If Qualified Matching
Contributions shall be made complete items (2) and (3) below.)
(2) Qualified Matching Contributions shall be made on behalf of [ ] all
Participants [ ] only Non-Highly Compensated Participants who
(elect one):
[ ] make Elective Deferral Contributions during the Plan Year.
[ ] make Elective Deferral Contributions during the Plan Year and
satisfy the service requirements of Section 4.01(c), subject to
the election in Item 12 regarding termination during the year.
(3) The Employer shall make the following amount of Qualified Matching
Contributions to "eligible Participants" as defined in Item 8(d)(2)
(elect one):
[ ] an amount equal to ___ percent of the portion of the Elective
Deferral Contributions of each eligible Participant for the
Plan Year which does not exceed ___ percent of the
Participant's Compensation for the Plan Year
PLUS
an amount equal to ___ percent of the portion of the Elective
Deferral Contributions which exceeds ___ percent of the
eligible Participant's Compensation for the Plan Year, but does
not exceed ___ percent of the Participant's Compensation for
the Plan Year.
The Employer [ ] shall [ ] shall not have discretion to
increase the contribution percentage.
10
<PAGE>
[ ] an amount equal to ___ percent of the first $___ of each
eligible Participant's Elective Deferral Contributions for
the Plan Year
PLUS
an amount equal to ___ percent of the portion of the Elective
Deferral Contributions for the Plan Year which exceeds $___ of
the Participant's Elective Deferral Contributions for the
Plan Year but does not exceed $___.
The Employer [ ] shall [ ] shall not have discretion to
increase the contribution percentage.
[ ] a percentage which shall be determined at the discretion of
the Employer based on
[ ] each eligible Participant's Elective Deferral Contributions
not exceeding ___ percent of the Participant's Compensations
for the Plan Year.
[ ] the first $___ of each eligible Participants Elective Deferral
Contributions for the Plan Year.
(e) Employer Contributions. Employer Contributions are contributions made
by the Employer which are profit sharing-type contributions. These
contributions shall be subject to a vesting schedule.
(1) The Employer [x] shall [ ] shall not make Employer Contributions to
the Plan on behalf of eligible Participants. (If Employer
Contributions shall be made, complete item (2) below.)
(2) The amount of Employer Contributions made to the Plan for each Plan
Year shall be (elect one):
[x] such amount as the Employer, in its sole discretion, shall
elect to contribute for the Plan Year.
[ ] other (describe, but note: must be in accordance with
generally accepted accounting principles):_____________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(f) Calendar Year Election. For purposes of determining which Employees are
Highly Compensated Employees pursuant to Section 1.30 of the Plan, the
Employer [x] shall [ ] shall not make the "look-back year calculation"
on the basis of the calendar year ending with or within the applicable
Plan Year, rather than the "look-back year."
Note: If the Plan Year is already a calendar year, then if you elect
---- "shall" above, you will not need to make separate look-back
year and determination year calculations.
11
<PAGE>
Forfeitures.
-----------
(g) Forfeitures of Employer Contributions shall be (note: elect one):
[x] allocated in the same manner as Employer Contributions.
[ ] treated as if they are Employer contributions and thus reduce the
amount otherwise to be made as an actual contribution by the
Employer.
(h) Forfeitures of Matching Contributions shall be (elect one):
[ ] allocated in the same manner as Matching Contributions.
[ ] treated as if they are Employer contributions and thus reduce the
amount otherwise required as an actual contribution by the
Employer.
(i) If a Participant receives a distribution from his Employer Account or
Matching Account upon termination of Service and is reemployed by the
Employer before he incurs 5 consecutive Breaks in Service (or in Plan
Years beginning before January 1, 1985, before he incurs a Break in
Service), then he [ ] will be required [ ] will not be required to
repay the entire amount of the distribution in order to have his
Forfeiture reestablished under the Plan.
Note: See Item 16(d) for additional provisions affecting Forfeitures.
----
ITEM 9 PARTICIPANT CONTRIBUTIONS AND TRANSFERS.
- -----------------------------------------------
Participant Contributions.
--------------------------
The following Participant contributions may be made, subject to the
provisions of Section 3.03 of the Plan,
(a) Employee Contributions. Employee Contributions are nondeductible
"after-tax" contributions made by Participants which are always 100%
vested.
(1) Employee Contributions to the Plan
[x] shall not be allowed.
[ ] shall be allowed but shall not be required for
participation in the Plan. (If this item is checked
complete (2) through (6) below)
[ ] shall be required for participation in the Plan, in the
amount of ___% of Compensation. (If this item is checked,
complete (2) through (6) below)
(2) Employee Contributions
[ ] shall be made regularly by payroll deduction, and shall
share in investment Income for the Plan Year for which
made.
12
<PAGE>
[ ] shall be made as determined by the Participant, and [ ]
shall [ ] shall not share in investment Income for the
Plan Year for which made.
(3) A Participant may elect to contribute the following percent or
amount of Compensation, as defined in Item 7(a) and subject to the
exclusions in 7(c), per pay period (if contributions are made
regularly by payroll deduction) or per Plan Year (if Employee
Contributions are made as determined by the Participant):
[ ] a percentage of Compensation of not less than____% and not more
than____%.
[ ] The Participant's contribution percentage must be in whole
percentages.
[ ] a dollar amount not less than $_____ and not more than_____% of
Compensation.
(4) A Participant may elect to begin Employee Contributions as of the
first payroll period following: (elect each one that applies)
[ ] the first day of the Plan Year.
[ ] the first day of the seventh month of the Plan Year (note:
for example, if the Plan Year is a calendar year this would be
July 1st).
[ ] other:_________________________________________________________
_______________________________________________________________
(5) A Participant's election to have Employee Contributions begin shall
remain in effect until changed or terminated.
A Participant may make a written election to change the amount or
percentage of his or her Employee Contributions as of the first
payroll period following: (elect each one that applies)
[ ] the first day of the Plan Year.
[ ] the first day of the seventh month of the Plan Year (note: for
example, if the Plan Year is a calendar year this would be July
1st).
[ ] other:
(6) Employee Contributions shall be (elect one):
[ ] combined with other Plan assets for investment purposes.
[ ] invested separately from other Plan assets in an account
consisting of certificates of deposit, money market
certificates, collective investment trusts, other short-term
13
<PAGE>
debt security instruments or any other investments acceptable
to the Trustee.
(b) Rollover Contributions from other qualified plans and individual
retirement accounts which were conduits for distributions from other
qualified plans
[ ] shall not be allowed.
[x] shall be allowed.
Trustee-to-Trustee Transfers
----------------------------
(c) Direct Trustee-to-Trustee Transfers (pursuant to Section 10.15 of the
Plan) from other qualified plans
[ ] shall not be allowed.
[x] shall be allowed.
ITEM 10 INVESTMENTS.
- --------------------
(a) Investment decisions shall be controlled by (note: choose only one
option from (a)
[ ] the Trustee in its sole discretion.
[ ] an Investment Manager appointed by the Employer pursuant to the
provisions of Section 10.09 of the Plan.
[ ] the Employer, pursuant to the provisions of Section 10.10 of the
Plan.
[X] each Participant, with respect to his Accounts, pursuant to the
provisions of Section 10.11 of the Plan.
[ ] (b) Although the Trustee, the Employer, or an Investment Manager has
been designated above to control investments, the Plan
Administrator may elect to permit each Participant to have the
right, at his discretion, to control the investment of the vested
amount of his Account (s), if permitted by the Committee, pursuant
to the provisions of Section 10.11 of the Plan. (Note: this option
should not be chosen if the last option in (a) was chosen.)
[x] (c) Investment by the Plan in Qualifying Employer Securities shall
be permitted to a maximum of 100% (note: not more than 100%) of [ ]
that Portion of the Trust Fund attributable to Employer
contributions and Forfeitures [x] the value of the entire Trust
Fund (note: election of this second option may require the
registration of such securities with the Securities and Exchange
Commission). With respect to the voting of such Qualifying Employer
Securities, the following entity shall vote such shares (note:
select only one):
[ ] the Trustee.
14
<PAGE>
[x] the Participant to whose account the shares have been
allocated.
[ ] the Plan Administrator or, if appointed, the Committee.
[x] (d) The Trustee may delegate its duty to physically hold and safeguard
the assets of the Plan to the Sponsor as custodian.
ITEM 11 ALLOCATION OF EMPLOYER CONTRIBUTIONS.
- ---------------------------------------------
This Plan may be either non-integrated or integrated with Social Security.
(Note: Choose one method only. Complete only if Employer Contributions may
be made under the Plan.)
[ ] (a) NON-INTEGRATED
Employer Contributions (and Forfeitures, if to be allocated in the same
manner as Employer Contributions pursuant to Item 8) shall be
allocated, pursuant to the provisions of Sections 4.01 and 4.02 of the
Plan, to each Participant's Employer Account in the proportion that
such Participant's Compensation for the Plan Year bears to the total
Compensation for the Plan Year of all Participants entitled to share in
the allocation.
-----------------------------------------------------
[x] (b) INTEGRATED
(Note: If this Plan is a Paired Plan, integration with Social Security
is permitted in one Paired Plan only.)
(l) The integration break-point for the Plan shall be
[ ] the Taxable Wage Base in effect at the beginning of the Plan
Year.
[ ] $____________ (note: not greater than the Taxable Wage Base in
effect as of the beginning of the first Plan Year to which this
election applies)
[ ] _____________% of the Taxable Wage Base in effect at the
beginning of the Plan Year (not to exceed 100%).
(2) The disparity between the percentage of Compensation allocated
below the integration break-point and the percentage of
Compensation allocated above the integration break-point shall not
exceed max % of Compensation. Note: if the maximum permissible
degree of integration is desired, insert the term "Max" in this
blank. "Max" shall mean the greater of (i) 5.7%, and (ii) the
Employer's Social Security tax rate which is attributable to
old-age insurance. If the second option has been elected in Item
ll(b)(l) and if the integration break-point exceeds the greater of
$10,000 or one-fifth of the Taxable Wage Base in effect as of the
beginning of the Plan Year but is less than the Taxable Wage Base,
then the "Max" shall be reduced based on the following chart:
15
<PAGE>
If the integration break-point the 5.7
------------------------------ percent factor
in the maximum
Is more But not more disparity allowance
than than is reduced to -
-----------------------------------------------------------------------
X* 80% of Taxable 4.3%
Wage Base
80% of Y** 5.4%
Taxable
Wage Base
-----------------------------------------------------------------------
* X - the greater of $10,000 or 20% of the Taxable Wage Base.
** Y - any amount more than 80% of the Taxable Wage Base but less than
100% of the Taxable Wage Base.
(3) If an Employee's entry date for participation in the Plan is not
the Anniversary Date, then the integration break-point elected
above [ ] shall [ ] shall not be prorated in the Plan Year in which
the Participant enters or reenters the Plan in the ratio that the
length of the Participant's participation in the Plan that Plan
Year bears to the length of that entire Plan Year.
Note: If this Adoption Agreement applies to any Plan Year beginning
---- prior to January 1, 1989, then the method for allocating
Employer Contributions and applying Forfeitures for each such
Plan Year shall be the method provided for in the prior plan
document, which shall be incorporated herein by reference. The
elections under this Item shall also be subject to such
modifications as may be necessary pursuant to the Employer's
election under IRS Notice 88-131, or subsequent IRS relief
procedures, related to benefit accruals which occur before the
adoption of this Adoption Agreement.
ITEM 12 ALLOCATION IN YEAR OF TERMINATION.
- ------------------------------------------
In performing each annual allocation of Employer Contributions (and
Matching Contributions, Qualified Non-elective Contributions, or Qualified
Matching Contributions if pursuant to the elections in Item 8 those
contributions are subject to this Item 12) former Participants who are no
longer employed on the allocation date shall be included:
[x] if they meet the Service requirement.
[ ] if they meet the Service requirement or terminated during the Plan
Year due to death, disability, or retirement.
[ ] regardless of whether they meet the Service requirement.
16
<PAGE>
Notes: (1) Service Requirement. If the Plan provides in Item 6 for
----- counting Hours of Service, then the Service requirement for
sharing in the annual allocation of Employer Contributions
shall be 500 Hours during a Plan Year. If the Plan provides in
Item 6 for using the "elapsed time" method then the Participant
is required to have an Hour of Service during the Plan Year to
share in the annual allocation of Employer Contributions.
(2) If this Adoption Agreement applies to any Plan Year beginning
prior to January 1, 1989, then the determination as to whether
a former Participant will share in the allocation for such Plan
Years ahall be based on the method provided for in the prior
plan document which shall be incorporated herein by reference.
ITEM 13 LOANS.
- --------------
(a) The Plan Administrator [ ] shall [x] shall not permit loans to
Participants and Beneficiaries pursuant to the provisions of Section
5.02 of the Plan. (If shall is checked please complete (b) below)
(b) The Plan's loan requirements shall be (check one)
[ ] (1) those standard requirements described in Section 5.02, subject
to the following elections:
(i) Plan loans may not be made for amounts less than $________
(note: fill in the blank with a dollar amount not
exceeding $1,000).
(ii) The total amount of a person's loan balance from the Plan
[ ] shall [ ] shall not be 1imited to an amount equal to
50% of such person's Vested Accounts Balance (note: if
shall not is elected only 50% of such person's Vested
Account Balance may be considered security and additional
security will be required).
[ ] (2) those requirements stated in Attachment B.
ITEM 14 IN-SERVICE WITHDRAWALS.
- -------------------------------
Withdrawals - Employer Contributions
[x] Withdrawals from a Participant's Employer Account shall not be
permitted.
[ ] If the requirements under Section 5.01(a) of the Plan are met,
withdrawals of up to ___% (note: not more than 100%) of a Participant's
vested interest in his Employer Account may be permitted.
Withdrawals of Employer Contributions shall be limited to the following
instances (note: 1 and 2 are optional; any combination (or neither) may
be selected).
17
<PAGE>
[ ] (1) A withdrawal shall be permitted only in the case of financial
hardship, as determined by the Plan Administrator in a uniform and
nondiscriminatory manner.
[ ] (2) A withdrawal shall be permitted only to those Participants (note:
if more than one is selected, the earliest shall apply)
[ ] who have____Years of Service.
[ ] who are eligible for early retirement under this Plan.
Withdrawals - Elective Deferral Contributions Hardship withdrawals
of the Participant's Elective Deferral Contributions
[ ] shall not be allowed.
[x] shall be allowed.
If hardship withdrawals of the Participants Elective Deferral Contributions are
allowed for Plan Years after December 31, 1988 such withdrawals [ ] may [ ] may
not be made as to Income on Elective Deferral Contributions as of December 31,
1988.
Withdrawals - Voluntary Employee Contributions
- ----------------------------------------------
[ ] Withdrawals from a Participant's Employee Account of voluntary Employee
Contributions shall not be permitted.
[ ] Withdrawals of up to _ % (note: not more than 100%) of a Participant's
Employee Account arising from voluntary Employee Contributions may be
permitted.
Withdrawal Restrictions
- -----------------------
If withdrawals of Employee Contributions are permitted they shall be limited to
the following instances (note: 1, 2, 3 and 4 are optional: any one or any
combination of more than one (or none) may be selected):
[x] (1) A withdrawal shall be permitted only if the right of a Participant to
make Employee Contributions to his Employee Account shall be suspended
for (note: select only one)
[x] the next 6 (note: not less than 6) months.
[ ] the later of the next _____ (note: not less than 6) months or the
time the withdrawal from the Employee Account is paid back in full
by the Participant.
[x] (2) A withdrawal shall be permitted in the case of financial hardship, as
determined by the [ ] Employer [ ] Plan Administrator in a uniform and
nondiscriminatory manner.
18
<PAGE>
[ ] (3) A withdrawal shall be permitted only to those Participants (note:
if more than one is selected, the earliest shall apply)
[ ] who have________Years of Service.
[ ] who are eligible for early retirement under this Plan.
[ ] who have terminated employment with the Employer.
[ ] (4) Other (specify, but note: vested benefits may not be forfeited
under this option):
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
ITEM 15 INSURANCE.
- ------------------
Insurance Policies [ ] shall [ ] may [x] shall not be purchased to provide
incidental death benefits on behalf of Participants, pursuant to the
provisions of Section 9.05 of the Plan, in addition to the purchase of any
annuity contract which is required under Item 19 or under the provisions of
the Plan.
ITEM 16 TERMINATION OF EMPLOYMENT (VESTING SCHEDULE).
- -----------------------------------------------------
(a) Vesting Schedule. A Participant's Employer Account (and Matching
Account if pursuant to Item 8 the Matching Account is subject to this
vesting schedule) shall be vested in him according to the following
schedule:
Full Years of [ ] [X] [ ] [ ]
Vesting Service (i) (ii) (iii) (iv)
--------------- --- ---- ----- ----
Less than 1 100% 0% 0% ----
1 100 0 0 ----
2 100 20 0 ----
3 100 40 100 ----
4 100 60 100 ----
5 100 80 100 ----
6 or more 100 100 100 100
--------------------------------
Note: No schedule shall be elected under option (iv) which is not at
---- least as favorable at each duration as either option (ii),
applied uniformly, or option (iii), applied uniformly.
If this election represents a change in the Plan's vesting schedule,
then as to Participants who were Participants on the day prior to the
effective date of this change (elect one)
19
<PAGE>
[ ] such Participant's vesting percentage shall remain the same as it
was under the prior schedule until such time as it would increase
to a higher vesting percentage under the new schedule.
[ ] such Participant's vesting percentage for any Plan Year following
such change shall be determined under whichever of the old schedule
or the new schedule would produce the higher vesting percentage.
Note: If this election represents a change in the Plan's vesting
---- schedule, each Participant with at least 3 Years of Service
with the Employer may elect within a reasonable period after
the adoption of the change to have his nonforfeitable
percentage computed under the Plan without regard to the
change.
If this Adoption Agreement applies to any Plan Year beginning prior to
January 1, 1989, then the vesting schedule for each such Plan Year
shall be the schedule from the prior plan document, which shall be
incorporated herein by reference.
(b) Vesting of Insurance. If the Plan includes or may in the future include
any insurance Policies, check one of the following blocks:
[ ] The vesting schedule elected shall apply to the value of the
Policies as well as to the remainder of the Participant's Employer
Account.
[ ] Vesting schedule ___ shall apply to the value of the Policies,
and vesting schedule ___ shall apply to the remainder of the
Participant's Employer Account.
(c) Timing of Payments. Benefits under the Plan due a former Participant
who is not eligible for normal retirement or early retirement on his
separation from Service shall be paid to such former Participant or
applied for his benefit from his Accounts as follows (note: select only
one):
[x] (1) within 60 days following the close of the Plan Year during
which the former Participant attains what would have been his
Normal-Retirement Age. (If this option is selected select the
suboption below if it is applicable.)
[X] unless such former Participant has a Disability, in which
case his benefit shall be paid within 60 days following the
close of the Plan Year during which such former Participant
incurs a Break in Service, or as soon thereafter as
determinable, if the Participant requests such early
payment.
[ ] (2) within 60 days following the close of the Plan Year during
which the Separated Participant incurs________________(note:
not greater than 5) Break in Service, or as soon thereafter as
determinable, if the Participant requests such early payment.
20
<PAGE>
[ ] (3) Other :________________________________________________________
_______________________________________________________________
(note: not later than 60 days following the close of the Plan
Year during which the Participant attains what would have been
his Normal Retirement Age).
(d) Small Benefits. The Plan Administrator (select one) [ ] shall [ ] shall
not automatically cause the benefit attributable to Employer and
Employee contributions which is not greater than $3,500 to be paid to
the former Participant or Beneficiary in a single sum as provided in
Section 6.08 of the Plan. If "shall" is elected then the benefits of a
Separated Participant who has no vested benefits shall be treated as a
Forfeiture on the last day of the Plan Year in which the Participant
[X] terminates employment with the Employer.
[ ] incurs______(not more than 5) consecutive Breaks in Service.
If the election above represents a change in the timing of Forfeitures
and if the effective date of such change is other than the effective
date of this amendment to the Plan, indicate the effective date of such
change here: ___, l9 _ . If this election does represent a change and
if this Adoption Agreement applies to Plan Years beginning prior to
this change, then the provisions of the prior plan document shall apply
in those prior Plan Years and shall be incorporated by reference.
Note: If Forfeitures are to occur before 5 consecutive Breaks in
---- Service, a restoration of the non-vested account balance may be
required under Section 8.03 of the Basic Plan Document if the
Separated Participant is reemployed.
ITEM 17 VESTING SERVICE EXCLUSIONS.
- -----------------------------------
In determining a Participant's years of Vesting Service, the following
periods of Service shall be excluded in addition to the exclusions set out
in Section 1.73 of the Plan:
[ ] (a) Service prior to the Plan Year during which a Participant attains
age_____(note: not more than 18) years.
[x] (b) Service during any period for which the Employer did not maintain
this Plan or a predecessor plan.
[ ] (c) Service during any period for which the Employee made no
contributions to the Plan, if Employee Contributions were required
to participate in the Plan for such period.
[x] (d) Pre-Break Service excluded under the "Rule of Parity" pursuant to
Section 1.73 dealing with the relationship between periods of
absence and pre-Break Service.
[ ] (e) None of the above exclusions.
21
<PAGE>
ITEM 18 RETIREMENT REQUIREMENTS.
- --------------------------------
(a) The Normal Retirement Age of a Participant shall be (elect one)
[x] age 65 (note: not to exceed 65).
[ ] the later of age____(note: not to exceed 65) or the_________*
(note: not to exceed 5th) anniversary of his participation
commencement date. The participation commencement date is the date
on which the Participant commenced participation in the Plan.
*If this Adoption Agreement constitutes an amendment to an existing
plan, then, for any Plan Year to which this Adoption Agreement
applies beginning prior to the Plan Year following the adoption of
this amendment, the number indicated above shall be replaced with
the following number which was used in the prior plan document
____ (note: not to exceed "10th").
(b) [x] (Note: this selection is optional.) A Participant may retire early
with full vesting on the first day of any month following his
attainment of age
60 (note between 55 and 65 years) if he has then completed
--
10 years of [ ] Vesting Service.
-- [x] Service with the Employer.
(c) A Participant who has reached his Normal Retirement Date
[x] must wait until actual retirement, subject to Section 6.07 (the age
70-1/2 benefit commencement requirement) before he can begin to
receive his retirement benefit pursuant to Article 6 of the Plan.
[ ] may, upon his request, begin to receive his retirement benefit
before his actual retirement.
(d) [X] (Note: this selection is optional.) For purposes of the Plan,
Disability shall not include the following:
[x] a physical or mental condition which results directly or
indirectly from (note: select one or more):
[xl injury intentionally self-inflicted
[x] injury or disease resulting from military service
[x] injury or disease suffered or contracted prior to the last
date of an Employee's commencement of Service
[ ] Other (specify):_______________________________________________
_______________________________________________________________
(e) For purposes of determining the existence of Disability, the Plan
Administrator shall (check one or both, as applicable)
[x] require medical evidence.
[x] allow receipt of Social Security or any insured disability benefits
to be conclusive evidence of Disability.
22
<PAGE>
ITEM 19 FORMS OF BENEFIT PAYMENT.
---------------------------------
(a) The normal form of payment shall be
[x] a single sum.
[ ] a straight life annuity for a Participant who does not have a
Spouse on his Annuity Starting Date and a Qualified Joint and
Survivor Annuity if the Participant does have a Spouse on his
Annuity Starting Date.
(b) (Note: this selection is optional.) The Plan shall offer the following
optional forms of payment pursuant to Section 6.03
[ ] installments
[ ] annuities
[ ] single sum
Others: (describe in detail or reference a specific attachment, such as
"Attachment A", which describes the elected option(s) in
detail)
[ ] ___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
[ ] ___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
[ ] ___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
(Note: Optional forms of benefit payment may not be eliminated.)
(c) If benefits may be paid in the form of an annuity, then the Qualified
Joint and Survivor Annuity shall be an annuity with [ ] 50% [ ] 75% [ ]
100% of the annuity benefit continuing to a Participant's surviving
Spouse at the Participant's death.
(d) If ever a death benefit is to be paid to a Spouse of a Participant in
the form of annuity described in Section 7.02(c)(2) of the Plan (i.e.,
a qualified preretirement survivor annuity), then that Spouse [ ] may
[ ] may not elect an optional form of death benefit payment (such as a
lump sum) provided under the Plan.
Note: If the Employer has previously allowed benefits under the Plan- to
---- be paid in the form of an annuity involving life contingencies, but
would like to eliminate the availability of that form of payment as
to contributions and forfeitures allocated in the future, the
following provision should be completed.
Contributions and Forfeitures (if applicable) allocated to a
Participant's account under the Plan plus any Income allocated to
such amounts on or after____________, 19__, shall not be paid in
the form of an annuity.
23
<PAGE>
ITEM 20 TOP HEAVY PLANS (CODE SECTION 416).
This item automatically applies only in Plan Years in which the Plan is a Top
Heavy Plan, but all options herein must be completed by every Employer in case
the Plan ever becomes Top Heavy.
(a) Single Plan-Minimum Contributions and Allocations. Notwithstanding the
provisions of Item 11, and before any contributions are allocated
thereunder, minimum Employer contributions shall be made and allocated
pursuant to Section 13.03 of the Plan in a Plan Year in which the Plan is
Top Heavy.
(b) Multiple Plans-Minimum Contributions and Allocations. This subsection
shall only apply if you sponsor another qualified retirement plan.
(1) Minimum Contributions and Allocations.
(i) Code Section 415 (e) Buy-Backs. If another retirement plan is a
qualified defined benefit plan, and if for a Plan Year the plans
are Top Heavy (but not Super Top Heavy), then the "Code Section
415(e) buy back" provisions, as defined in Section 13.05 of the
Plan,
[ ] shall be utilized, so that 125%
[ ] shall not be utilized, so that 100%
of the dollar limitations set out in Section 4.07 of the Plan
shall be used in computing the Defined Benefit Fraction and
the Defined Contribution Fraction. If the 125% limit is to be
used, then the required minimum contributions or benefits
shall be provided in [ ] this Plan [ ] the defined
benefit plan.
(ii) Use of Paired Plan Rules. This Plan [ ] is [ ] is not a Paired
Plan subject to the special Paired Plan provisions of Article 14
of the Plan.
Minimum Accruals. If the plan is not a Paired Plan,
[ ] the Plan shall be considered to be subject to the Paired Plan
minimum allocation provisions of Article 14 of the Plan as if
it were a Paired Plan
[ ] the following overriding provisions shall control instead
of the Paired Plan provisions regarding minimum accruals.
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
24
<PAGE>
(Note: Notwithstanding any other provision of the Plan or this Adoption
Agreement, if the Plan provides overriding provisions, or is
subsequently amended to provide overriding provisions, then the Employer
must apply to the appropriate Key District Office for a determination
letter pursuant to Revenue Procedure 89-9 in order to obtain reliance
with respect to the qualification of this Plan or any Paired Plan.)
(iii) No Duplicate Benefits. If this Plan is or becomes a Paired Plan
(or is to be treated as a Paired Plan) with another qualified
defined contribution plan, then any additional required minimum
Employer contributions and allocations shall be provided only
under [ ] this Plan [ ] the other qualified defined contribution
plan.
(2) Present Value. For purposes of establishing Present Value to compute the
Top Heavy Ratio for the Plan as set forth in Section 13.02(j), any
benefit under a qualified defined benefit pension plan maintained by the
Employer shall be discounted only for mortality and interest based on
the following factors, which, if a lump sum benefit is available, should
be the factors used to compute a lump sum benefit:
Mortality Table: [ ] the UP-1984 Mortality Table
[ ] as provided in the qualified defined benefit
pension plan
[ ] Other:
---------------------------------------------
Interest Rate: [ ] the rates which would be used by the Pension
Benefit Guaranty Corporation for a trusteed
single-employer plan to value a benefit upon
termination of an insufficient trusteed
single-employer plan
[ ] as provided in the qualified defined benefit
pension plan
[ ] Other:
---------------------------------------------
ITEM 21 MULTIPLE PLANS-LIMITATION ON TOTAL BENEFITS (CODE SECTION 415).
The Employer must complete (a) and (b) below. If the Employer maintains or ever
maintained another qualified plan in which any Participant in this Plan is (or
was) a Participant or could possibly become a Participant, the Employer must
indicate how it will deal with benefits under the plans that exceed the limits
under Code Section 415. If the Employer maintains a welfare benefit fund, as
defined in Section 419(e) of the Code, or an individual medical account, as
defined in Section 415(1)(2) of the Code, under which amounts are treated as
Annual Additions with respect to any Participant in this Plan, then it must also
indicate how it will deal with benefits which under such fund or account in
combination with benefits under this Plan exceed the limits under Code Section
415.
25
<PAGE>
(a) If the Participant is covered under another qualified defined
contribution plan maintained by the Employer, other than a master or
prototype plan (note: select only one option):
[x] This situation is not applicable.
[ ] The provisions of subsection 4.07(b)(1) through subsection
4.07(b)(6) of the Plan shall apply, as if the other plan was a
master or prototype plan.
[ ] The amount of Annual Additions allocated to any Participant's
Accounts under this Plan shall be limited to the Maximum
Permissible Amount, and Excess Amounts will be properly reduced,
as follows:
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
(b) If the Participant is or ever has been a Participant in a defined
benefit plan maintained by the Employer (note: select only one option):
[x] This situation is not applicable.
[ ] In any Limitation Year, the Annual Additions credited under this
Plan to the Participant may not cause the sum of the Defined
Benefit Fraction and Defined Contribution Fraction to exceed 1.0.
If the Employer's contribution that would otherwise be made on the
Participant's behalf during the Limitation Year would cause the
1.0 limitation to be exceeded, the rate of contribution under this
Plan will be reduced so that the sum of the fractions equals 1.0.
If the 1.0 limitation is exceeded because of an Excess Amount,
such Excess Amount will be reduced in accordance with subsection
4.07(a)(4) of the Plan.
[ ] In any Limitation Year, the additional benefit accrued under the
defined benefit plan to the Participant may not cause the sum of
the Defined Benefit Fraction and Defined Contribution Fraction to
exceed 1.0. If the additional benefit that the Participant would
normally accrue would cause the 1.0 limitation to be exceeded, the
rate of benefit accrued under the defined benefit plan will be
reduced so that the sum of the fractions equals 1.0.
[ ] The amount of Annual Additions allocated to any Participant's
Accounts under this Plan shall be limited to the Maximum
Permissible Amount, and Excess Amounts will be properly reduced,
as follows:
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
------------------------------------------------------------------
26
<PAGE>
ITEM 22 SERVICE WITH PREDECESSOR EMPLOYER.
Employment with the following predecessor employer(s) (and such other
predecessor employers as the Employer shall subsequently designate in
writing) shall be considered Service with the Employer for all purposes of
the Plan (note: if the Employer is maintaining a tax-qualified plan of a
predecessor employer, that predecessor employer must be listed; place an
asterisk (*) after the name of any such predecessor employer):
[x] There are no such predecessor employers.
[ ]
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
ITEM 23 CONTROLLED GROUPS.
The following employers are members of a Controlled Group:
[ ] (a) There are no such employers.
[X] (b) Equitable Securities Corporation
--------------------------------------------------------------------
Equitable Trust Company
--------------------------------------------------------------------
--------------------------------------------------------------------
Note: All members of the Controlled Group must adopt the Plan and shall be
considered a single Employer for purposes of allocating Employer
contributions and Forfeitures.
ITEM 24 OTHER ADOPTING EMPLOYERS.
The following adopting Employers are affiliates of the Employer, other than
members of the Controlled Group, which, pursuant to Section 4.08 of the
Plan, have adopted the Plan and for which a single Trust Fund may be used
for the investment of the Trust Fund:
----------------------------------------------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
27
<PAGE>
ITEM 25 COMPENSATION OF TRUSTEE OR CUSTODIAN.
The Employer agrees to pay and/or reimburse the Trustee and the Custodian,
if any, for expenses on the basis set out in the Plan, provided the Trustee
is not a full-time Employee of the Employer, and to pay the Trustee and the
Custodian an annual fee according to its schedule of fees. The Trustee's and
Custodian's annual compensation shall be charged to the Trust Fund, unless
paid or reimbursed by the Employer.
ITEM 26 APPOINTMENT OF TRUSTEE OR CUSTODIAN.
The Trustee or Custodian, by execution of this Adoption Agreement, accepts
its appointment as Trustee or Custodian, respectively, under the aforesaid
Plan.
ITEM 27 COORDINATION OF PLAN ADMINISTRATOR AND TRUSTEE OR CUSTODIAN.
At the commencement of this Plan and at the end of each Plan Year
thereafter, the Plan Administrator appointed by the Employer shall deliver
to the Trustee or Custodian such information as the Trustee or Custodian may
require for the proper installation and administration of the Plan.
ITEM 28 AMENDMENT BY EMPLOYER.
The elective features of this Adoption Agreement may be amended by the
Employer as provided in Article 11 of the Plan, but all authority to amend
the portions of the Plan which constitute a prototype plan approved by the
Internal Revenue Service under Revenue Procedure 89-9 is specifically
delegated irrevocably to the Sponsor, subject to the provisions of Article
11 of the Plan.
28
<PAGE>
IN WITNESS WHEREOF, the following parties hereto have caused this
Adoption Agreement to be executed this the 31st day of December, 1991.
---- -------- --
Equitable Securities Corporation Equitable Trust Company
- -------------------------------- --------------------------------------
EMPLOYER TRUSTEE
By: William H. Cammack By: M. Kirk Scaby, Jr.
----------------------------- ----------------------------------
Title: Chief Exex. Officer Title: EVP
-------------------------- -------------------------------
- -------------------------------- --------------------------------------
ADOPTING EMPLOYER TRUSTEE
By: By:
----------------------------- ----------------------------------
Title: Title:
-------------------------- -------------------------------
- -------------------------------- --------------------------------------
ADOPTING EMPLOYER TRUSTEE
By: By:
----------------------------- ----------------------------------
Title: Title:
-------------------------- -------------------------------
--------------------------------------
CUSTODIAN
(only if Sponsor named custodian)
By:
----------------------------------
Title:
-------------------------------
NOTICE TO ADOPTING EMPLOYER(S)
An Employer who ever maintained or who later adopts any plan, other than a
Paired Plan in which override options are not selected, in addition to this Plan
(including, after December 31, 1985, a welfare benefit fund, as defined in
Section 419(e) of the Code, which provides post-retirement medical benefits
allocated to separate accounts for Key Employees or an individual medical
account as defined in Section 415(1)(2) of the Code) may not rely on the opinion
letter issued by the National Office of the Internal Revenue Service as evidence
that this Plan is qualified under Section 401 of the Code. If the Employer who
adopts or maintains multiple plans wishes to obtain reliance with respect to
Plan qualification, the Employer must apply to the appropriate Key District
Office of the Internal Revenue Service for a determination letter pursuant to
Revenue Procedure 89-9.
This Adoption Agreement may be used only in conjunction with Equitable
Securities Corporation Defined Contribution Basic Plan Document #01.
29
<PAGE>
EQUITABLE SECURITIES CORPORATION
PROTOTYPE DEFINED CONTRIBUTION PLAN AND TRUST
ADOPTION AGREEMENT
PROFIT SHARING PLAN
ADOPTED BY
Equitable Securities Corporation
--------------------------------
(Name of Employer)
AS THE
Equitable Securities Corporation
Profit Sharing Plan
--------------------------------
(Name of Plan)
Adoption Agreement #006 (Standardized)
Defined Contribution Basic Plan Document #01
<PAGE>
THIS ADOPTION AGREEMENT, and the provisions of the Equitable Securities
Corporation Prototype Defined Contribution Plan and Trust, are hereby adopted by
the Employer named hereinafter in order to establish a qualified plan and trust
for the exclusive benefit of participating Employees of the Employer and their
beneficiaries.
Plan Name: Equitable Securities Corporation Profit Sharing Plan
Item 1 Plan Information.
(a) The Employer hereby
[ ] establishes the above-named Plan
[X] amends, restates and continues the above-named Plan, which was
originally effective on 7-1-75,
[ ] amends, restates and continues as the above-named Plan the plan
previously named the _______________, which was originally
effective on _______________,
by adopting the EQUITABLE SECURITIES CORPORATION PROTOTYPE DEFINED
CONTRIBUTION PLAN AND TRUST as established on 9-18-85.
(b) The Effective Date of this Plan adoption or amendment shall be
January 1, 1989.
(c) The Plan Year shall end on December 31.
(d) The Limitation Year shall be [X] the Plan Year.
[ ] the 12 consecutive month period ending
on ________________________________.
Item 2 Employer Information.
The Employer furnishes the following information:
Name: Equitable Securities Corporation
Business Address: First American Center,
25th Floor, Nashville, Tennessee 37238
Nature and Principal Location(s) of Business: Investment Banker;
Address same as above
Date of Incorporation or Commencement of Business: 7-1-72
Employer's I.R.S. Employer Identification Number: 62-0871146
Employer's Fiscal Year Ends: June 30
Employer contributes to the following additional Pension or Profit
Sharing Plans: N/A
1
<PAGE>
Type of Entity: [X] Corporation [ ] Subchapter S Corporation
[ ] Sole Proprietorship [ ] Partnership [ ] Tax Exempt Organization
[ ] Professional Corporation [ ] Professional Association
Item 3 Plan Administration.
The Custodian shall be Equitable Securities Corporation and the Trustee
shall be
(specify) Name: William H. Cammack, Sr., and William P. Johnston,
Co-Trustees
Address: 25th Floor, First American Center, Nashville, Tennessee 37238
Telephone Number: 615/244-9420
The Plan Administrator, whose duties are set forth in Article 9 of the Plan,
and the agent for service of process shall be
[ ] The Employer, Attn: Larry Smith
Telephone Number: 615/244-9420
[ ] Other (specify):
Telephone Number:
Address:
Item 4 Employee Classes Excluded.
The following class(es) of persons employed by the Employer shall not be
eligible to participate in the Plan:
[X] (a) No exclusions.
[ ] (b) Hourly paid
[ ] (c) Salaried
[ ] (d) Piece work paid
[ ] (e) Commission paid
[ ] (f) Employees covered by a collective bargaining agreement between the
Employer and representatives of such Employees in which retirement
benefits were the subject of good faith bargaining, except as
otherwise provided in the collective bargaining agreement. For this
purpose, the term "representatives of such Employees" shall not
include any organization more than l/2 of whose members are
Employees who are owners, officers or executives of the Employer.
[ ] (g) Others (specify):
2
<PAGE>
Item 5 Eligibility and Participation.
Employees shall become eligible to participate in the Plan according to the
following schedule (note: mark only one selection, and further note: that if a
box is marked, but no age or service requirement in the selection is filled in,
or a "0" is filled in, or a "N/A" is filled in, or "None" is filled in, then no
age or service requirement (as the case may be) shall be required in that
selection):
[X] (a) Immediately upon hire or, if later, upon attainment of age 21 (note:
not more than 21*).
[ ] (b) On the Anniversary Date coincident with or immediately following the
date the Employee's Service begins.
[ ] (c) On the Anniversary Date coincident with or immediately following
the later of:
(i) attainment of age ______ (note: not more than 20 1/2*)
years, and
(ii) the date ______ (note: not more than 30) months after the day
the Employee was first employed by the Employer.
[ ] (d) On the Anniversary Date or the date 6 months after the Anniversary
Date, whichever comes first, coincident with or immediately following
completion of ______ (note: not more than 3) Year(s) of Service and
attainment of age ______ (note: not more than 21*) years.
[ ] (e) On the Anniversary Date in the Plan Year during which the Employee
completes ______ (note: not more than 3) Years of Service and attains
age ______ (note: not more than 21*) years.
[ ] (f) On the Anniversary Date nearest the date on which the Employee has
both completed ______ (note: not more than 3) Years of Service and
attained age ______ (note: not more than 21*) years.
[ ] (g) On the first day of the calendar month coincident with or
immediately following the date on which the Employee has both completed
______ (note: not more than 3) Years of Service and attained age ______
(note): not more than 21*) years.
*If this Adoption Agreement applies to any Plan Year beginning prior to
January 1, 1985, then the age requirement for each such Plan Year shall be
______(note: can be up to 4 years greater than the age requirement set
forth above).
Each Employee who has satisfied the above age and Service requirements as of the
Effective Date of this adoption shall become a Participant on the Effective
Date. If this is a continuation of a predecessor plan, no Employee who has been
a Participant under the predecessor plan and who is otherwise eligible to
participate in this Plan shall be excluded from participation because of failure
to satisfy the above age and Service requirements.
Notes: (1) All officers, shareholders, and highly compensated Employees covered
by the Plan must meet, as of the Effective Date, the eligibility
requirements established above for future Employees.
3
<PAGE>
(2) If more than 1 Year (6 months if option (c) is elected) of Service is
required for participation in the Plan, an option must be elected in
Item 10 which will provide full and immediate vesting on the
Employee's entry into participation.
Item 6 Hours of Service.
Hours of Service shall be determined for all purposes under the Plan on the
basis selected as follows. (Note: Only one method may be selected for any class
of Employees; if different methods are selected for different classes of
Employees, then the combination of methods selected cannot result in
discrimination. If only one method is selected, it shall apply to all classes
of Employees covered by the Plan.)
[X] (a) On the basis of actual hours for which an Employee is paid or entitled
to payment.
[ ] (b) On the basis of days worked: an Employee shall be credited with 10 Hours
of Service if under Section 1.23 of the Plan such Employee would be
credited with at least 1 Hour of Service during the day.
[ ] (c) On the basis of weeks worked: an Employee shall be credited with 45
Hours of Service if under Section 1.23 of the Plan such Employee would
be credited with at least 1 Hour of Service during the week.
[ ] (d) On the basis of semi-monthly payroll periods: an Employee shall be
credited with 95 Hours of Service if under Section 1.23 of the Plan
such Employee would be credited with at least 1 Hour of Service during
the semi-monthly payroll period.
[ ] (e) On the basis of months worked: an Employee shall be credited with 190
Hours of Service if under Section 1.23 of the Plan such Employee would
be credited with at least 1 Hour of Service during the month.
[ ] Option ____ shall apply to hourly paid Employees covered by the
Plan.
[ ] Option ____ shall apply to salaried Employees covered by the Plan.
[ ] Option ____ shall apply to (specify) _________________ covered
by the Plan.
Item 7 Employer Contributions.
The Employer contribution for each Plan Year, pursuant to Section 3.01, shall be
out of Net Profits as follows:
[X] such amount as the Employer, in its sole discretion, shall elect to
contribute for the Plan Year.
[ ] for each Plan Year in which the current Net Profits of the Employer exceed
$_______, out of the current Net Profits for that year, an amount equal to
____% (note: not to exceed 15%) of the aggregate Compensation of the
Participants through the last day of such year (but for this calculation
Compensation shall not be greater than $________); provided, however, that
if the excess of current Net
4
<PAGE>
If current Net Profit is:
$____________ to $____________, ____________%
$____________ to $____________, ____________%
$____________ to $____________, ____________%
[ ] Other (describe, but note: must be in accordance with generally accepted
accounting principles):____________________________________________________
___________________________________________________________________________
[ ] (Note: the following selections are optional.) For purposes of the Plan, Net
Profits shall be determined as including:
[ ] dividends paid
[ ] taxes based upon income
[ ] (other, but note: must be in accordance with generally accepted
accounting principles):_________________________________________________
________________________________________________________________________
but excluding the following:
[ ] nonrecurring income or losses not arising from the Employer's usual
operations
[ ] gains or losses from the sale or exchange of capital assets, fixed
assets and securities
[ ] proceeds from life insurance carried by the Employer on the lives of its
officers and Employees, whether now or hereafter in force
[ ] refunds of taxes
[ ] (other, but note: must be in accordance with generally accepted
accounting principles):_________________________________________________
________________________________________________________________________
________________________________________________________________________
Forfeitures. Forfeitures shall be (note: select only one):
[X] allocated in the same manner as Employer contributions.*
[ ] used to reduce Employer contributions for the Plan Year.
If a Participant receives a distribution from his Employer Account upon
termination of Service and is reemployed by the Employer before he incurs 5
consecutive Breaks in Service (or in Plan Years beginning before January 1,
1985, before he incurs a Break in Service), then he [] will be required [] will
not be required to repay the entire amount of the distribution in order to have
his Forfeiture reestablished under the Plan.
*allocated in same manner as Employer contributions within the account from
which it arose.
5
<PAGE>
Item 8 Participant Contributions.
Subject to the provisions of Section 3.03 of the Plan,
(a) Rollover contributions from individual retirement accounts and other
qualified plans
[ ] shall not be allowed.
[X] shall be allowed.*
(b) Contributions by Participants shall not be required for participation in the
Plan.
(c) Voluntary non-deductible contributions by Participants
[X] shall not be allowed.
[ ] shall be allowed.
(d) Voluntary deductible contributions by Participants
[X] shall not be allowed, except pursuant to CODA Adoption Agreement.
[ ] shall be allowed.
(e) If voluntary contributions are allowed under 8(c) and/or 8(d), complete the
following items (i) and (ii). Not applicable
(i) Such contributions
[ ] shall be made regularly by payroll deduction, and shall share in
investment Income for the Plan Year for which made.
[ ] shall be made as determined by the Participant, and shall not share
in investment Income for the Plan Year for which made.
(ii) Such contributions shall be
[ ] combined with other Plan assets for investment purposes.
[ ] invested separately from other Plan assets in an account consisting
of certificates of deposit, money market certificates, collective
investment trusts, other short-term debt security instruments or any
other investments acceptable to the Trustee.
*only if such IRA account is a "conduit" or rollover IRA from another qualified
plan.
6
<PAGE>
Item 9 Retirement Requirement.
(a) The Normal Retirement Age of a Participant shall be
[X] age 65 (note: not later than the earlier of age 65 or any
other normal retirement age set by the Employer).
[ ] the later of age_____ (note: not later than the earlier of age 65 or
any other normal retirement age set by the Employer) or the age on
which the_____ (note: not to exceed 10th) anniversary of his
participation commencement date occurs. The participation
commencement date is the first day of the first Plan Year in which
the Participant commenced participation in the Plan.
(b) [ ] (Note: this selection is optional.) A Participant may retire early
with full vesting on the first day of any month following his
attainment of age
_____ (note: between 55 and 65 years) if he has then completed _____
years of [ ] Vesting Service.
[ ] Service with the Employer.
(c) [ ] (Note: this selection is optional.) For purposes of the Plan,
Disability shall not include the following:
[ ] a physical or mental condition which results directly or
indirectly from
[ ] injury intentionally self-inflicted,
[ ] injury or disease resulting from military service or
[ ] injury or disease suffered or contracted prior to the last date
of an Employee's commencement of Service.
[ ] Other (specify):
(d) Benefits under Article 8 of the Plan due a separated Participant who is not
eligible for normal retirement or early retirement on his separation from
Service shall be paid to the Separated Participant or applied for his
benefit from his Personal Account(s) as follows (note: select only one):
[ ] within 60 days following the close of the Plan Year during which the
Separated Participant incurs a Break in Service, or as soon thereafter
as determinable.
[ ] within 60 days following the close of the Plan Year during which the
Separated Participant attains what would have been his Normal Retirement
Age.
[X] in a manner uniformly and nondiscriminatorily established by the Plan
Administrator and not otherwise in contravention of Section 8.06 of the
Plan. Cash-outs of $3,500 or less will be distributed at the end of the
plan year. Amounts in excess of $3,500 will be distributed at the option
of the participant.
Item 10 Vesting Schedule.
A Participant's Employer Account shall be vested in him according to the
following schedule:
7
<PAGE>
Full Years of [ ] [ ] [ ] [ ]
Vesting Service (a) (b} (c) (d)
--------------- --- --- --- ---
Less than 1 100% 0% 0% %
1 100 0 0 ___
2 100 20 0 ___
3 100 40 100 ___
4 100 60 100 ___
5 100 80 100 ___
6 or more 100 100 100 100
Notes: (1) No schedule shall be elected under option (d) which is not at least
as favorable at each duration as either option (b), applied
uniformly, or option (c), applied uniformly.
(2) If this election represents a change in the Plan's vesting schedule,
each Participant with at least 5 Years of Service with the Employer
may elect within a reasonable period after the adoption of the
change to have his nonforfeitable percentage computed under the Plan
without regard to the change.
If the Plan includes or may in the future include any insurance Policies, check
one of the following blocks: Not Applicable
[ ] The vesting schedule elected shall apply to the value of the Policies
as well as to the remainder of the Participant's Employer Account.
[ ] Vesting schedule_____ shall apply to the value of the Policies, and
vesting schedule_____ shall apply to the remainder of the Participant's
Employer Account.
Item 11 Vesting Service Exclusions.
In determining a Participant's years of Vesting Service, the following periods
of Service shall be excluded in addition to the exclusions set out in Section
1.57 of the Plan:
[ ] (a) Service prior to the Plan Year during which a Participant
attains age_____ (note: not more than 18*) years.
[X] (b) Service during any period for which the Employer did not maintain
this Plan or a predecessor plan.
[ ] (c) Service during any period for which the Employee made no
contributions to the Plan, if Participant contributions were required to
participate in the Plan for such period.
[X] (d) Pre-Break Service excluded under the "Rule of Parity" dealing with
the relationship between absence and pre-Break Service.
[ ] (e) None of the above exclusions.
*If this Adoption Agreement applies to any Plan Year beginning prior to January
l, 1985, then the age requirement for each such Plan Year shall be_____
(note: can be up to 4 years greater than the age requirement set forth above.)
8
<PAGE>
Item 12 Compensation.
For purposes of the allocation of Employer contributions and Forfeitures,
Compensation (as defined in Section 1.10 of the Plan) shall be based on
compensation [X] actually paid or [] accrued, and shall be total Compensation.
up to $200,000
For purposes of the allocation, Compensation of a Participant shall include
[X] his Compensation for the entire Plan Year.
[ ] only his Compensation for the portion of the Plan Year during which he
was a Participant.
[ ] only his Compensation for the portion of the Plan Year commencing with
the first day of the month during which he became a Participant.
Note: If "accrued" Compensation is elected above, the Employer must adopt a
written resolution each Plan Year specifying the amount of each
Participant's Compensation for such year.
Item 13 Allocation of Contributions.
This Plan may be either non-integrated or integrated with Social Security.
(Note: Choose one method only.)
[ ] (a) NON-INTEGRATED
Employer contributions (and Forfeitures, if to be allocated in the same
manner as Employer contributions pursuant to Item 7) shall be allocated,
pursuant to the provisions of Sections 4.01 and 4.02 of the Plan, to each
Participant's Employer Account in the proportion that such Participant's
Compensation for the Plan Year bears to the total Compensation for the Plan
Year of all Participants entitled to share in the allocation.
[x] (b) INTEGRATED
(Note: if this Plan is a Paired Plan, integration with Social Security is
permitted in one Paired Plan only.)
Allocation of Employer contributions (and Forfeitures, if to be allocated in
the same manner as Employer contributions pursuant to Item 7) under Sections
4.01 and 4.02 of the Plan shall be as follows:
First, to each Participant's Employer Account in an amount equal to MAX %
(not more than the "Max", as defined below) of the Participant's
Compensation in excess of (note: choose one option only):
[ ] ___% (not to exceed 100%) of the Taxable Wage Base in effect at the
beginning of the Plan Year.
[ ] $______ (not to exceed the Taxable Wage Base in effect at the Effective
Date of this adoption; or if in excess of such Taxable Wage Base, the
"Max" limitation shall be reduced by a fraction, the numerator of which
is such Taxable Wage Base and the denominator of which is the dollar
amount selected).
9
<PAGE>
The term "Max" shall mean the employer's OASDI tax rate as of the beginning
of the Plan Year. Unless modified by congress, the "Max" shall be as
follows:
1984 - 1987 : 5.70%
1988 - 1989 : 6.06%
after 1989 : 6.20%
Second, the remaining balance, if any, of the Employer contribution (and
Forfeitures, if to be allocated in the same manner as Employer contributions
pursuant to Item 7) shall be allocated to each Participant's Employer
Account in the proportion that such Participant's Compensation bears to the
total Compensation of all Participants.
If the total amount of Employer contributions (and Forfeitures, if to be
allocated in the same manner as Employer contributions pursuant to Item 7)
is insufficient to complete the first phase of the allocation described
above, such total amount shall be allocated in proportion to the amount of
each Participant's Compensation in excess of the integration level elected
above.
If an Employee's entry date for participation in the Plan is not the
Anniversary Date, then the integration level elected above (i.e., the
integration break-point) [X] shall [] shall not be prorated in the Plan Year
in which the Participant enters or reenters the Plan in the ratio that the
length of the Participant's participation in the Plan that Plan Year bears
to the length of the entire Plan Year.
Item 14 Top Heavy Plans (Code Section 416).
This item automatically applies only in Plan Years in which the Plan is a Top
Heavy Plan, but all options herein must be completed by every Employer in case
the Plan ever becomes Top Heavy.
(a) Single Plan-Minimum Contributions and Allocations. Notwithstanding the
provisions of Item 13, and before any contributions are allocated
thereunder, minimum Employer contributions shall be made and allocated
pursuant to Section 13.03 of the Plan in a Plan Year in which the Plan
is Top Heavy
(b) Multiple Plans-Minimum Contributions and Allocations. This subsection
shall only apply if you sponsor, have sponsored or shall ever sponsor
another qualified retirement plan. Not applicable
(1) Minimum Contributions and Allocations.
(i) Code Section 415 (e) Buy-Backs. If another retirement plan is a
qualified defined benefit plan, and if for a Plan Year the plans
are Top Heavy (but not Super Top Heavy), then the "Code Section
415(e) buy back" provisions, as defined in Section 13.05 of the
Plan,
[ ] shall be utilized, so that l25%
[ ] shall not be utilized, so that 100%
of the dollar limitations set out in Section 4.07 of the Plan
shall be used in computing the Defined Benefit Fraction and the
Defined Contribution Fraction.
10
<PAGE>
(ii) Use of Paired Plan Rules. This Plan [ ] is [ ] is not a Paired
Plan subject to the special Paired Plan provisions of Article
14 of the Plan.
Minimum Accruals. If the Plan is not a Paired Plan,
[ ] the Plan shall be considered to be subject to the Paired
Plan minimum allocation provisions of Article 14 of the
Plan as if it were a Paired Plan
[ ] the following overriding provisions shall control instead
of the Paired Plan provisions regarding minimum accruals.
---------------------------------------------------------------
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(Note: Notwithstanding any other provision of the Plan or this
Adoption Agreement, if the Plan provides overriding provisions, or
is subsequently amended to provide overriding provisions, then the
Employer must apply to the appropriate Key District Office for a
determination letter pursuant to Revenue Procedure 84-23 in order to
obtain reliance with respect to the qualification of this Plan or
any Paired Plan.)
(iii) No Duplicate Benefits. If this Plan is or becomes a Paired
Plan (or is to be treated as a Paired Plan) with another
qualified defined contribution plan, then the required minimum
Employer contributions and allocations shall be provided only
under [] this Plan [] the other qualified defined contribution
plan.
(2) Present Value. For purposes of establishing Present Value to compute
the Top Heavy Ratio for the Plan as set forth in Section 13.02(j),
any benefit under a qualified defined benefit pension plan
maintained by the Employer shall be discounted only for mortality
and interest based on the following factors, which, if a lump sum
benefit is available, should be the factors used to compute a lump
sum benefit:
Mortality Table: [ ] the UP-1984 Mortality Table
[ ] as provided in the qualified defined
benefit pension plan
[ ] Other:________________________
Interest Rate: [ ] the current rate specified for the
purchase of immediate annuities by the
Pension Benefit Guaranty Corporation
[ ] as provided in the qualified
defined benefit pension plan
[ ] Other:_________________________
11
<PAGE>
Item 15 Allocation in Year of Termination.
In performing each annual allocation of Employer contributions, former
Participants who complete 1000 Hours of Service during a Plan Year but who are
no longer employed on the allocation date shall be:
[x] included.
[ ] excluded, except that any former Participant whose Service terminated
due to death, disability, or retirement shall be included.
[ ] excluded.
Note: Exclusion of such persons may under certain circumstances endanger the
continued qualification of the Plan by the Internal Revenue Service.
Item 16 Loans.
The Plan Administrator [ ] shall [X] shall not permit loans to Participants
pursuant to the provisions of Section 5.02 of the Plan.
Item 17 Withdrawals.
Withdrawals - Employer contributions
[X] Withdrawals from a Participant's Employer Account shall not be
permitted.
Withdrawals of up to ___% (note: not more than 100%) of a Participant's
vested interest in his Employer Account may be permitted.
Withdrawals of Employer contributions shall be limited to the following
instances (note: 1 and 2 are optional; any combination (or neither) may
be selected).
[ ] (1) A withdrawal shall be permitted only in the case of financial
hardship, as determined by the Plan Administrator in a uniform
and nondiscriminatory manner.
[ ] (2) A withdrawal shall be permitted only to those Participants
(note: if more than one is selected, the earliest shall apply)
[ ] who have ___ Years of Service.
[ ] who are eligible for early retirement under this Plan.
[ ] who have terminated employment with the Employer.
Withdrawals - Voluntary Non-deductible Employee contributions
(Note: this section of the Adoption Agreement should be filled out only if
voluntary non-deductible Employee contributions are a feature of this Plan.)
[ ] Withdrawals from a Participant's Personal Account of voluntary non-
deductible Employee contributions shall not be permitted.
[ ] Withdrawals of up to ____% (note: not more than 100%) of voluntary
non-deductible Employee contributions from a Participant's Personal Account
may be permitted.
12
<PAGE>
Withdrawal Restrictions
Not Applicable
[ ] A withdrawal of either Employer or Employee contributions may not
include the Income in the account.
Withdrawals of Employee contributions shall be limited to the following
instances (note: 1, 2, 3 and 4 are optional: any combination (or neither) may be
selected):
[ ] (1) A withdrawal shall be permitted only if the right of a Participant
to make voluntary contributions to his Personal Account shall be
suspended for (note: select only one)
[ ] the next __________ (note: not less than 6) months.
[ ] the later of the next __________ (note: not less than 6) months or
the time the withdrawal from the Personal Account is paid back in full
by the Participant.
[ ] (2) A withdrawal shall be permitted in the case of financial hardship, as
determined by the [ ] Employer [ ] Plan Administrator in a uniform and
nondiscriminatory manner.
[ ] (3) A withdrawal shall be permitted only to those Participants (note: if
more than one is selected, the earliest shall apply)
[ ] who have ___ Years of Service.
[ ] who are eligible for early retirement under this Plan.
[ ] who have terminated employment with the Employer.
[ ] (4) Other (specify, but note: vested benefits may not be forfeited under
this option):___________________________________________________________
________________________________________________________________________
________________________________________________________________________
Item 18 Insurance
Insurance Policies [ ] shall [ ] may [X] shall not be purchased to provide
incidental death benefits on behalf of Participants, pursuant to the provisions
of Section 9.05 of the Plan, in addition to the purchase of any annuity contract
which is required under Item 19 or under the provisions of the Plan.
Item 19 Distribution Involving Life Contingencies.
Benefits under the Plan [X] may [ ] may not be paid in the form of an annuity
involving life contingencies. (Note: Optional forms of benefit payment may not
be eliminated after July 30, 1984.)
If benefits may be paid in the form of an annuity, then the Qualified Joint and
Survivor Annuity shall be an annuity with [X] 50% [] 75% [] 100% of the annuity
benefit continuing to a Participant's surviving Spouse at the Participant's
death.
If ever a death benefit is to be paid to a Spouse of a Participant in the form
of annuity described in Section 7.02(c)(2) of the Plan (i.e., a qualified
preretirement survivor annuity), then that Spouse [X] may [ ] may not elect an
optional form of death benefit payment (such as a lump sum) provided under the
Plan. (Note: If a Spouse may elect an optional form of death benefit payment,
then a special notice concerning the qualified preretirement survivor annuity
must be given to the Participant between the ages of 32 and 35 pursuant to
Section 7.02(c)(5) of the Plan.)
13
<PAGE>
Item 20 Investments. (Note: Choose any one option or permitted combination of
options from (a), (b) or (c).)
(a) Investment decisions shall be controlled by (note: choose only one option
from (a))
[] the Trustee in its sole discretion.
[] an Investment Manager appointed by the Employer pursuant to the provisions of
Section 10.09 of the Plan.
[x] the Employer, with respect to the Employer Accounts pursuant to the
provisions of Section 10.10 of the Plan.
[x] each Participant, with respect to his Personal Account(s), if any, pursuant
to the provisions of Section 10.11 of the Plan.
[] (b) Although the Trustee, the Employer, or an Investment Manager has been
designated above to control investments, the Plan Administrator may elect to
permit each Participant to have the right, at his discretion, to control the
investment of his Personal Account(s), if any, and the vested amount of his
Employer Account, if permitted by the Committee, pursuant to the provisions of
Section 10.11 of the Plan. (Note: this option should not be chosen if the last
option in (a) was chosen.)
[] (c) The Trustee may delegate its duty physically to hold and safeguard the
assets of the Plan to the Sponsor as custodian.
[] (d) Investment by the Plan in Qualifying Employer Securities shall be
permitted to a maximum of l00% (note: not more than 100%) of that portion of the
Trust Fund attributable to Employer contributions and Forfeitures [] the value
of the entire Trust Fund (note: election of this second option may require the
registration of such securities with the Securities and Exchange Commission).
With respect to the voting of such Qualifying Employer Securities, the following
entity shall vote such shares (note: select only one):
[x] the Trustee.
[] the Participant to whose Account the shares have been allocated.
[] the Plan Administrator or, if appointed, the Committee.
Item 21 Multiple Plans-Limitation on Total Benefits (Code Section 415).
If you maintain or ever maintained another qualified plan in which any
Participant in this Plan is (or was) a Participant or could possibly become a
Participant, you must complete this section.
(a) [] If the Participant is covered under another qualified defined
contribution plan maintained by the Employer, other than a Master or Prototype
Plan (note: select only one option):
14
<PAGE>
[] The provisions of subsection 4.07(b)(1) through subsection 4.07(b)(6) of the
Plan shall apply, as if the other plan was a Master or Prototype Plan.
[] The amount of Annual Additions allocated to any Participant's Accounts under
this Plan shall be limited to the Maximum Permissible Amount, and Excess Amounts
will be properly reduced, as follows:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[x] This situation is not applicable
(b) [] If the Participant is or ever has been a Participant in a defined benefit
plan maintained by the Employer (note: select only one option):
[] In any Limitation Year, the Annual Additions credited under this Plan to the
Participant may not cause the sum of the Defined Benefit Fraction and Defined
Contribution Fraction to exceed 1.0. If the Employer's contribution that would
otherwise be made on the Participant's behalf during the Limitation Year would
cause the 1.0 limitation to be exceeded, the rate of contribution under this
Plan will be reduced so that the sum of the fractions equals 1.0. If the 1.0
limitation is exceeded because of an Excess Amount, such Excess Amount will be
reduced in accordance with subsection 4.07(a)(4) of the Plan.
[] The amount of Annual Additions allocated to any Participant's Accounts under
this Plan shall be limited to the Maximum Permissible Amount, and Excess Amounts
will be properly reduced, as follows:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[x] This situation is not applicable.
Item 22 Service with Predecessor Employer.
Employment with the following predecessor employer(s) shall be considered
Service with the Employer for all purposes of the Plan (note: If the Employer is
maintaining a tax-qualified plan of a predecessor employer, that predecessor
employer must be listed; place an asterisk (*) after the name of any such
predecessor employer.):
[x] There are no such predecessor employers.
[ ] ----------------------------------------------------------------------
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15
<PAGE>
Item 23 Controlled Groups.
The following employers are members of a Controlled Group:
[x] (a) There are no such employers.
[] (b) ----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Item 24 Other Adopting Employers.
The following adopting Employers are affiliates of the Employer which, pursuant
to Section 4.08 of the Plan, have adopted the Plan and for which a single Trust
Fund may be used for the investment of the Trust Fund:
Not Applicable
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Each such adopting Employer which is a member of a Controlled Group [] shall []
shall not be considered to be a separate Employer for purposes of allocating
Employer contributions and Forfeitures.
Item 25 Compensation of Trustee or Custodian.
The Employer agrees to pay and/or reimburse the Trustee and the Custodian, if
any, for expenses on the basis set out in the Plan, provided the Trustee is not
a full-time Employee of the Employer, and to pay the Trustee and the Custodian,
an annual fee according to its schedule of fees. Trustee's and Custodian's
annual compensation shall be charged to the Trust Fund, unless paid or
reimbursed by the Employer.
Item 26 Appointment of Trustee or Custodian.
The Trustee or Custodian, by execution of this Adoption Agreement, accepts its
appointment as Trustee or Custodian, under the aforesaid Plan.
Item 27 Coordination of Plan Administrator and Trustee.
At the commencement of this Plan and at the end of each Plan Year thereafter,
the Plan Administrator appointed by the Employer shall deliver to the Trustee or
Custodian such information as the Trustee or Custodian may require for the
proper installation and administration of the Plan.
Item 28 Amendment by Employer.
The elective features of this Adoption Agreement may be amended by the Employer
as provided in Article 11 of the Plan, but all authority to amend the portions
of the Plan which constitute a prototype plan approved by the Internal Revenue
Service under Revenue Procedure 84-23 is specifically delegated irrevocably to
the Sponsor, subject to the provisions of Article 11 of the Plan.
16
<PAGE>
IN WITNESS WHEREOF, the following parties hereto have caused this Adoption
Agreement to be executed this the 6th day of February, 1989.
Equitable Securities Corporation
EMPLOYER
By: W. H. Cammack
---------------------------------------
Title: Chief Executive Officer
------------------------------------------
Adopting Employer
By:
---------------------------------------
Title:
------------------------------------
------------------------------------------
Adopting Employer
By:
---------------------------------------
Title:
------------------------------------
William H. Cammack, Sr., Co-Trustee
Trustee (Print)
Signature: W. H. Cammack
--------------------------------
William P. Johnston, Co-Trustee
Signature: William P. Johnston
--------------------------------
Equitable Securities Corporation Custodian
By: W. H. Cammack
---------------------------------------
Title: Chief Executive Officer
NOTICE TO ADOPTING EMPLOYER(S)
An Employer who ever maintained or who later adopts any plan, other than a
Paired Plan in which override options are not selected, in addition to this Plan
(including, after December 31, l985, a welfare benefit fund, as defined in
Section 419(e) of the Code, which provides post-retirement medical benefits
allocated to separate accounts for Key Employees) may not rely on the opinion
letter issued by the National Office of the Internal Revenue Service as evidence
that this Plan is qualified under Section 401 of the Code. If the Employer who
adopts or maintains multiple plans wishes to obtain reliance with respect to
Plan qualification, the Employer must apply to the appropriate Key District
Office of the Internal Revenue Service for a determination letter pursuant to
Revenue Procedure 84-23.
This Adoption Agreement may be used only in conjunction with Equitable
Securities Corporation Defined Contribution Basic Plan Document #01.
17
<PAGE>
CODA ADOPTION AGREEMENT
INSTRUCTIONS: This CODA Adoption Agreement is designed to be an amendment and
attachment to the following Adoption Agreements for the purpose of adopting a
cash or deferred arrangement (CODA) pursuant to section 401(k) of the Internal
Revenue Code:
- - Profit Sharing Plan Adoption Agreement #001 (Non-standardized)
- - Profit Sharing Thrift Plan Adoption Agreement #002 (Non-standardized)
- - Profit Sharing Plan Adoption Agreement #006 (Standardized)
<PAGE>
CODA ADOPTION AGREEMENT
[ ] Check here and complete the provisions below if Elective Deferrals are
permitted under this Plan.
Item 29: Employer Contributions Under the CODA Adoption Agreement.
(a) The Employer may make contributions to the CODA without regard to
current or accumulated earnings and profits for the taxable year or years ending
with or within the Plan Year. [ ] Check here if applicable.
Item 30: Elective Deferrals.
(a) A Participant may elect to have his or her Compensation reduced by the
following percentage or amount per pay period, or for a specified pay
period or periods, as designated in writing to the Plan Administrator
[CHECK ANY APPLICABLE OPTIONS AND FILL IN THE APPROPRIATE BLANKS].
[X] 1. Amount not in excess of [ 15 ] percent of a
Participant's Compensation.
[ ] 2. An amount not in excess of [ENTER A SPECIFIED DOLLAR AMOUNT]
________ of a Participant's Compensation.
No Participant shall be permitted to have Elective Deferrals made under
this Plan during any calendar year in excess of $7,000, multiplied by
the Adjustment Factor. $7,626 in 1989
(1) A Participant may elect to commence Elective Deferrals as of [ENTER
AT LEAST ONE DATE OR PERIOD DURING A CALENDAR YEAR] January 1.*
Such election shall become effective as of the [ENTER NUMBER] 1st
pay period following the pay period during which the Participant's
election to commence Elective Deferrals was made, or as soon as
administratively feasible thereafter. *Shall be March 1st for
1989 Plan Year. New hires upon date of participation.
(2) A Participant's election to have Elective Deferrals made pursuant
to a salary reduction agreement shall remain in effect until
modified or terminated. A Participant may modify the amount of
Elective Deferrals as of [ENTER AT LEAST ONE DATE OR PERIOD DURING
A CALENDAR YEAR] monthly but only one change per year. Such
election shall become effective as of the [ENTER NUMBER]__________
pay period following the pay period during which the Participant's
election to modify Elective Deferrals was made, or as soon as
administratively feasible thereafter.
(b) A Participant may base Elective Deferrals on cash bonuses that, at
the Participant's election, may be contributed to the CODA or
received by the Participant in cash. [X] Check here if such
Elective Deferrals may be made under the Plan.
1
<PAGE>
(1) A Participant shall be afforded a reasonable period to elect to defer
amounts described in Item 30(b) above. Such election shall become effective as
of the [ENTER NUMBER] __________ pay period following the pay period during
which the Participant's election to make such Elective Deferrals was made, or as
soon as administratively feasible thereafter.
(c) A Participant shall designate the amount and frequency of his or her
Elective Deferrals in the form and manner specified by the Plan Administrator.
Item 31: Qualified Non-elective Contributions.
(a) The Employer [elect one] [ ] will [X] will not make Qualified
Non-elective Contributions to the Plan. If the Employer does make Qualified
Non-elective Contributions to the Plan, then the amount of such contributions to
the Plan for each Plan Year shall be [elect one]:
[ ] 1. [ ] percent (not to exceed 15 percent) of the Compensation of all
Participants eligible to share in the allocation.
[ ] 2. [ ] percent of the net profits, but in no event more than [$ ] for
any Plan Year.
[ ] 3. An amount as determined by the Employer.
The amount of the special Qualified Non-elective Contributions allocated
under Item 33(b) below will be the amount needed to meet the Average Actual
Deferral Percentage test stated in section 17.03(f) of the CODA amendment.
Allocations of Qualified Non-elective Contributions shall be made in
accordance with Item 33 below.
Item 32: Qualified Matching Contributions.
(a) The Employer [elect one] [ ] will [X] will not make Qualified Matching
Contributions to the Plan on behalf of Participants who make Elective Deferrals.
(b) The Employer will make Qualified Matching Contributions to the Plan on
behalf of [elect one]:
[ ] 1. All Participants who make Elective Deferrals.
[ ] 2. All Participants who are Non-highly Compensated Employees and who
make Elective Deferrals.
(c) The amount of such Qualified Matching Contributions made on behalf of
each Participant as specified in Item 32(b) of this Adoption Agreement shall be
[elect as appropriate]:
2
<PAGE>
[ ] 1. [ ] percent of the Elective Deferral made for each Plan Year.
[ ] 2. The sum of [ ] percent of the portion of the Elective Deferral which
does not exceed [ ] percent of the Participant's Compensation plus [ ] percent
of the portion of the Elective Deferral which exceeds [ ] percent of the
Participant's Compensation, but does not exceed [ ] percent of the Participant's
Compensation.
[ ] 3. The Employer shall not match Elective Deferrals as provided in 1 or
2 above in excess of [$ ] or in excess of [ ] percent of the Participant's
Compensation.
(d) The amount of Qualified Matching Contributions made under section
17.06(e) of CODA and this Item 32 of the CODA Adoption Agreement, that are taken
into account as Qualified Non-elective Contributions under section 17.03(f) of
the CODA, subject to such other requirements as may be prescribed by the
Secretary of the Treasury, shall be:
[ ] 1. All such Qualified Matching Contributions.
[ ] 2. Such Qualified Matching Contributions that are needed to meet the
Actual Deferral Percentage test stated in section 17.03(f) of the CODA.
Item 33: Allocation of Qualified Non-Elective Contributions.
Not Applicable
(a) Allocations of Qualified Non-elective Contributions to each
Participant's account shall be made [elect one]:
[ ] 1. In the ratio in which each Participant's Compensation for the Plan
Year bears to the total Compensation of all Participants for such Plan Year.
[ ] 2. In the ratio in which each Participant's Compensation not in excess
of [$ ] for the Plan Year bears to the total Compensation of all Participants
not in excess of [$ ] for such Plan Year.
(b) In accordance with section 17.03(i)(2) of this CODA amendment,
allocations of special Qualified Non-elective Contributions to each Non-highly
Compensated Employee's account shall be made [elect one]:
[ ] 1. In the ratio in which each Non-highly Compensated Employee's
Compensation for the Plan Year bears to the total Compensation of all Non-highly
Compensated Employees for such Plan Year.
[ ] 2. In the ratio in which each Non-highly Compensated Employee's
Compensation not in excess of [$ ] of the Plan Year bears to the total
Compensation of all Non-highly Compensated Employees not in excess of [$ ] for
such Plan Year.
3
<PAGE>
Item 34: Limitations on Contributions.
(a) Amounts that are contributed or allocated to the accounts of each
Participant under the Plan must not, when aggregated with amounts that are
contributed or allocated to the accounts of each Participant under any other
plan or plans in accordance with the provisions of the underlying Plan document,
exceed the applicable limitations on contributions and allocations as stated in
the underlying Plan document and otherwise required under section 415 of the
Code and the regulations thereunder.
Item 35: Matching Contributions.
(a) The Employer [elect one] [X] will [ ] will not make Matching
Contributions to the Plan on behalf of Participants who make Elective Deferrals.
Complete Items 35(b), 35(c), 35(d) and 38(a) of this Adoption Agreement if
Matching Contributions will be made to the Plan.
(b) The Employer will make Matching Contributions to the Plan on behalf of
[elect one]:
[X] 1. All Participants who make Elective Deferrals.
[ ] 2. All Participants who are Non-highly Compensated Employees and
who make Elective Deferrals.
(c) Matching contributions will be [elect one]:
[ ] 1. Nonforfeitable when made.
[X] 2. Subject to the vesting schedule applicable to employer
contributions, other than Elective Deferrals and Qualified Non-elective
Contributions, under the Plan.
(d) The amount of such Matching Contributions made on behalf of each
Participant as specified in Item 35(b) of this Adoption Agreement shall be
[elect as appropriate]: *
[ ] 1. [ ] percent of the Elective Deferral made for each Plan Year.
[ ] 2. The sum of [ ] percent of the portion of the Elective Deferral which
does not exceed [ ] percent of the Participant's Compensation plus [ ] percent
of the portion of the Elective Deferral which exceeds [ ] percent of the
Participant's Compensation, but does not exceed [ ] percent of the Participant's
Compensation.
[ ] 3. The Employer shall not match Elective Deferrals as provided in 1 or
2 above in excess of [$ ] or in excess of [ ] percent of the Participant's
Compensation.
*Amount to be determined by Board of Directors annually.
4
<PAGE>
Item 36: Special Distributions.
(a) Elective Deferrals, Qualified Non-elective Contributions and income
allocable to such amounts shall be distributable upon separation from service,
death, or disability, as defined in the underlying Plan document, and, in
addition [elect options, if any]:
[X] 1. Termination of the Plan without the establishment of a successor
plan.
[X] 2. As soon as administratively feasible after the sale to an entity
that is not an Affiliated Employer, of substantially all of the assets used by
the Employer in the trade or business in which the Participant is employed.
[X] 3. As soon as administratively feasible after the sale, to an entity
that is not an Affiliated Employer, of an incorporated Affiliated Employer's
interest in a subsidiary.
[X] 4. Upon the attainment of age 59 1/2 by the Participant.
[X] 5. Upon the hardship of the Participant, to the extent provided for in
section 17.05(b) of the CODA and Item 36(b) of this CODA Adoption Agreement, and
subject to applicable regulations prescribed by the Secretary of the Treasury.
(b) The following objective nondiscretionary standards shall be applied in
determining financial hardship under Item 36(a)(5) of the CODA Adoption
Agreement.
(1) [Each adopting employer must state the criteria for determining
immediate and heavy financial need]
"Safe harbor" hardships
- -----------------------------------------------------------
- -----------------------------------------------------------
- -----------------------------------------------------------
- -----------------------------------------------------------
- -----------------------------------------------------------
- -----------------------------------------------------------
5
<PAGE>
(2) [Each adopting employer must state the criteria for determining the
amount required to meet such need]
- -----------------------------------------------------------
"Safe harbors"
- -----------------------------------------------------------
- -----------------------------------------------------------
- -----------------------------------------------------------
- -----------------------------------------------------------
- -----------------------------------------------------------
- -----------------------------------------------------------
(3) [Each adopting employer must state the criteria for determining whether
other financial resources of the Participant are reasonably available]
- -----------------------------------------------------------
"Safe harbor"
- -----------------------------------------------------------
- -----------------------------------------------------------
- -----------------------------------------------------------
- -----------------------------------------------------------
- -----------------------------------------------------------
Item 37: Claims For Excess Elective Deferrals.
(a) Participants who claim Excess Elective Deferrals for the preceding
calendar year must submit their claims in writing to the Plan Administrator by
[SPECIFY A DATE BETWEEN MARCH 1 AND APRIL 15] March 1 .
Item 38: Forfeitures (Required if the Employer elects to make Matching
Contributions in Item 35 of this Adoption Agreement)
(a) Forfeitures of Excess Aggregate Contributions shall be [elect
one]:
[X] 1. Applied to reduce matching Employer contributions.
[ ] 2. Allocated, after all other forfeitures under the Plan, to each
Participant's Matching Contribution account in the ratio which each
Participant's Compensation for the Plan Year bears to the total Compensation of
all Participants for such Plan Year. Such forfeitures will not be allocated to
the account of any Highly Compensated Employee.
6
<PAGE>
Item 39: Compensation.
(a) [X] (Check if applicable) In addition to Compensation as defined in
section 17.02(f) of the amendment to the underlying Plan document, Compensation
shall also include compensation which is not currently includible in the
Participant's gross income by reason of the application of sections 125,
402(a)(8), 402(h)(1)(B), or 403(b) of the Code.
Item 40: Effective Date.
(a) The provisions of this Adoption Agreement amendment shall be effective
as of [ENTER THE FIRST DAY OF THE FIRST PLAN YEAR FOR WHICH THIS AMENDMENT IS TO
BE EFFECTIVE, BUT NO EARLIER THAN THE LATER OF THE FIRST DAY OF THE FIRST PLAN
YEAR BEGINNING AFTER DECEMBER 3l, 1986, OR THE FIRST DAY OF THE PLAN YEAR IN
WHICH THIS AMENDMENT IS ADOPTED] January 1, 1989.
FOOTNOTES: The following provisions of the model CODA warrant additional
explanation:
1. Basic Plan Document Sections 17.02(h) and 17.02(m). Leased employees
that are defined as employees in section 17.02(h) of the amendment to the basic
plan document must be considered for purposes of determining the identity and
number of Highly Compensated Employees.
2. Basic Plan Document Section 17.03(e). Excess Elective Deferrals that are
distributed after April 15 are not only includible in the Participant's gross
income in the taxable year made, but are also includible in the Participant's
gross income again in the year when distributed.
3. Basic Plan Document Sections 17.03(h) and 17.07(d)(1). The model CODA
permits a plan to distribute Excess Contributions and Excess Aggregate
Contributions on or before the last day of the Plan Year after the Plan Year in
which such excess amounts arose. Distribution of such amounts, or other
corrective action, is required under section 401(k)(8) and 401(m)(6) of the Code
if the Plan is to maintain its tax-qualified status. However, if such excess
amounts, plus any income and minus any loss allocable thereto, are distributed
more than 2 1/2 months after the last day of the Plan Year in which such excess
amounts arose, then section 4979 of the Code imposes a ten (10) percent excise
tax on the employer maintaining the plan with respect to such amounts.
4. Basic Plan Document Section 17.03(i). Any additional contributions that
are allocated pursuant to this section shall be subject to the limitations under
section 415(c) of the Code.
5. Basic Plan Document Section 17.08. If section 17.08 is not adopted,
employer contributions, including Elective Deferrals, are limited to accumulated
earnings or profits for the taxable year or years ending within the Plan Year.
7
<PAGE>
6. Adoption Agreement Item 29(a). Unless this option is elected, the
CODA will be subject to the profit-sharing plan's requirement that employer
contributions be made out of current or accumulated net profits. Accordingly,
all employer contributions under the CODA, including Elective Deferrals and
Qualified Non-elective Contributions, will be limited to the Employer's net
profits.
7. Adoption Agreement Item 35(d). The level of contributions chosen by the
Employer is subject to both the section 401(m)(2) discrimination test and the
section 415 limitations.
8. Adoption Agreement Item 36(a)(5). For years beginning after December 31,
1988, hardship withdrawals may only be made from amounts attributable to
Elective Deferrals.
9. Adoption Agreement Item 37(a). The Employer may choose to limit its
acceptance of claims to a date that is no later than March 1.
DATE: February 6, 1989
Equitable Securities Corporation
EMPLOYER
By: W. H. Cammack
-------------------------------
Title: Chief Executive Officer
Adopting Employer
By:
-------------------------------
Title:
----------------------------
Adopting Employer
By:
-------------------------------
Title:
----------------------------
William H. Cammack, Sr., Co-Trustee
----------------------------------
Trustee (Print)
Signature: W. H. Cammack
------------------------
William P. Johnston
----------------------------------
Signature: William P. Johnston
------------------------
Title: Co-Trustee
8
<PAGE>
REVISED COPY
FIRST AMERICAN CORPORATION
PROTOTYPE DEFINED CONTRIBUTION PLAN AND TRUST
ADOPTION AGREEMENT
PROFIT SHARING PLAN
ADOPTED BY
Equitable Securities Corporation
--------------------------------
(Name of Employer)
AS THE
Equitable Securities Corporation
Profit Sharing Plan
--------------------------------
(Name of Plan)
Adoption Agreement #001 (Non-standardized)
Defined Contribution Basic Plan Document #01
<PAGE>
THIS ADOPTION AGREEMENT, and the provisions of the First American
Corporation Prototype Defined Contribution Plan and Trust, are hereby adopted by
the Employer named hereinafter in order to establish a qualified plan and trust
for the exclusive benefit of participating Employees of the Employer and their
beneficiaries.
Plan Name: Equitable Securities Corporation Profit Sharing Plan
Item 1 Plan Information.
(a) The Employer hereby
[ ] establishes the above-named Plan
[x] amends; restates and continues the above-named Plan, which was
originally effective on 7-1-75 ,
[ ] amends, restates and continues as the above-named Plan the plan
previously named the ____________ , which was originally effective on
__________ ,
by adopting the FIRST AMERICAN CORPORATION PROTOTYPE DEFINED
CONTRIBUTION PLAN AND TRUST as established on August 27, 1985.
(b) The Effective Date of this Plan adoption or amendment shall be 7-1,
1984.
(c) The Plan Year shall end on June 30.
(d) The Limitation Year shall be [x] the Plan Year.
[ ] the 12 consecutive month period
ending on_____________________.
Item 2 Employer Information.
The Employer furnishes the following information:
Name: Equitable Securities Corporation
Business Address: First American Center, 25th Floor, Nashville, TN 37238
Nature and Principal Location(s) of Business: Investment Banker Address
same as above
Date of Incorporation or Commencement of Business: 7-1-72
Employer's I.R.S. Employer Identification Number 62-0871146
Employer's Fiscal Year Ends: June 30
Employer contributes to the following additional Pension or Profit Sharing
Plans: N/A
1
<PAGE>
Type of Entity: [ ] Corporation [ ] Subchapter S Corporation
[ ] Sale Proprietorship [ ] Partnership [ ] Tax Exempt Organization
[ ] Professional Corporation [ ] Professional Association
Item 3 Plan Admistration.
The Trustee shall be
[x] First American Trust Company N.A.
[ ] (specify) Name: ______________________________________
Address: ___________________________________
Telephone Number:___________________________
The Plan Administrator, whose duties are set forth in Article 9 of the Plan, and
the agent for service of process shall be
[x] The Employer, Attn: Floyd E. Lee, Sr.
Telephone Number: (615) 244-9420
[ ] Other (specify): __________________________________
___________________________________________________
Telephone Number: _________________________________
Address: __________________________________________
Item 4 Employee Classes Excluded.
The following class(es) of persons employed by the Employer shall not be
eligible to participate in the Plan:
[x] (a) No exclusions.
[ ] (b) Hourly paid
[ ] (c) Salaried
[ ] (d) Piece work paid
[ ] (e) Commission paid
[ ] (f) Employees covered by a collective bargaining agreement between the
Employer and representatives of such Employees in which retirement
benefits were the subject of good faith bargaining, except as otherwise
provided in the collective bargaining agreement. For this purpose, the
term "representatives of such Employees" shall not include any
organization more than l/2 of whose members are Employees who are
owners, officers or executives of the Employer.
[ ] (g) Others (specify): ____________________________________
2
<PAGE>
Item 5 Eligibility and Participation.
Employees shall become eligible to participate in the Plan according to the
following schedule (note: mark only one selection, and further note: that if a
box is marked, but no age or service requirement in the selection is filled in,
or a "0" is filled in, or a "N/A" is filled in, or "None" is filled in, then no
age or service requirement (as the case may be) shall be required in that
selection):
[ ] (a) Immediately upon hire or, if later, upon attainment of age ___
(note: not more than 21*).
[ ] (b) On the Anniversary Date coincident with or immediately following the
date the Employee's Service begins.
[ ] (c) On the Anniversary Date coincident with or immediately following the
later of:
(I) attainment of age (note: not more than 20 1/2*) years, and
(II)the date (note: not more than 30) months after the day the Employee was
first employed by the Employer.
[x] (d) On the Anniversary Date or the date 6 months after the Anniversary
Date, whichever comes first, coincident with or immediately following
completion of 1 year (note: not more than 3) Year(s) of Service and
attainment of age 21 (note: not more than 21*) years.
[ ] (e) On the Anniversary Date in the Plan Year during which the Employee
completes _____ (note: not more than 3) Years of Service and attains
age ___ note: not more than 21*) years.
[ ] (f) On the Anniversary Date nearest the date on which the Employee has
both completed _____ (note: not more than 3) Years of Service and
attained age _____ (note: not more than 21*) years.
[ ] (g) On the first day of the calendar month coincident with or
immediately following the date on which the Employee has both completed
_____(note: not more than 3) Years of Service and attained age _____
(note: not more than 21*) years.
* If this Adoption Agreement applies to any Plan Year beginning prior to January
1, 1985, then the age requirement for each such Plan Year shall be 22 (note:
can be up to 4 years greater than the age requirement set forth above).
Each Employee who has satisfied the above age and Service requirements as of the
Effective Date of this adoption shall become a Participant on the Effective
Date. If this is a continuation of a predecessor plan, no Employee who has been
a Participant under the predecessor plan and who is otherwise eligible to
participate in this Plan shall be excluded from participation because of failure
to satisfy the above age and Service requirements.
Notes: (1) All officers, shareholders, and highly compensated Employees covered
by the Plan must meet, as of the Effective Date, the eligibility
requirements estabished above for future Employees.
3
<PAGE>
(2) If more than 1 Year (6 months if option (c) is elected) of Service is
required for participation in the Plan, an option must be elected In Item 10
which will provide full and immediate vesting on the Employee's entry into
participation.
Item 6 Hours of Service.
Hours of Service shall be determined for all purposes under the Plan on the
basis selected as follows. (Note: Only one method may be selected for any class
of Employees; if different methods are selected for different classes of
Employees, then the combination of methods selected cannot result in
discrimination. If only one method to selected, it shall apply to all classes of
Employees covered by the Plan.)
[x] (a) On the basis of actual hours for which an Employee is paid or
entitled to payment.
[ ] (b) On the basis of days worked: an Employee shall be credited with 10
Hours of Service if under Section 1.23 of the Plan such Employee would
be credited with at least 1 Hour of Service during the day.
[ ] (c) On the basis of weeks worked: an Employee shall be credited with
45 Hours of Service if under Section 1.23 of the Plan such Employee
would be credited with at least 1 Hour of Service during the week.
[ ] (d) On the basis of semi-monthly payroll periods: an Employee shall be
credited with 95 Hours of service if under Section 1.23 of the Plan such
Employee would be credited with at least 1 Hour of Service during the
semi-monthly payroll period.
[ ] (e) On the basis of months worked: an Employee shall be credited with
190 Hours of Service if under Section 1.23 of the Plan such Employee
would be credited with at least 1 Hour of service during the month.
[ ] Option _____ shall apply to hourly paid Employees covered by the Plan.
[ ] Option _____ shall apply to salaried Employees covered by the Plan.
[ ] Option _____ shall apply to (specify) _____ covered by the Plan.
Item 7 Employer Contributions.
The Employer contribution for each Plan Year, pursuant to Section 3.01, shall be
out of Net Profits as follows:
[x] such amount as the Employer, in its sole discretion, shall elect to
contribute for the Plan Year.
[ ] for each Plan Year in which the current Net profits of the Employer
exceed $__________ , out of the current Net Profits for that year, an
amount equal to__________% (note: not to exceed 15%) of the aggregate
Compensation of the Participants through the last day of such year (but
for that calculation Compensation shall not be greater than
$__________________ ); provided, however, that If the excess of current
Net
4
<PAGE>
If a Participant receives a distribution from his Employer Account upon
termination of Service and is reemployed by the Employer before he incurs 5
consecutive Breaks in Service (or in Plan Years beginning before January 1,
1985, before he incurs a Break in Service), then he [x] will be required [ ]
will not be required to repay the entire amount of the distribution in order to
have his Forfeiture reestablished under the Plan.
Item 8 Participant Contributions.
Subject to the provisions of Section 3.03 of the Plan,
(a) Rollover contributions from individual retirement accounts and other
qualified plans
[ ] shall not be allowed.
[X] shall be allowed.
(b) Contributions by Participants
[X] shall not be required for participation in the Plan. -
[ ] shall be required for participation in the Plan, in the amount of
________ % (note: not more than 6%) of Compensation.
(c) Voluntary non-deductible contributions by Participants
[ ] shall not be allowed.
[X] shall be allowed.
(d) Voluntary deductible contributions by Participants
[X] shall not be allowed.
[ ] shall be allowed.
(e) If voluntary contributions are allowed under 8(c) and/or 8(d), complete the
following items (i) and (ii).
(i) Such contributions
[x] shall be made regularly by payroll deduction, and shall share in
investment income for the Plan Year for which made.
[ ] shall be made as determined by the Participant, and shall not share
in investment income for the Plan Year for which made.
(ii) Such contributions shall be
[ ] combined with other Plan assets for investment purposes.
[ ] invested separately from other Plan assets in an account consisting
of certificates of deposit, money market certificates, collective
investment trusts, other short-term debt security instruments or any
other investments acceptable to the Trustee.
6
<PAGE>
Item 9 Retirement Requirement.
(a) The Normal Retirement Age of a Participant shall be
[x] age 65 (note: not later than the earlier of age 65 or any other normal
retirement age set by the Employer).
[ ] the later of age _____ (note: not later than the earlier of age 65 or
any other normal retirement age set by the Employer) or the age on which
the _____ (note: not to exceed 10th) anniversary of his participation
commencement date occurs. The participation commencement date to the
first day of the first Plan Year in which the Participant commenced
participation in the Plan.
(b) [ ] (Note: this selection is optional.) A Participant may retire early with
full Vesting on the first day of any month following his attainment of
age (note: between 55 and 65 years) if he has then completed years of
[ ] Vesting Service.
[ ] Service with the Employer.
(c) [ ] (Note: this selection is optional.) For purposes of the Plan,
Disability shall not include the following:
[ ] a physical or mental condition which results directly or indirectly
from (note: select one or more):
[ ] injury intentionally self-inflicted
[ ] injury or disease resulting from military service
[ ] injury or disease suffered or contracted prior to the last date
of an Employee's commencement of Service
[ ] Other (specify):___________________________________________________
(d) Benefits under Article 8 of the Plan due a Separated Participant who is not
eligible for normal retirement or early retirement on his separation from
Service shall be paid to the Separated Participant or applied for his
benefit from his Personal Account(s) as follows (note: select only one):
[ ] within 60 days following the close of the Plan Year during which the
Separated Participant incurs a Break in Service, or as soon thereafter
as determinable.
[ ] within 60 days following the close of the Plan Year during which the
Separated Participant attains what would have been his Normal
Retirement Age.
[x] in a manner uniformly and nondiscriminatorily established by the
Plan Administrator and not otherwise in contravention of Section 8.06
of the Plan.
7
<PAGE>
Item 10 Vesting Schedule.
A Participant's Employer Account shall be vested in him according to the
following schedule:
Full Years of [ ] [ ] [ ] [ ] [ ] [ ] [ ] [X]
Vesting Service (a) (b) (c) (d) (e) (f) (g) (h)
- ------------------ ----- ---- ---- ---- ---- ---- ---- ----
Less than 1 100 0% 0% 0% 0% 0% 0% ----%
1 100 0 0 10 0 0 0 ----
2 100 20 0 20 0 0 0 ----
3 100 40 100 30 0 0 0 ----
4 100 60 100 40 0 0 40 40
----
5 100 80 100 50 25 0 45 50
----
6 100 100 100 60 30 0 50 60
----
7 100 100 100 70 35 0 60 70
----
8 100 100 100 80 40 0 70 80
----
9 100 100 100 90 45 0 80 100
----
10 100 100 100 100 50 100 90 100
----
11 100 100 100 100 60 100 100 100
----
12 100 100 100 100 70 100 100 100
----
13 100 100 100 100 80 100 100 100
----
14 100 100 100 100 90 100 100 100
----
15 or more 100 100 100 100 100 100 100 100
----------
Notes: (1) No schedule shall be elected under option (h) which is not at
least as favorable at each duration as either option (e),
applied uniformly, or option (f), applied uniformly.
(2) If this election represents a change in the Plan's vesting
schedule, each Participant with at least 5 Years of Service with
the Employer may elect within a reasonable period after the
adoption of the change to have his nonforfeitable percentage
computed under the Plan without regard to the change.
If the Plan includes or may in the future include any insurance Policies, check
one of the following blocks:
[ ] The vesting schedule elected shall apply to the value of the Policies as
well as to the remainder of the Participant's Employer Account.
[ ] Vesting schedule_____________ shall apply to the value of the Policies, and
vesting schedule_____________ shall apply to the remainder of the
Participant's Employer Account.
8
<PAGE>
Item 11 Vesting Service Exclusions.
- -----------------------------------
In determining a Participant's years of Vesting Service, the following
periods of Service shall be excluded in addition to the exclusions set out in
Section 1.57 of the Plan:
[ ] (a) Service prior to the Plan Year during which a Participant attains age
_________ (note: not more than 18*) years.
[x] (b) Service during any period for which the Employer did not maintain
this Plan or a predecessor plan.
[ ] (c) Service during any period for which the Employee made no
contributions to the Plan, if Participant contributions were required
to participate in the Plan for such period.
[xx](d) Pre-Break Service excluded under the "Rule of Parity" dealIng with
the relationship between absence and pre-Break Service.
[ ] (e) None of the above exclusions.
[ ] (f) If this Plan is a continuation of a plan which was in effect prior to
ERISA, and if the provisions of the pre-ERISA plan with respect to
(1) non-continuous employment and (2) the measurement of periods of
employment are intended to apply under this Plan to Service prior to
the date ERISA first applied to this Plan, check this block.
* If this Adoption Agreement applies to any Plan Year beginning prior to
January 1, 1985, then the age requirement for each such Plan Year shall be
________ (note: can be up to 4 years greater than the age requirement set
forth above.)
Note: Option (f) of this Item 11 may be elected, if appropriate, in addition
to options (a) through (e).
Item 12 Compensation.
For purposes of the allocation of Employer contributions and Forfeitures,
Compensation (as defined in Section 1.10 of the Plan) shall be based on
compensation [X] actually paid or [ ] accrued, and shall
[x] be total Compensation (note: this option must be selected if this Plan
is integrated with Social Security).
[ ] exclude:
[ ] overtime compensation
[ ] discretionary bonuses
[ ] contractual bonuses
[ ] _________% of commissions
[ ] other extraordinary remuneration:
(specify) _____________________________________________
[X] An Individual's Compensation during any Plan Year, for purposes of this
Plan, shall be limited to the compensation of the highest salaried
participant of the corporation.
9
<PAGE>
For purposes of the allocation, Compensation of a Participant shall include
[ ] his Compensation for the entire Plan Year.
[x] only his Compensation for the portion of the Plan Year during which he
was a Participant.
[ ] only his Compensation for the portion of the Plan Year commencing with
the first day of the month during which he became a Participant.
Note: If "accrued" Compensation is elected above, the Employer must adopt a
written resolution each Plan Year specifying the amount of each
Participant's Compensation for such year.
Item 13 Allocation of Contributions.
This Plan may be either non-integrated or Integrated with Social Security.
(Note: Choose one method only.)
[ ] (a) NON-INTEGRATED
Employer contributions (and Forfeitures, if to be allocated in the same
manner as Employer contributions pursuant to Item 7) shall be allocated,
pursuant to the provisions of Sections 4.01 and 4.02 of the Plan, to each
Participant's Employer Account in the proportion that such Participant's
Ccmpensation for the Plan Year bears to the total Compensation for the Plan
Year of all Participants entitled to share in the allocation.
---------------------------
[x] (b)INTEGRATED
Allocation of Employer contributions (and Forfeitures, if to be allocated in
the same manner as Employer contributions pursuant to Item 7) under Sections
4.01 and 4.02 of the Plan shall be as follows:
First, to each Participant's Employer Account in an amount equal to MAX ____%
(not more than the "Max", as defined below) of the Participant's Compensation
in excess of (note: choose one option only):
[X] 100% (not to exceed 100%) of the Taxable Wage Base in effect at the
---
beginning of the Plan Year.
[ ] $______ (not to exceed the Taxable Wage Base in effect at the
Effective Date of this adoption; or if in excess of such Taxable Wage
Base, the "Max" limitation shall be reduced by a fraction, the
numerator of which is such Taxable Wage Base and the denominator of
which is the dollar amount selected).
The term "Max" shall mean the employer's OASDI tax rate as of the beginning
of the Plan Year. Unless modified by Congress, the "Max" shall be as follows:
1984 - 1987: 5.70%
1988 - 1989: 6.06%
after 1989: 6.20%
10
<PAGE>
Second, the remaining balance, if any, of the Employer contribution (and
Forfeitures, if to be allocated in the same manner as Employer contributions
pursuant to Item 7) shall be allocated to each Participant's Employer Account
in the proportion that such Participant's Compensation bears to the total
Compensation of all Participants.
If the total amount of Employer contributions (and Forfeitures, if to be
allocated in the same manner as Employer contributions pursuant to Item 7) is
insufficient to complete the first phase of the allocation described above,
such total amount shall be allocated in proportion to the amount of each
Participant's Compensation in excess of the Integration level elected above.
If an Employee's entry date for participation in the Plan is not the
Anniversary Date, then the integration level elected above (i.e., the
Integration break-point) [xx] shall [ ] shall not be prorated in the Plan
Year In which the Participant enters or reenters the Plan in the ratio that
the length of the Participant's participation in the Plan that Plan Year
bears to the length of that entire Plan Year.
Item 14 Top Heavy Plans (Code Section 416).
This Item automatically applies only in Plan Years in which the Plan is a Top
Heavy Plan, but all options herein must be completed by every Employer in
case the Plan ever, becomes Top Heavy.
(a) Single Plan-Minimum Contributions and Allocations. Notwithstanding the
provisions of Item 13, and before any contributions are allocated
thereunder, minimum Employer contributions shall be made
and allocated pursuant to Section 13.03 of the Plan in a Plan Year in
which the Plan is Top Heavy.
(b) Minimum Vesting. Notwithstanding the provisions of Item 10, the vested
Interest of each Employee in his Employer Account in a Plan Year in
which the Plan is Top Heavy shall be determined pursuant to Section 13.04
of the Plan on the basis of the following vesting schedule, unless a
more rapid vesting schedule has been selected in Item 10:
Full Years of [ ] [x]
Vesting Service (1) (11)
----------------- ------- ---------
Less than 1 0% 0%
1 0 0
2 0 20
3 100 40
4 100 60
5 100 80
6 or more 100 100
(Note: If you do not make an election, then option (11) shall apply).
If the vesting schedule under the Plan shifts in or out of the above schedule
for any Plan Year because of a change in the Plan's Top Heavy status, then
such shift shall be considered an amendment to the vesting schedule and the
election rule for Participants with 5 or more Years of Service set forth in
Section 11.03(d) of the Plan applies. Furthermore,
11
<PAGE>
any portion of the Employer Account that become vested under this minimum
vesting schedule for a Top Heavy Plan shall remain nonforfeitable if the Plan
shifts out of Top Heavy status.
(c) Multiple Plans-Minimum Contributions and Allocations. This subsection
shall only apply if you sponsor another qualified retirement plan.
(1) Minimum Contributions and A1locations.
(i) Code Section 415 (e) Buy-Backs. If another retirement plan is a
qualified defined benefit plan, and if for a Plan Year the plans are
Top Heavy (but not Super Top Heavy), then the "Code Section 415(e) buy
back" provisions, as defined in Section 13.05 of the Plan,
[x[ shall be utilized, so that 125%
[ ] shall not be utilized, so that 100%
of the dollar limitations set out in Section 4.07 of the Plan shall be
used in computing the Defined Benefit Fraction and the Defined
Contribution Fraction.
(ii) Minimum Accruals.
[ ] Even though the Plan is not a Paired Plan, the Plan shall be
considered to be subject to the Paired Plan minimum allocation
provisions of Article 14 of the Plan as if it were a Paired Plan.
[ ] The following overriding provisions shall control instead of the
Paired Plan provisions regarding minimum accruals:
___________________________________________
___________________________________________
___________________________________________
___________________________________________
___________________________________________
(iii) No Duplicate Benefits. If another retirement plan is a qualified
defined contribution plan which is to be treated as a Paired Plan, then
the required minimum Employer contributions and allocations shall be
provided only under [X] this Plan [ ] the other qualified defined
contribution plan.
(2) Present Value. For purposes of establishing Present Value to compute the
Top Heavy Ratio for the Plan as set forth in Section 13.02(j), any
benefit under a qualified defined benefit pension plan maintained by the
Employer shall be discounted only for mortality and interest based on
the following factors, which, if a lump sum benefit is available,
should be the factors used to compute a lump sum benefit:
12
<PAGE>
Mortality Table: [ ] the UP-1984 Mortality Table
[x] as provided in the qualified defined benefit
pension plan
[ ] Other: ______________
Interest Rate: [ ] the current rate specified for the purchase of Immediate
annuities by the Pension Benefit Guaranty Corporation
[X] as provided in the qualified defined benefit pension
plan
[ ] Other: ______________
Item 15 Allocation in Year of Termination.
In performing each annual allocation of Employer contributions, former
Participants who complete 1000 Hours of Service during a Plan Year but
who are no longer employed on the allocation date shall be:
[X] Included.
[ ] excluded, except that any former Participant whose Service
terminated due to death, disability, or retirement shall be included.
[ ] excluded.
Note: Exclusion of such persons may under certain circumstances
endanger the continued qualification of the Plan by the Internal
Revenue Service.
Item 16 Loans.
The Plan Administrator [ ] shall [x] shall not permit loans to Participants
pursuant to the provisions of Section 5.02 of the Plan.
Item 17 Withdrawals.
Withdrawals - Employer contributions
[ ] Withdrawals from a Participant's Employer Account shall not be
permitted.
[ ] Withdrawals of up to 100% (note: not more than 100%) of a
Participant's vested interest in his Employer Account may be permitted.
Withdrawals of Employer contributions shall be limited to the following
instances (note: 1 and 2 are optional; any combination (or neither) may
be selected).
[X] (1) A withdrawal shall be permitted only in the case of
financial hardship, as determined by the Plan Administrator
in a uniform and nondiscriminatory manner.
[ ] (2) A withdrawal shall be permitted only to those Participants
(note: if more than one is selected, the earliest shall
apply)
[ ] who have _______ Years of Service.
[ ] who are eligible for early retirement under this Plan.
[ ] who have terminated employment with the Employer.
13
<PAGE>
Withdrawal--Mandatory Employee contributions
(Note: this section of the Adoption Agreement should be filled out only if
mandatory Employee contributions are a feature of this Plan.)
[ ] Withdrawals from a Participant's Personal Account of mandatory
Employee contributions shall not be permitted.
[ ] Withdrawals of up to _______% (note: not more than l00%) of mandatory
Employee contributions from a Participant's Personal Account may be
permitted. [ ] If the Participant is less than 50% vested in his Employer
Account, then his withdrawal of mandatory Employee contributions shall
result in a Forfeiture of that portion of his Employer Account not
attributable to minimum allocations in Top Heavy Plan Years.
Withdrawal-- Voluntary Non-deductible Employee contributions
(Note: this section of the Adoption Agreement should be filled out only if
voluntary non-deductible Employee contributions are a feature of this
Plan.)
[ ] Withdrawals from a Participant's Personal Account of voluntary
non-deductible Employee contributions shall not be permitted.
[x] Withdrawals of up to 100% (note: not more than 100%) of voluntary
non-deductible Employee contributions from a Participant's Personal
Account may be permitted.
Withdrawal Restrictions
[ ] A withdrawal of either Employer or Employee contributions may not include
the income in the account.
Withdrawals of Employee contributions shall be 1imited to the following
instances (note: 1, 2, 3 and 4 are optional: any combination (or none) may
be selected):
[X] (1) A withdrawal shall be permitted only if the right of a Participant to
make voluntary contributions to his Personal Account shall be
suspended for (note: select only one)
[x] the next 1 Year (note: not less than 6) months.
[ ] the later of the next _________________ (note: not less than 6)
months or the time the withdrawal from the Personal Account is
paid back in full by the Participant.
[x] (2) A withdrawal shall be permitted in the case of financial hardship, as
determined by the [ ]Employer [x] Plan Administrator in a uniform and
nondiscriminatory manner.
[ ] (3) A withdrawal shall be permitted only to those Participants (note:
if more than one is selected, the earliest shall apply)
[ ] who have __________ Years of Service,
[ ] who are eligible for early retirement under this Plan.
[ ] who have terminated employment with the Employer.
14
<PAGE>
[ ] (4) Other specify, but note: vested benefit may not be forfeited
under this option):
__________________________________________________________
__________________________________________________________
__________________________________________________________
Item 18 Insurance.
Insurance Policies [ ] shall [ ] may [x] shall not be purchased to provide
incidental death benefits on behalf of Participants, pursuant to the
provisions of Section 9.05 of the Plan, in addition to the purchase of
any annuity contract which is required under Item 19 or under the
provisions of the Plan.
Item 19 Distribution Involving Life Contingencies.
Benefits under the Plan [x] may [ ] may not be paid in the form of an annuity
involving life contingencies. (Note: Optional forms of benefit payment may
not be eliminated after July 30, 1984.)
If benefits may be paid in the form of an annuity, then the Qualified Joint
and Survivor Annuity shall be an annuity with [ ] 50% [ ] 75% [x] 100% of the
annuity benefit continuing to a Participant's surviving Spouse at the
Participant's death.
If ever a death benefit is to be paid to a Spouse of a Participant in the
form of annuity described in Section 7.02(c)(2) of the Plan (i.e., a
qualified preretirement survivor annuity), then that Spouse [x] may [ ] may
not elect an optional form of death benefit payment (such as a lump sum)
provided under the Plan. (Note: If a Spouse may elect an optional form of
death benefit payment, then a special notice concerninq the qualified
preretirement survivor annuity must be given to the Participant between the
ages of 32 and 35 pursuant to Section 7.02(c)(5) of the Plan.)
Item 20 Investments. (Note: Choose any one option or permitted
combination of options from (a), (b) or (c).)
(a) Investment decisions shall be controlled by (note: choose only one
option from (a))
[ ] the Trustee in its sole discretion.
[x] an Investment Manager appointed by the Employer pursuant to the
provisions of Section 10.09 of the Plan.
[ ] the Employer, pursuant to the provisions of Section 10.10 of the
Plan.
[ ] each Participant, with respect to his Employer Account(s) and his
Personal Account(s), if any, pursuant to the provisions of
Section 10.11 of the Plan.
[ ](b) Although the Trustee, the Employer, or an Investment Manager has
been designated above to control Investments, the Plan Administrator
may elect to permit each Participant to have the right, at his
discretion, to control the Investment of his Personal Account(s), if
any, and the vested amount of his Employer Account, if permitted by
the Committee, pursuant to the provisions of Section 10.11 of the
Plan. (Note: this option should not be chosen if the last option in
(a) was chosen.)
[ ](c) The Trustee may delegate its duty physically to hold and safeguard
the assets of the Plan to the Sponsor as custodian.
15
<PAGE>
[ ] (d) Investment by the Plan in Qualifying Employer Securities
shall be permitted to a maximum of____% (note: not more than 100%)
of [ ] that portion of the Trust Fund attributable to Employer
Contributions and Forfeitures [ ] the value of the entire Trust
Fund (note: election of this second option may require the
registration of such securities with the Securities and Exchange
Commission). With respect to the voting of such Qualifying Employer
Securities, the following entity shall vote such shares (note:
select only one):
[ ] the Trustee.
[ ] the Participant to whose Account the shares have been
allocated.
[ ] the Plan Administrator or, if appointed, the Committee.
Item 21 Multiple Plans-Limitation on Total Benefits (Code Section 415).
- ------------------------------------------------------------------------
If you maintain or ever maintained another qualified plan in which any
Participant in this Plan is (or was) a Participant or could possibly become a
Participant, you must complete this section.
(a) [ ] If the Participant is covered under another qualified defined
contribution plan maintained by the Employer, other than a Master
or Prototype Plan (note: select only one option):
[ ] The provisions of subsection 4.07(b)(1) through subsection
4.07(b)(6) of the Plan shall apply, as if the other plan was a
Master or Prototype Plan.
[ ] The amount of Annual Additions allocated to any Participant's
Accounts under this Plan shall be limited to the Maximum
Permissible Amount, and Excess Amounts will be properly
reduced, as follows:
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
[X] This situation is not applicable
(b) [ ] If the Participant is or ever has been a Participant in a
defined benefit plan maintained by the Employer (note: select only
one option):
[ ] In any Limitation Year, the Annual Additions credited under
this Plan to the Participant may not cause the sum of the
Defined Benefit Fraction and Defined Contribution Fraction to
exceed 1.0. If the Employer's contribution that would otherwise
be made on the Participant's behalf during the Limitation Year
would cause the 1.0 limitation to be exceeded, the rate of
contribution under this Plan will be reduced so that the sum of
the fractions equals 1.0. If the 1.0 limitation is exceeded
16
<PAGE>
because of an Excess Amount, such Excess Amount will be reduced
in accordance with subsection 4.07(a)(4) of the Plan.
[ ] The amount of Annual Additions allocated to any Participant's
Accounts under this Plan shall be limited to the Maximum
Permissible Amount, and Excess Amounts wi11 be properly
reduced, as follows:
________________________________________________________
________________________________________________________
________________________________________________________
________________________________________________________
[X] This situation is not applicable.
Item 22 Service with Predecessor Employer.
- ------------------------------------------
Employment with the following predecessor employer(s) shall be
considered Service with the Employer for all purposes of the Plan
(note: If the Employer is maintaining a tax-qualified plan of a
predecessor employer, that predecessor employer must be listed; place
an asterisk (*) after the name of any such predecessor employer):
[X] There are no such predecessor employers.
[ ] ________________________________________________________
________________________________________________________
________________________________________________________
Item 23 Controlled Groups.
- --------------------------
The following employers are members of a Controlled Group:
[X] (a) There are no such employers.
[ ] (b) ____________________________________________________
____________________________________________________
____________________________________________________
Item 24 Other Adopting Employers.
- ---------------------------------
The following adopting Employers are affiliates of the Employer which, pursuant
to Section 4.08 of the Plan, have adopted the Plan and for which a single Trust
Fund may be used for the investment of the Trust Fund:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
17
<PAGE>
Each such adopting Employer which is a member of a Controlled Group [ ]
shall [ ] shall not be considered to be a separate Employer for purposes of
allocating Employer contributions and Forfeitures.
Item 25 Compensation of Trustee or Custodian.
- ---------------------------------------------
The Employer agrees to pay and/or reimburse the Trustee and the Custodian,
if any, for expenses on the basis set out in the Plan, provided the Trustee
is not a full-time Employee of the Employer, and to pay the Trustee and the
Custodian an annual fee according to its schedule of fees. Trustee's and
Custodian's annual compensation shall be charged to the Trust Fund, unless
paid or reimbursed by the Employer.
Item 26 Appointment of Trustee or Custodian.
- --------------------------------------------
The Trustee or Custodian, by execution of this Adoption Agreement, accepts
its appointment as Trustee or Custodian, respectively, under the aforesaid
Plan.
Item 27 Coordination of Plan Administrator and Trustee or Custodian.
- --------------------------------------------------------------------
At the commencement of this Plan and at the end of each Plan Year
thereafter, the Plan Administrator appointed by the Employer shall deliver
to the Trustee or Custodian such information as the Trustee or Custodian
may require for the proper installation and administration of the Plan.
Item 28 Amendment by Employer.
- ------------------------------
The elective features of this Adoption Agreement may be amended by the
Employer as provided In Article 11 of the Plan, but all authority to amend
the portions of the Plan which constitute a prototype plan approved by the
Internal Revenue Service under Revenue Procedure 84-23 is specifically
delegated irrevocably to the Sponsor, subject to the provisions of Article
11 of the Plan.
18
<PAGE>
IN WITNESS WHEREOF, the following parties hereto have caused this
Adoption Agreement to be executed this the 28th day of April , 1986.
Equitable Securities Corporation
--------------------------------
EMPLOYER
By: /s/ W.H. Cammack
-----------------------------
Title: President
--------------------------
________________________________
Adopting Employer
By:_____________________________
Title:__________________________
________________________________
Adopting Employer
By:_____________________________
Title:__________________________
First American Trust Company, N.A.
----------------------------------
Trustee
By: /s/ Janie Greenwood Harris
-------------------------------
Title: Assistant Vice President
----------------------------
__________________________________
Custodian
(only if Bank named Custodian)
By:_______________________________
Title:____________________________
NOTICE TO ADOPTING EMPLOYER(S)
An Employer may not rely on the opinion letter issued by the National
Office of the Internal Revenue Service as evidence that this Plan is qualified
under Section 401 of the Code. In order to obtain reliance with respect to Plan
qualification, the Employer must apply to the appropriate Key District Office of
the Internal Revenue Service for a determination letter pursuant to Revenue
Procedure 84-23.
This Adoption Agreement may be used only in conjunction with First
American Corporation Defined Contribution Basic Plan Document #01.
19
<PAGE>
[LOGO] FIRST First American National Bank
AMERICAN Nashville, Tennessee 37237
July 30, 1980
Mr. Floyd Lee, Sr.
Equitable Securities Corporation
First American Center
Nashville, Tennessee 37238
Re: Equitable Securities Corporation Profit Sharing Plan
Dear Floyd:
We have enclosed a copy of the First Amendment to the First American National
Bank of Nashville Master Corporate Profit Sharing Plan and Trust which was
effective January 1, 1978 and was approved by the Internal Revenue Service on
May 1, 1980. Also enclosed is a copy of the IRS approval letter. Both documents
should be placed with your Joinder Agreement and Master Plan currently in
effect.
With the exception of Section (4), all the changes to the plan are minor
technical amendments necessary to comply with the final regulations under the
law. Section (4) adds language to the plan which would allow a participant to
borrow from the plan up to the amount of his vested interest. The loan would
have to be approved by the Profit Sharing Committee and be in accordance with
guidelines set by the committee for all loans. In addition, the loan would be a
general asset of the trust and interest received by the plan would be
distributed each year to all participants sharing in the allocation for that
year.
Should you have any questions about these changes to the plan, please feel free
to contact me.
Yours very truly,
/s/ J. Richard Johnson
- ----------------------
J. Richard Johnson
Trust Officer
JRJ/mw
Enclosures
FirstAmtennBankgroup
<PAGE>
FIRST AMENDMENT
TO THE
FIRST AMERICAN NATIONAL BANK OF NASHVILLE
MASTER CORPORATE PROFIT SHARING PLAN AND TRUST
The First American National Bank of Nashville Master Corporate Profit Sharing
Plan and Trust is hereby amended, effective January 1, 1978, as follows:
(1) Article 1, Section 1.23, entitled "Service", is amended by deleting the
third, fourth and fifth paragraphs thereof and substituting the following
language:
"Hour of Service, for purposes of the Plan, shall mean each hour for
which an employee is paid, or entitled to payment:
(a) for the performance of duties for the Employer during the applicable
computation period, or
(b) by the Employer on account of a period of time during which no
duties are performed; provided,
(i) no more than five hundred one (501) Hours of Service shall be
credited during any such single continuous period, and
(ii) Hours of Service shall not be credited for payments made solely
to comply with workmen's or unemployment compensation or
disability insurance laws or as reimbursement for medical
expenses.
Hours of Service shall also include hours for which back pay,
irrespective of mitigation of damages, has been either awarded or agreed to by
the employer. These hours shall be credited to the Employee for the computation
period to which the award or agreement pertains rather than the computation
period in which the award, agreement or payment is made. Hours shall not be
credited under both this and the preceding paragraph of this Section 1.23.
The rules set forth in paragraphs (b) and (c) of Department of Labor
regulations 2530.200b-2 are incorporated herein by reference."
(2) Article 1, Section 1.28, entitled "Vesting Service", is amended by deleting
the second paragraph thereof.
<PAGE>
(3) Article 7, Section 7.05, entitled "Limitations on Vesting Service", is
amended by adding as the final paragraph the following language:
"Provided, however, if Item 12(d) in the Joinder Agreement is selected
by an Employer, a Participant shall be conclusively deemed to have made the
required contributions during any period in which he made any required
contributions to the Plan."
(4) There is added to Article 8 a new Section 8.06 as follows:
"Section 8.06 Loans to Participants. After receiving a Participant's
application and according to a uniform nondiscriminatory policy, the Committee
may direct the Trustee to make a loan or loans to a Participant. All loans shall
bear interest at a rate at least equal to the prevailing interest rate then
being charged for similar loans at First American National Bank of Nashville,
Tennessee.
The amount of the loan shall not exceed a Participant's Employer
Account, shall be repaid in a specified period of time, shall be evidenced by a
note and shall be secured by adequate collateral if the loan exceeds the
Participant's vested interest in his Employer Account.
The collateral for the loan shall include at least the assignment of the
Participant's entire right, title and interest and to the Trust Fund and other
property, if necessary, to adequately secure the loan. By accepting the loan the
Participant automatically assigns as security for the loan all of his rights,
title and interest in and to the Trust Fund."
(5) For Employers electing initially to participate in the Master Plan on and
after July 1, 1979, Item nineteen (19) of each Joinder agreement is hereby
amended by deleting the phrase, "as a common law employee", in each Item.
Employers initially participating in the Master Plan prior to July 1,
1979, may elect to change the provisions of Item nineteen, as described above,
by executing new Joinder Agreements incorporating the changes.
IN WITNESS WHEREOF, this First Amendment to the First American National
Bank of Nashville Master Corporate Profit Sharing Plan and Trust is hereby
executed by its duly authorized officer on this day of , 1979.
FIRST AMERICAN NATIONAL BANK OF NASHVILLE
By:
-----------------------------
Attest: (Signature Illegible)
---------------------------
(Title Illegible)
<PAGE>
FIRST AMERICAN NATIONAL BANK OF NASHVILLE
MASTER CORPORATE PROFIT SHARING PLAN AND TRUST
JOINDER AGREEMENT
The undersigned Employer hereby adopts the First American National Bank
of Nashville Master Corporate Profit Sharing Plan and Trust (herein also
referred to as the "Master Plan and Trust"). First American National Bank of
Nashville, as Trustee, hereby accepts this adoption of the Master Plan and Trust
and agrees to manage the assets thereof. The terms of the Employer's profit
sharing plan are set forth in the Master Plan and Trust with such variations as
are provided in this Joinder Agreement.
Plan Name: Equitable Securities Corporation Profit Sharing Plan and Trust
1. The Employer hereby
[X] (a) establishes the Plan named above,
[ ] (b) amends, restates, and continues the Plan named above, which was
previously established, effective __________________________, by
adoption of the FIRST AMERICAN NATIONAL BANK OF NASHVILLE MASTER
CORPORATE PROFIT SHARING PLAN AND TRUST as executed on August 21,
1970 and amended on February 28, 1973 or by adoption of the Master
Plan and Trust.
[ ] (c) amends, restates and continues the Plan named above, which was
originally effective on ________________________________,
by adoption of the FIRST AMERICAN NATIONAL BANK OF NASHVILLE MASTER
CORPORATE PROFIT SHARING PLAN AND TRUST as amended and restated on
December 12, 1977.
2. The Effective Date of this adoption of the Master Plan and Trust is July 1,
1975, which, except under unusual circumstances, is the first day of a Plan
Year.
3. The Employer furnishes the following information:
Name Equitable Securities Corporation
-------------------------------------------------------------------------
Business Address First American Center
-------------------------------------------------------------
Nashville, Tennessee 37238
-----------------------------------------------------------------------------
Nature and Principal Location(s) of Business Investment Banking
---------------------------------
Nashville; Tennessee
-----------------------------------------------------------------------------
<PAGE>
Employer's Federal Tax Identification Number 62-0871146
---------------------------------
Employer's Fiscal Year Ends June 30
--------------------------------------------------
Employer's Books of Account are kept on a [ ] cash [X] accrual basis.
Employer contributes to the following additional pension or profit sharing
plans: None
-----------------------------------------------------------------------
-----------------------------------------------------------------------------
(Changes to the information material in this Item 3 may be reported by the
Employer to the Trustee in writing without executing an amended Joinder
Agreement.)
4. The Plan administrator shall be
[X] The Employer, Attn: Floyd E. Lee, Sr.,
Telephone Number (615) 244-9420
[ ] Other (specify):
5. The following class(es) of persons employed by the Employer shall not be
considered Employees for purposes of the Plan:
[X] (a) No exclusions.
[ ] (b) Employees covered by a collective bargaining agreement, except as
otherwise provided in the collective bargaining agreement.
[ ] (c) Others (specify):
6. Employees shall become eligible to participate in the Plan according to the
following schedule:
[ ] (a) On the Anniversary Date coincident with or immediately following the
date the Employee's Service begins.
[ ] (b) On the Anniversary Date coincident with or immediately following
completion of _____ (not more than 1/2) Year of Service and
attainment of age _____ (not more than 24 1/2) years; provided,
however, that if the Employee shall first complete the required
period of Service during a Year of Service after the Year of Service
during which he attains the required age, he shall become eligible
to participate on the Anniversary Date nearest the date such later
Year of Service ends.
[ ] (c) On the first day of the calendar month immediately following
completion of ____ (not more than 1) Year of Service and attainment
of age ____ (not more than 25) years.
2
<PAGE>
[X] (d) On the Anniversary Date or the 1st day of January (6 months after
the Anniversary Date), whichever comes first, coincident with or
immediately following completion of 1 (not more than 1) Year of
Service and attainment of age 22 (not more than 25) years.
[ ] (e) On the Anniversary Date or the _____day of _______________ (6 months
after the Anniversary Date), whichever comes first, coincident with
or immediately following completion of __________________ (not more
than 3) Years of Service and attainment of age ___________ (not more
than 25) years.
Each Employee who has satisfied the above age and service requirements
as of the Effective Date shall become a Participant on the Effective
Date. If (b) or (c) in Item 1 above has been checked, no Employee who
has been a Participant under the predecessor plan and who is otherwise
eligible to participate in this Plan shall be excluded from
participation because of failure to satisfy the age and Service
requirements in this Item 6.
Note: All officers, shareholders and highly compensated Employees
covered by the Plan must meet, as of the Effective Date, the eligibility
requirements established above for future Employees.
7. At the commencement of the Plan and at the end of each Plan Year
thereafter, the Profit Sharing Committee appointed by the Employer shall
deliver to the Trustee such information as the Trustee may require for
the proper installation and administration of the Plan.
8. The elective features of this Joinder Agreement may be amended by the
Employer as provided in Article 10 of the Master Plan and Trust, but all
authority to amend the Master Plan and Trust is specifically delegated
irrevocably to the Trustee, subject to the provisions of Article 10 of
the Master Plan and Trust.
9. The Normal Retirement Date of a Participant shall be the first day of
the calendar month coincident with or immediately following:
[X] (a) the 65th (not less than fifty-fifth nor more than sixty-fifth)
birthday of the Participant.
[ ] (b) the (not less than fifty-fifth nor more than sixty-fifth)
birthday of the Participant and completion of (not more than 10)
years from his initial date of participation in the Plan, but not
later than age seventy (70) years.
10. The Employer agrees to pay and/or reimburse the Trustee for expenses on
the basis set forth in the Master Plan and Trust, and to pay the Trustee
an annual fee according to its regular schedule of fees. Trustee's
annual fees will be charged to the Trust Fund and, at the option of the
Employer, may be reimbursed by the Employer to the Trust Fund.
3
<PAGE>
11. A Participant's Employer Account shall be vested in him according to the
following schedule of vested percentages:
Full Years of
Vesting Service [ ] (a) [ ] (b) [ ] (c) [ ] (d) [ ] (e) [X] (f)
Less than 1 100% 0% 0% 0% 0% 0%
1 100 10 0 0 0 0
2 100 20 0 0 0 0
3 100 30 0 0 0 0
4 100 40 0 0 40 40
5 100 50 25 0 45 50
6 100 60 30 0 50 60
7 100 70 35 0 60 70
8 100 80 40 0 70 80
9 100 90 45 0 80 90
10 100 100 50 100 90 100
11 100 100 60 100 100 100
12 100 100 70 100 100 100
13 100 100 80 100 100 100
14 100 100 90 100 100 100
15 or more 100 100 100 100 100 100
Provided, however, that the vested percentage shall be 100% for a
Participant who has attained age sixty-five (65) years.
No schedule shall be elected under option (f) which is not at least as
favorable at each duration as either option (c), applied uniformly, or
option (d), applied uniformly.
If this is a successor plan, no Participant as of the Effective Date
shall at any time have a lower nonforfeitable percentage because of the
adoption of this Plan than he had under the predecessor plan immediately
prior to adoption of this Plan.
If (e) in Item 6 above has been checked, the schedule in (a) must be
checked in this Item 11.
12. In determining a Participant's years of Vesting Service, the following
periods of Service shall be excluded, in addition to the limitations in
Section 7.05 of the Plan:
[ ] (a) No exclusions.
[ ] (b) Service prior to the Plan Year during which the Participant attains
age (not more than 22) years.
[X] (c) Service during any period for which the Employer did not maintain
the Plan or a predecessor plan.
[ ] (d) Service during any period for which the Employee declined to
contribute to the Plan, if Participant contributions were required
to participate in the Plan for such period.
4
<PAGE>
[ ] (e) If (b) or (c) in Item 1 above has been checked, Service before the
first Plan Year to which the provisions of Section 411 of the Code
apply to the Plan, if such Service would have been disregarded under
the rules of the Plan or predecessor plan concerning disruptions in
Service in effect before such Plan Year.
13. Participant contributions described in Article 3, Section 3.03 of the
Plan shall be required or permitted on the following basis:
[ ] (a) Voluntary contributions shall not be allowed.
[X] (b) Voluntary contributions shall be allowed.
[X] (c) Mandatory contributions to participate in the Plan shall not be
required.
[ ] (d) Mandatory contributions to participate in the Plan shall be required
in the amount of _____% (not more than 6%) of the Participant's
Compensation for each Plan Year.
14. Rollover contributions to the Plan from individual retirement accounts
and other qualified plans, subject to the provisions of Article 3,
Section 3.03:
[ ] (a) Shall not be allowed.
[X] (b) Shall be allowed.
15. Withdrawals from Employee Accounts attributable to Participant voluntary
contributions shall be allowed only:
[ ] (a) Upon request by the Participant and consent of the Profit Sharing
Committee.
[X] (b) Upon determination by the Profit Sharing Committee that financial
hardship exists for the Participant.
[ ] (c) Upon termination of the Participant's Service with the Employer.
16. Compensation for a Participant shall be defined as total cash
compensation, including commission, overtime and bonus pay.
For purposes of the allocations under the Plan, Compensation shall
include:
[ ] Compensation for the entire Plan Year.
[X] Only Compensation for the portion of the Plan Year during which an
Employee was a Participant.
[X] Compensation for a Participant during any Plan Year, for purposes of the
Plan, shall be limited to The compensation of the highest salaried
participant.
5
<PAGE>
17. Allocation of Employer contributions and account Forfeitures under
Article 4 of the Master Plan and Trust, shall be on the basis of the
following method:
First, to the Employer Account of each Participant entitled to share
in the allocation an amount equal to 7 %(not more than 7%) of the
Participant's Compensation for the Plan Year in excess of
[X] the Taxable Wage Base in effect at the beginning of the Plan
Year;
[ ] $__________ (not to exceed the Taxable Wage Base in effect at
the Effective Date; or, if in excess of such Taxable Wage Base,
the 7% limitation shall be reduced by a fraction, the numerator
of which is such Taxable Wage Base and the denominator of which
is the dollar amount selected).
Second, the remaining balance, if any, of the Employer contribution
and account Forfeitures shall be allocated to each Participant's
Employer Account in the proportion that each Participant's
Compensation for the Plan Year bears to the total Compensation for
the Plan Year of all Participants entitled to share in the
allocation.
If the total amount of the Employer contribution and account
Forfeitures is insufficient to complete the first phase of the
allocation described above, such total amount shall be allocated in
proportion to the amount of each Participant's Compensation for the
Plan Year in excess of the Taxable Wage Base or dollar amount, as
elected above.
If the Employer has elected to be taxed as a small business corporation
under Section 1372(a) of the Code, then Employer contributions and the
allocation of Employer contributions and account Forfeitures shall be
further governed by Article 4, Section 4.06 of the Master Plan and
Trust.
18. For purposes of allocation of Employer contributions and account
Forfeitures under the Plan, Participants who complete 1,OOO hours of
Service during a Plan Year but who are no longer in Service on the
Valuation Date shall be:
[X] included.
[ ] excluded.
Note: Exclusion of such persons, under certain circumstances, may
jeopardize the continued qualification of the Plan.
19. In determining a Participant's Service for purposes of the Plan, his
employment as a common-law employee with any predecessor
6
<PAGE>
employers or employers which are members of a controlled group of
corporations, as defined in Section 1563(a) of the Code, or members of a
group of trades or businesses (whether or not incorporated) under common
control with the Employer shall be considered Service with the Employer;
the following employers are such employers on the Effective Date: None
------
------------------------------------------------------------------------
------------------------------------------------------------------------
20. The following employers are affiliates of the Employer which have
separately adopted the Master Plan and Trust and for which a single
Trust Fund may be used for the investment of the Trust Fund and the
funds of such separate plans: None
------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
21. For purposes of this Item 21, "other plan" means either (1) a qualified
defined contribution plan other than a master or prototype plan, or (2)
a qualified defined benefit plan. If the Employer maintains such a plan,
failure to complete this Item may adversely affect the qualification of
all the plans maintained by the Employer. If the Employer does not
complete this Item, the provisions of subsection 4.04(b) of the Master
Plan and Trust will automatically apply to this Plan.
[X] The Employer does not maintain any "other plan."
[ ] The Employer maintains an "other plan," and the amount of annual
addition allocated to any Participant's accounts under this Plan
shall be limited as follows:
----------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
22. If the Employer takes no other specific action, as described in Article
3, Section 3.01, to determine an Employer contribution to the Plan prior
to the end of any Plan Year:
[X] (a) No Employer contribution shall be made for such Plan Year.
[ ] (b) An Employer contribution equal to ______% (not to exceed 15%) of
the total Compensation for the Plan Year of all Participants,
but not to exceed ______% of the current Net Profits of the
Employer for the Plan Year (excluding gains and losses from the
sale of capital assets), shall be made for the Plan Year.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Joinder
Agreement to be executed this 17th day of OCTOBER, 1978.
Equitable Securities Corporation
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EMPLOYER
By /s/ W.H. Cammack, Pres.
--------------------------------
FIRST AMERICAN NATIONAL BANK OF NASHVILLE
By /s/ (Signature Illegible)
--------------------------------
Trust Officer
ATTEST: /s/ (Signature Illegible)
--------------------------
Trust Officer
8
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EQUITABLE SECURITIES CORPORATION
PROTOTYPE DEFINED CONTRIBUTION PLAN AND TRUST
Equitable Securities Corporation
Defined Contribution Basic Plan Document #01
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TABLE OF CONTENTS
ARTICLE PAGE
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1 DEFINITIONS 1-1
2 ELIGIBLE EMPLOYEES AND PARTICIPANTS 2-1
3 CONTRIBUTIONS TO THE PLAN 3-1
4 ALLOCATION OF TRUST FUNDS AND PARTICIPANTS'
ACCOUNTS 4-1
5 WITHDRAWALS AND LOANS 5-1
6 RETIREMENT BENEFITS 6-1
7 DEATH AND DISABILITY BENEFITS 7-1
8 BENEFITS UPON SEPARATION FROM SERVICE 8-1
9 PLAN ADMINISTRATION 9-1
l0 THE TRUSTEE l0-1
11 AMENDMENT AND TERMINATION OF THE PLAN 11-1
12 GENERAL PROVISIONS AFFECTING THE EMPLOYER 12-1
13 TOP HEAVY PLANS 13-l
14 PAIRED PLANS 14-1
15 MISCELLANEOUS PROVISIONS 15-1
<PAGE>
EQUITABLE SECURITIES CORPORATION
PROTOTYPE DEFINED CONTRIBUTION PLAN AND TRUST
Equitable Securities Corporation, in order to assist Employers in
adopting a defined contribution plan and trust which is qualified, respectively,
under Section 401(a) and Section 501(a) of the Code and designed in compliance
with the Tax Reform Act of 1986, Omnibus Budget Reconciliation Act of 1986,
Omnibus Budget Reconciliation Act of 1987, the Technical and Miscellaneous
Revenue Act of 1988, final regulations under the Retirement Equity Act of 1984,
and final regulations under Code sections 401(a), 401(k), and 411(d)(6), hereby
establishes a prototype defined contribution plan and trust to be known as the
EQUITABLE SECURITIES CORPORATION PROTOTYPE DEFINED CONTRIBUTION PLAN AND TRUST.
An Employer may adopt this prototype plan document as part of its Plan
by completing and signing an Adoption Agreement. However, such adoption shall
not be effective until also executed by the Trustee and, if applicable, the
custodian of the Plan's assets.
<PAGE>
ARTICLE 1
DEFINITIONS
The following terms when capitalized and used herein and in the Adoption
Agreements, unless the context clearly indicates otherwise, shall have the
meanings set forth hereinafter:
Section 1.01 "Accounts" shall mean all of the recordkeeping accounts to
which are allocated or credited a Participant's share of (i) contributions made
to the Plan, (ii) Forfeitures, and (iii) Income.
Section 1.02 "Adopting Employer" shall mean any person, business
organization or corporation affiliated with the Employer through complete or
partial ownership by the Employer or which is otherwise cooperating with the
Employer for purposes of establishing and maintaining a qualified plan, which
is authorized by the Employer to adopt the Plan, and which adopts the Plan by
executing the Adoption Agreement.
The term shall also include any person, business organization or
corporation into which the Adopting Employer may be merged or consolidated or by
which it may be succeeded.
Section 1.03 "Adoption Agreement" shall mean the instrument by which the
Employer elects to establish or continue its Plan by adoption of this prototype
plan document.
Section 1.04 "Anniversary Date" shall mean the day upon which a Plan
Year begins.
Section 1.05 "Annuity Starting Date" shall mean the first day of the
first period for which an amount is paid as an annuity or any other form.
Section 1.06 "Average Compensation" shall mean, with respect to a target
benefit pension plan, the average compensation set forth in Item 7 of the
Adoption Agreement. If pursuant to the election in Item 12 of the Adoption
Agreement a Participant is entitled to have an Employer Contribution made on his
behalf for the Plan Year of termination of Service, then for purposes of
determining Average Compensation, if the Participant's Compensation for the Plan
Year of termination is based on a period of less than twelve (12) months, such
Compensation shall be annualized.
Section 1.07 "Beneficiary" shall mean such person, persons or legal
entity as may be designated by a Participant to receive benefits hereunder after
his death, or the person, persons or legal entity designated to the Trustee to
receive benefits after the death of the Participant, or the personal or legal
representative of the Participant, all as herein described and provided.
Section 1.08 "Break in Service" shall mean (i) the period defined in
subsection (a) hereof for Plans which count Hours of Service
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pursuant to Item 6 of the Adoption Agreement and (ii) the period defined in
subsection (b) hereof for Plans which use the "elapsed time" method pursuant to
Item 6 of the Adoption Agreement.
(a) Hours Counting Method. A "Break in Service" shall mean a twelve (12)
consecutive month period during which an Employee does not complete
more than five hundred (500) Hours of Service. For purposes of
determining eligibility, the initial twelve (12) month period shall
commence on the date the Employee first performs an Hour of Service,
and each subsequent twelve (12) month period shall be the Plan Year,
beginning with the Plan Year which commences prior to the end of the
initial twelve (12) month period. For purposes of computing a
Participant's nonforfeitable right to his accrued benefit, the twelve
(12) month period shall be the Plan Year. For purposes of this section
only, "Hours of Service" shall include Leaves of Absence in addition to
the Hours of Service specified in Section 1.31 hereof.
For Plan Years beginning after December 31, 1984, for purposes of
determining whether a Break in Service has occurred, Hours of Service
shall include any period in which an Employee is absent from work for
maternity or paternity reasons.
Hours of Service shall be credited for such maternity or paternity
absence from work as would normally have been credited to such
individual but for such absence or, if the Plan Administrator is unable
to determine the Hours of Service actually to be so credited, then
eight (8) Hours of Service per day shall be credited for such absence;
provided, however, that the total number of Hours of Service to be
credited by reason of any such absence for maternity or paternity
reasons shall not exceed five hundred and one (501) Hours of Service
during the computation period used to determine a Break in Service.
Such Hours of Service shall be credited in the computation period used
to determine a Break in Service in which the absence from work begins
if an Employee would be prevented from incurring a Break in Service in
such Plan Year because the period of absence is treated as Hours of
Service and, in any other case, in the immediately following
computation period.
(b) Elapsed Time Method. A "Break in Service" shall mean a "period of
severance" of at least twelve (12) consecutive months. A "period of
severance" is a continuous period of time during which the Employee is
not employed by the Employer. Such period begins on the date the
Employee retires, quits or is discharged, or if earlier, the twelve
(12) month anniversary of the date on which the Employee was otherwise
first absent from Service.
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For Plan Years beginning after December 31, 1984, in the case of an
individual who is absent from work for maternity or paternity reasons,
the twelve (12)-consecutive month period beginning on the first
anniversary of the first date of such absence shall not constitute a
Break in Service.
(c) For purposes of this section, an absence from work for maternity or
paternity reasons means an absence
(1) by reason of the pregnancy of the individual,
(2) by reason of the birth of a child of the individual,
(3) by reason of the placement of a child with the individual in
connection with the adoption of such child by such individual, or
(4) for purposes of caring for such child for a period beginning
immediately following such birth or placement.
No credit for Hours of Service for absence for maternity or paternity
reasons, however, shall be given hereunder unless an Employee furnishes
to the Plan Administrator such timely information as the Plan
Administrator may reasonably require to establish that the absence from
work is for a reason set forth in (1) through (4).
Section 1.09 "Code" shall mean the Internal Revenue Code of 1986, as
amended.
Section 1.10 "Committee" shall mean the committee, if any, appointed
under the provisions of Article 9 to carry out the day to day administrative
functions of the Plan.
Section 1.11 "Compensation" shall mean a Participant's compensation as
determined pursuant to subsection (a) or subsection (b) hereof, whichever is
applicable, and subsection (c) hereof.
(a) The definition of "Compensation" in this subsection (a) shall apply for
periods commencing before the first day of the Plan Year commencing
after the Plan Year in which the Employer adopts the Adoption Agreement
incorporating the changes required by the Tax Reform Act of 1986. This
definition shall apply wherever it is used in this Plan, except as
provided in Sections 4.07 and 13.02(a) hereof. "Compensation" shall
mean a Participant's compensation actually paid or accrued (as
indicated in the Plan prior to the Adoption Agreement incorporating the
changes required by the Tax Reform Act of 1986) within a Plan Year that
is subject to tax under Section 3101(a) of the Code without the dollar
limitation of Section 3121(a)(1) thereof, as defined and restricted
with respect only to nonstandardized plans in Item 7 of the Adoption
Agreement. Provided, however, (subject to the preceding limitations)
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with respect to a Self-Employed Individual, Compensation as used in the
Plan shall mean Earned Income. Provided further, however, the term
"Compensation" shall for all purposes, other than determining the
Average Deferral Percentage of Section 3.05 and the Average
Contribution Percentage of Section 3.06, include contributions made to
an employee benefit plan under Section 401(k), Section 403(b) or
Section 125 of the Code, but shall not include any other tax-deferred
or tax-exempt compensation.
(b) The definition of "Compensation" in this subsection (b) shall apply
for periods commencing on or after the first day of the Plan Year
commencing after the Plan Year in which the Employer adopts the
Adoption Agreement incorporating the changes required by the Tax Reform
Act of 1986. This definition shall apply wherever it is used in this
Plan, except as provided in Section 4.07 and 13.02(a) hereof. As
elected by the Employer in Item 7 of the Adoption Agreement,
"Compensation" shall mean each Participant's (i) W-2 earnings or (ii)
compensation as that term is defined in Section 4.07(e)(2) hereof and,
with respect only to non-standarized plans, as further' restricted in
Item 7 of the Adoption Agreement. Provided, however, (subject to the
preceding limitations) with respect to a Self Employed Individual,
Compensation shall mean Earned Income. Compensation pursuant to this
subsection (b) shall include only that compensation which is actually
paid to the Participant during the applicable period. Except as
provided elsewhere in the Plan, the applicable period shall be the
period elected by the Employer in Item 7 of the Adoption Agreement. If
the Employer makes no election, the applicable period shall be the Plan
Year.
Notwithstanding the above, if elected by the Employer in Item 7 of the
Adoption Agreement, Compensation shall for all purposes, other than
determining the Average Deferra1 Percentage of Section 3.05 and the
Average Contribution Percentage of Section 3.06, include any amount
which is contributed by the Employer with respect to the applicable
period pursuant to a salary reduction agreement and which is not
includible in the gross income of the Employee under Section 125
(dealing with cafeteria plans), 402(a)(8) (dealing with elective
deferrals under 401(k) plans), 402(h) (dealing with simplified employee
pensions) or 403(b) (dealing with tax sheltered annuities) of the Code.
(c) For Plan Years beginning on or after January 1, 1989, the annual
compensation of each Participant taken into account under the Plan for
any year shall not exceed $200,000, as adjusted by the Secretary at the
same time and in the same manner as under Section 415(d) of the Code.
In determining the compensation of a Participant for purposes of this
limitation, the rules of Section 414(q)(6) of the Code shall apply,
except in applying such rules, the term
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"family" shall include only the Spouse of the Participant and any
lineal descendants of the Participant who have not attained age
nineteen (19) before the close of the year. If, as a result of the
application of such rules the adjusted $200,000 limitation is exceeded,
then (except for purposes of determining the portion of Compensation up
to the integration break-point if this Plan provides for permitted
disparity), the limitation shall be prorated among the affected
individuals in proportion to each such individual's Compensation as
determined under this section prior to the application of this
limitation. The application of this subsection (c) shall be subject to
such rules as may be prescribed by the Secretary of the Treasury.
Section 1.12 "Controlled Group" shall mean, with respect to the
Employer, a controlled group of corporations (as defined in Code Section
414(b)), a group of trades or businesses under common control (as defined in
Code Section 414(c)), an affiliated service group (as defined in Code Section
414(m)), and any other entity required to be aggregated with the Employer
pursuant to Code Section 414(o) and the regulations thereunder. All employees of
members of a Controlled Group shall be treated as employed by a single employer
for purposes of Sections 401, 410, 411, 415 and 416 of the Code.
Section 1.13 "Covered Compensation" shall mean, for a Plan Year, the
average (without indexing) of the contribution and benefit bases in effect under
Section 230 of the Social Security Act for each calendar year in the thirty-five
(35) year period ending with the last day of the calendar year in which the
employee attains (or will attain) the Social Security Retirement Age. The
determination of Covered Compensation for any year preceding the year in which
the Employee attains the Social Security Retirement Age shall be made by
assuming that there is no increase in the bases described in Section 230 of the
Social Security Act after the determination year and before the Social Security
Retirement Age. A Participant's Covered Compensation for a Plan Year before the
thirty-five (35) year period ending with the last day of the calendar year in
which the Participant attains his Social Security Retirement Age is the
contribution and benefit base in effect under section 230 of the Social Security
Act at the beginning of the Plan Year. A Participant's Covered Compensation for
a Plan Year after such thirty-five (35) year period is the Participant's Covered
Compensation for the Plan Year during which the Participant attained Social
Security Retirement Age.
Section 1.14 "Disability" shall, unless further restricted in Item 18(d)
of the Adoption Agreement, mean total and permanent incapacity of a Participant
to engage in any substantially gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than twelve (12) months. In determining the existence of Disability in
Plan Years commencing before January 1, 1989, the Plan Administrator may require
written certification of disability from a physician of its choosing and/or may
allow receipt of Social Security or any insured disability benefits to be
conclusive evidence of total and permanent disability. In determining the
existence of Disability in Plan Years commencing after December 31, 1988, the
Plan Administrator shall require medical evidence and/or shall allow receipt of
Social Security or any insured disability benefits to be conclusive evidence of
total and permanent disability, pursuant to its election in Item 18(e) of the
Adoption Agreement.
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Section 1.15 "Earned Income" shall mean the net earnings from
self-employment in the trade or business with respect to which the Plan is
established, for which personal services of the individual are a material
income-producing factor. Net earnings shall be determined without regard to
items not included in gross income and the deductions allocable to such items.
Net earnings shall be determined with regard to the deduction allowed to the
Employer by Section 164(f) of the Code for taxable years beginning after
December 31, 1989. Net earnings shall be reduced by contributions by the
Employer to a qualified plan to the extent deductible under Section 404 of the
Code.
Section 1.16 "Effective Date" shall mean the date the Plan was
established by an Employer, as specified in Item l(a) of the executed Adoption
Agreement, provided, however, that the term shall mean, for an Employee of an
Adopting Employer who adopts the Plan later than the date it was originally
established, the effective date of adoption of the Plan by such Employer. The
effective date of the most recent adoption or amendment shall be the date
indicated in Item l(b) of the Adoption Agreement.
Section 1.17 "Elective Deferral Account" shall mean the account
maintained on behalf of a Participant to which shall be credited the
Participant's Elective Deferral Contributions and the Participant's share of the
Income of the Trust Fund allocable to this account.
Section 1.18 "Elective Deferral Contributions" shall mean the
contributions made by an Employer on an Employee's behalf pursuant to Section
3.01(a) hereof.
Section 1.19 "Employee" shall mean either (i) a person (other than an
independent contractor) who is receiving remuneration for personal services
rendered to, or labor performed for, the Employer (or who would be receiving
such remuneration except for a Leave of Absence), or (ii) a Leased Employee
deemed to be an employee of the Employer as provided in Sections 414(n) or (o)
of the Code. In addition, if the Plan is a standardized plan, for purposes of
this section the "Employer" shall include all members of the Controlled Group
(regardless of whether any such employer is treated as operating separate lines
of business under Code section 414(r)); therefore, in the case of a standardized
plan each employer in the Controlled Group shall be required to adopt the Plan.
Section 1.20 "Employee Account" shall mean the account maintained on
behalf of a Participant to which shall be credited the Participant's Employee
Contributions and the Participant's share of the Income of the Trust Fund
allocable to this account.
Section 1.21 "Employee Contributions" shall mean the contributions made
by the Employee pursuant to Section 3.03(a) hereof.
Section 1.22 "Employer" shall mean the entity executing the Adoption
Agreement as the Employer and each of those persons, business organizations or
corporations executing the Plan as an Adopting Employer, together with any
successor to all or a major portion of any said entity's property or business,
provided such successor Employer adopts the Plan by appropriate resolution of
its governing body.
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Section 1.23 "Employer Account" shall mean the account maintained on
behalf of a Participant to which shall be credited the Participant's share of
any Employer Contributions (and Forfeitures, if the Adoption Agreement provides
for the allocation of Forfeitures as an additional Employer Contribution) and
the Participant's share of the Income of the Trust Fund allocable to this
account.
Section 1.24 "Employer Contributions" shall mean contributions made by
an Employer pursuant to Section 3.01(c) hereof.
Section 1.25 "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
Section 1.26 "Excess Compensation" shall mean, for an integrated target
benefit pension plan, the amount of a Participant's Average Compensation in
excess of the level specified in Item 8 of the Adoption Agreement.
Section 1.27 "Family Member" shall mean an individual included in the
family of an Owner-Employee within the meaning of Section 267(c)(4) of the Code.
Section 1.28 "Fiduciary" shall mean the Employer, the Plan Administrator
(and the Committee, if appointed pursuant to Section 9.01 hereof), the
Investment Manager, if any, and the Trustee, but only with respect to the
specific responsibilities for each described herein.
Section 1.29 "Forfeiture" shall mean the portion of a Participant's
Employer Account and Matching Account which is forfeited under Section 5.01 or
8.03 hereof before full vesting occurs.
Section 1.30 "Highly Compensated Employee" shall mean a person who is
either a "highly compensated active employee" as defined in subsection (a)
hereof or a "highly compensated former employee" as defined in subsection (b)
hereof.
(a) A "highly compensated active employee" is any Employee who
performs service for the Employer during the determination year and
who, during the look-back year:
(1) received compensation from the Employer in excess of seventy-five
thousand dollars ($75,000) (as adjusted pursuant to Section
415(d) of the Code);
(2) received compensation from the Employer in excess of fifty thousand
dollars ($50,000) (as adjusted pursuant to Section 415(d) of the
Code) and was a member of the top-paid group for such year; or
(3) was an officer of the Employer and received compensation during
such year that is greater than fifty percent (50%) of the dollar
limitation in effect under Section 415(b)(1)(A) of the Code.
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The term "highly compensated active employee" also includes:
(4) An Employee (i) who is described in the preceding sentence if the
term "determination year" is substituted for the term "look-back
year" and (ii) who is one of the one hundred (100) Employees who
received the most compensation from the Employer during the
determination year; and
(5) An Employee who is a five percent (5%) owner at any time during the
look-back year or the determination year.
If no officer has satisfied the compensation requirement of (3) above
during either a determination year or look-back year, the highest paid
officer for such year shall be treated as a Highly Compensated
Employee.
For this purpose, the determination year shall be the Plan Year. The
look-back year shall be the twelve (12)-month period immediately
preceding the determination year.
(b) A "highly compensated former employee" is any Employee who
separated from service (or was deemed to have separated) prior to the
determination year, performs no service for the Employer during the
determination year, and was a highly compensated active employee for
either the separation year or any determination year ending on or after
the Employee's fifty-fifth (55th) birthday.
If an Employee is, during a determination year or look-back year, a
family member of either a five percent (5%) owner who is an active or former
Employee or a Highly Compensated Employee who is one of the ten (10) most highly
compensated Employees ranked on the basis of compensation paid by the Employer
during such year, then the family member and five percent (5%) owner or top-ten
(10) Highly Compensated Employee shall be treated as a single Employee receiving
compensation and Plan contributions or benefits equal to the sum of such
compensation and contributions or benefits of the family member and five (5%)
percent owner or top-ten (10) Highly Compensated Employee. For purposes of this
section, family member includes the spouse, lineal ascendants and descendants of
the Employee or former Employee and the spouses of such lineal ascendants and
descendants.
The determination of who is a Highly Compensated Employee, including the
determinations of the number and identity of Employees in the top-paid group,
the top one hundred (100) Employees, the number of Employees treated as officers
and the compensation that is considered, will be made in accordance with Section
414(q) of the Code and the regulations thereunder.
Section 1.31 "Hour of Service" shall mean:
(a) each hour for which an Employee is paid, or entitled to payment,
for the performance of duties for the Employer.
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These hours shall be credited to the Employee for the Plan Year in
which the duties are performed; and
(b) each hour for which an Employee is paid, or entitled to payment, by
the Employer on account of a period of time during which no duties are
performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of absence. No
more than five hundred and one (501) Hours of Service shall be credited
under this paragraph for any single continuous period (whether or not
such period occurs in A single Plan Year). Hours under this paragraph
shall be calculated and credited pursuant to Section 2530.200b-2 of the
Department of Labor Regulations, which are incorporated herein by this
reference; and
(c) each hour for which back pay, irrespective of mitigation of
damages, has been either awarded or agreed to by the Employer. These
hours shall be credited to the Employee for the Plan Year to which the
award or agreement pertains rather than the Plan Year in which the
award, agreement or payment is made. Hours shall not be credited under
both this and any of the preceding subsections of this section;
provided, however, that
(d) Hours of Service shall not be credited for payments made solely to
comply with workmen's or unemployment compensation or disability
insurance laws or as reimbursement for medical expenses.
Hours of Service shall be determined on the basis selected in Item 6 of
the Adoption Agreement.
Notwithstanding the foregoing, in the event the Plan uses the "elapsed
time" method pursuant to Item 6 of the Adoption Agreement, an "Hour of Service"
shall mean each hour for which an Employee is paid or entitled to payment for
the performance of duties for the Employer.
If the Employer is maintaining the plan of a predecessor employer, or if
a predecessor employer is either listed in Item 22 of the Adoption Agreement or
designated in writing by the Employer subsequent to the completion of the
Adoption Agreement, service with such predecessor employer shall be treated as
Service with the Employer.
Hours of Service shall be credited for employment with other members of
a Controlled Group of which the Employer is a member. Hours of Service shall
also be credited for any individual considered an Employee for purposes of the
Plan under Section 414(n) of the Code, or Section 414(o) of the Code and the
regulations thereunder.
Section 1.32 "Income" shall mean the net gain or loss of the Trust Fund
from investments, as reflected by interest payments, dividends, realized and
unrealized gains and losses on securities, other investment transactions, and
expenses paid from the Trust Fund which are not
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reimbursed by the Employer. In determining the Income of the Trust Fund for any
period, assets shall be values on the basis of current fair market value.
Section 1.33 "Individual Retirement Account" shall mean a trust within
the meaning of Section 408(a) of the Code or an individual retirement annuity
under Section 408(b) of the Code.
Section 1.34 "Investment Manager" shall mean any Fiduciary, other than
the Trustee, who
(a) has the power to manage, acquire, or dispose of any asset of the
Plan;
(b) (i) is registered as an investment advisor under the Investment
Advisers Act of 1940; (ii) is a bank, as defined in that Act; or
(iii) is an insurance company qualified to perform services described
in subsection (a) under the laws of more than one (1) state; and
(c) has acknowledged in writing that he is a Fiduciary with respect to
the Plan.
Section 1.35 "Leased Employee" shall mean any person (other than a
common law employee of the recipient Employer) who provides services for the
recipient Employer if the following conditions are met:
(a) such services are provided pursuant to an agreement between the
recipient Employer and a leasing organization,
(b) such person has performed services for the recipient Employer (or
the recipient Employer and a "related person" as that term is defined
in Section 414(n)(6) of the Code) on a substantially full-time basis
for a period of at least one (1) year, and
(c) such services are of a type historically performed, in the business
field of the recipient Employer, by employees.
Notwithstanding the foregoing, a Leased Employee shall not be considered
an Employee of the recipient Employer as to services performed after December
31, 1986 if:
(d) such person is covered by a money purchase pension plan providing:
(1) a nonintegrated employer contribution rate of at least ten
percent (10%) of compensation, as defined in Section 415(c)(3)
of the Code, but including amounts contributed pursuant to a
salary reduction agreement which are excludable from the
employee's gross income under a 401(k) plan, a cafeteria plan
pursuant to Code Section 125, a simplified employee pension
(SEP) pursuant to Code section 402(h) or a tax sheltered
annuity pursuant to Code section 403(b) of the Code,
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(2) immediate participation, and
(3) full and immediate vesting; and
(e) Leased Employees do not constitute more than twenty percent
(20%) of the recipient's nonhighly compensated workforce.
For purposes of this Plan, contributions or benefits provided to a
Leased Employee by the leasing organization which are attributable to services
performed for the recipient Employer shall be treated as provided by the
recipient Employer.
Section 1.36 "Leave of Absence" shall mean any unpaid absence authorized
by the Employer under the Employer's standard personnel practices; provided that
all persons under similar circumstances shall be treated alike in the granting
of such Leaves of Absence; and provided, further, that the Participant returns
within the period of authorized absence. An absence due to service in the Armed
Forces of the United States shall be considered a Leave of Absence if the
absence is caused by war or other emergency, or the Employee is required to
serve under the laws of conscription in time of peace; and if, further, the
Employee returns to Service within the period during which his employment rights
are protected by law. Individuals on Leave of Absence shall be treated under the
Plan as if they were Employees according to the terms hereof.
Section 1.37 "Life Insurance Company" shall mean a life insurance
company licensed to do business in a state in which the Employer also does
business.
Section 1.38 "Matching Account" shall mean the account maintained on
behalf of a Participant to which shall be credited the Participant's share of
any Matching Contributions (and Forfeitures, if the Adoption Agreement provides
for the allocation of Forfeitures as an additional Matching Contribution) and
the Participant's share of the Income of the Trust Fund allocable to this
account.
Section 1.39 "Matching Contributions" shall mean the contributions made
by an Employer pursuant to Section 3.01(b) hereof.
Section 1.40 "Net Profits" shall mean current or accumulated earnings of
the Employer before Federal and State taxes and contributions to this and any
other qualified plans.
Section 1.41 "Non-highly Compensated Employee" shall mean an Employee of
the Employer who is neither a Highly Compensated Employee nor a family member
(pursuant to Section 414(q)(6)(B) of the Code).
Section 1.42 "Normal Retirement Age" shall mean the age or date set out
in Item 18(a) of the Adoption Agreement. However, the Normal Retirement Age
shall not exceed any mandatory retirement age imposed by the Employer on
Employees.
Section 1.43 "Normal Retirement Date" shall mean the first day of the
calendar month coincident with or next following the date on which the
Participant attains Normal Retirement Age.
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Section 1.44 "Owner-Employee" shall mean an individual who is a sole
proprietor, or who is a partner owning more than ten percent (10%) of either
the capital or profits interest of the partnership.
Section 1.45 "Paired Plans" shall mean (i) two (2) or more defined
contribution plans adopted by the Employer pursuant to Adoption Agreements #005
through #011 under this prototype plan, the Equitable Securities Corporation
Defined Contribution Basic Plan Document #01, when paired under Article 14
hereof, or (ii) one (1) or more defined contribution plans adopted by the
Employer pursuant to such Adoption Agreements when paired under Article 14
hereof with a defined benefit pension plan adopted by the Employer pursuant to
Adoption Agreements #003 or #004 under the Equitable Securities Corporation
Defined Benefit Basic Plan Document #02. Paired Plans shall be standardized
plans established by the Employer pursuant to Revenue Procedure 89-9.
Section 1.46 "Participant" shall mean an Employee participating in the
Plan in accordance with the provisions of Article 2 hereof.
Section 1.47 "Plan" shall mean the defined contribution plan established
by the Employer, incorporating this prototype plan document, which is Equitable
Securities Corporation Defined Contribution Basic Plan Document #01, the
Adoption Agreement, and all subsequent amendments to either.
Section 1.48 "Plan Administrator" shall mean the Employer or other
entity or entities specified in Item 3 of the Adoption Agreement. For purposes
of this section, the Employer shall mean only the entity executing the Adoption
Agreement as the "Employer," and shall not include any organization executing
the Adoption Agreement as an "Adopting Employer."
Section 1.49 "Plan Year" shall mean the twelve (12) consecutive month
period specified in Item l(c) of the Adoption Agreement, and anniversaries
thereof. In unusual circumstances (such as the recent incorporation of the
Employer, a change of Plan Year or the establishment of the Plan as a successor
to a plan which was based on some period other than the current Plan Year), the
Plan Year may be shorter than twelve (12) months.
Section 1.50 "Policy" shall mean an individual life insurance policy or
annuity contract, or a combination thereof, issued by a Life Insurance Company
in accordance with the provisions of the Plan.
Section 1.51 "Qualified Joint and Survivor Annuity" shall mean an
immediate annuity for the life of the Participant with a survivor annuity for
the life of the Spouse of the Participant, as selected by the Employer in Item
19 of the Adoption Agreement, which is not less than fifty percent (50%) of, nor
greater than, the amount of the annuity payable during the joint lives of the
Participant and the Participant's Spouse and which is the amount of benefit
which can be purchased with the Participant's Vested Account Balance. If no
election is made in Item 19 of the Adoption Agreement, then the percentage of
the survivor annuity under the Plan shall be fifty percent (50%).
Section 1.52 "Qualified Matching Account" shall mean the account
maintained on behalf of a Participant to which shall be credited the
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<PAGE>
Participant's share of any Qualified Matching Contributions and the
Participant's share of the Income of the Trust Fund allocable to this account.
Section 1.53 "Qualified Matching Contributions" shall mean the
contributions made by the Employer pursuant to Section 3.01(e) hereof.
Section 1.54 "Qualified Non-elective Account" shall mean the
account maintained on behalf of a Participant to which shall be credited the
Participant's share of any Qualified Non-elective Contributions and the
Participant's share of the Income of the Trust Fund allocable to the account.
Section 1.55 "Qualified Non-elective Contributions" shall mean the
contributions made by the Employer pursuant to Section 3.01(d) hereof.
Section 1.56 "Qualifying Employer Securities" shall mean employer
securities which are stock or marketable obligations, such as bonds, debentures,
notes or certificates, or other evidence of indebtedness, as defined in Section
407(d)(5) of ERISA.
Section 1.57 "Retired Participant" shall mean a former Participant,
other than a Separated Participant, who has terminated his Service and who is
entitled to receive benefits provided by the Plan.
Section 1.58 "Rollover Account" shall mean the account maintained on
behalf of a Participant to which shall be credited the Participant's Rollover
Contributions and the Participant's share of the Income of the Trust Fund
allocable to the account.
Section 1.59 "Rollover Contributions" shall mean the tax free rollovers
made by a Participant pursuant to Section 3.03(c) hereof.
Section 1.60 "Self-Employed Individual" shall mean an individual who has
Earned Income for the taxable year from the trade or business for which the Plan
is established; also, an individual who would have had Earned Income but for the
fact that the trade or business had no Net Profits for the taxable year.
Section 1.61 "Separated Participant" shall mean a former Participant who
incurs a Break in Service, or whose Service is terminated for reasons other
than death, Disability or retirement.
Section 1.62 "Service" shall mean employment of an Employee by
the Employer, and, unless the "elapsed time method is elected pursuant to Item 6
of the Adoption Agreement, shall be measured in Hours of Service. If the
"elapsed time" method is elected, Service shall be expressed in years and a
decimal fraction of a year based on completed days of Service, and all
non-successive periods of Service (including fractional years) shall be
aggregated. If any period of Service in excess of one (1) Year of Service is
required for eligibility pursuant to Item 5 of the Adoption Agreement, and if an
Employee has a Break in Service before satisfying such Service eligibility
requirement, Service before such Break in Service shall not be taken into
account for purposes of determining eligibility under the Plan.
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<PAGE>
In determining a Participant's Service under the Plan, employment with
any employers listed in Item 22 of the Adoption Agreement, or with any other
employers while such employers are members of a Controlled Group with the
Employer, shall be treated as employment with the Employer. However, this
provision shall not affect (i) the limitation of participation in the Plan to
Employees of the Employer and Adopting Employers and (ii) basing Compensation
only on compensation paid by an Adopting Employer.
Section 1.63 "Sponsor" shall mean the sponsor of this prototype.
Section 1.64 "Spouse" shall mean the person who is legally married to a
Participant or, if the Participant has been credited with at least one (1) Hour
of Service under the Plan on or after August 23, 1984, a former spouse of the
Participant if and to the extent such former spouse is to be treated as a spouse
or surviving spouse under a qualified domestic relations order described in
Section 414(p) of the Code.
Section 1.65 "Target Annual Retirement Benefit" shall mean, for a
Participant in a target benefit pension plan, an annuity commencing at his
Normal Retirement Age, and payable monthly on the first day of each month
thereafter during the lifetime of the Participant, in an amount equal to the
benefit established in Item 8 of the Adoption Agreement, which contributions to
the Plan are actuarially determined to provide if a Participant remains in
Service until the annuity commencement date.
Anything in the Plan to the contrary notwithstanding, no Participant
shall be entitled, merely because of the foregoing, to receive an annuity equal
to his Target Annual Retirement Benefit. The purpose of the Target Annual
Retirement Benefit is solely to determine the amount of Employer contribution to
be made to the Employer Account of each Participant; the actual retirement
benefit for any Participant shall be that which can be provided from the amount
of his Employer Account.
Until such time as the Target Annual Retirement Benefit becomes
definitely determinable, an estimated Target Annual Retirement Benefit may be
used in lieu of the Target Annual Retirement Benefit for all purposes under the
Plan. The estimated Target Annual Retirement Benefit shall be the amount which
the Participant's Target Annual Retirement Benefit would be if such
Participant's Compensation for each Plan Year subsequent to the date of the
estimation, ending with the Plan Year during which the Participant would attain
Normal Retirement Age, were the same as the Participant's Compensation for the
Plan Year immediately preceding (or, if the date of the estimation is the last
day of a Plan Year, ending on) the date of the estimation.
Section 1.66 "Taxable Wage Base" shall mean at any time the maximum
amount of earnings which may be considered wages at such time under Section
3121(a)(1) of the Code.
Section 1.67 "TEFRA" shall mean the Tax Equity and Fiscal Responsibility
Act of 1982, as amended.
1-14
<PAGE>
Section 1.68 Trust. shall mean the trust, incorporated into and forming
a part of the Plan, by which the Employer's contributions and contributions from
Participants shall be received, held, invested and disbursed to or for the
benefit of Participants and their Beneficiaries.
Section 1.69 "Trustee" shall mean the individual, individuals, or
financial institution specified in Item 3 of the Adoption Agreement; provided,
however, that if the Sponsor is a national banking organization, then such
entity shall be specifically limited to those other affiliates of the Sponsor
which are legally authorized to perform fiduciary trust services and to those
individuals and organizations permitted by law and authorized in writing by the
Sponsor to act as Trustee to the extent so authorized.
Section 1.70 "Trust Fund" shall mean all assets held under the Plan by
the Trustee. The corpus or income of the Trust Fund shall not be diverted for
purposes other than the exclusive benefit of Participants, Retired or Separated
Participants and their Spouses and Beneficiaries.
Section 1.71 "Valuation Date" shall mean the day upon which a Plan Year
ends or such other date as of which assets are valued for purposes of an interim
valuation pursuant to the provisions of Section 4.09 hereof.
Section 1.72 "Vested Account Balance" shall mean the aggregate value of
the Participant's vested Accounts whether vested before or upon death, including
the proceeds of insurance contracts, if any, on the Participant's life.
Section 1.73 "Vesting Service" shall mean (i) the period defined in
subsection (a) hereof for Plans which count Hours of Service pursuant to Item 6
of the Adoption Agreement and (ii) the period defined in subsection (b) hereof
for Plans which use the "elapsed time" method pursuant to Item 6 of the Adoption
Agreement, subject to subsection (c) and the other rules which follow subsection
(c).
(a) Hours Counting Method. "Vesting Service" shall mean the
number of Plan Years during which an Employee has at least
one thousand (1,000) Hours of Service, subject to the
limitations set out in this section and in Item 17 of the
Adoption Agreement.
Subject to the limitations set out herein and in Item 11
of the Adoption Agreement, a Participant shall receive
credit for a full year of Vesting Service with respect to
a Plan Year which is of less than twelve (12) months
duration (as described in Section 1.49) if he completes
one thousand (1,000) Hours of Service during the twelve
(12) month period which commences on the first day of such
Plan Year.
(b) Elapsed Time Method. "Vesting Service" shall mean a one
(1) year period of Service. A "period of Service" shall
mean the period commencing on the Employee's date of
commencement of employment, or reemployment, as the case
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<PAGE>
may be, with the Employer and ending on the first day of
the subsequent Break in Service.
(c) Special Rules.
(1) For Plan Years beginning on or before December
31, 1984, however, the following periods of
Service shall be disregarded in computing a
Participant's period of Vesting Service under
the Plan.
(i) Service after a Break in Service
shall be disregarded with respect to
determining the vesting percentage
applicable to any benefit derived
from contributions made by the
Employer before such Break in
Service.
(ii) If the "Rule of Parity" is to apply
to the Plan pursuant to Item 17(d)
of the Adoption Agreement, then
Service before a Break in Service
shall be disregarded if the Employee
did not have a nonforfeitable right
to any portion of his Employer
Account at the time of the Break in
Service, and if the number of
consecutive Breaks in Service equals
or exceeds the Employee's number of
years of Vesting Service prior to
such consecutive Breaks in Service.
The number of years of Vesting
Service prior to such consecutive
Breaks in Service shall be deemed to
exclude any years of Vesting
Service not required to be taken
into account by reason of any prior
Break in Service.
(2) For Plan Years beginning after December 31,
1984, however, the following periods of Service
shall be disregarded in computing a
Participant's period of Vesting Service under
the Plan.
(i) Service after a period of five (5)
or more consecutive Breaks in
Service shall be disregarded with
respect to determining the vesting
percentage applicable to any benefit
derived from contributions made by
the Employer before such period.
(ii) If the "Rule of Parity" is to apply
to the Plan pursuant to Item 17(d)
of the Adoption Agreement, then
Service before any period of
consecutive Breaks in Service shall
be disregarded if the Employee does
not have a nonforfeitable right to
any portion of his Accounts
attributable to Employer
contributions before such period of
consecutive Breaks in Service, and
if the number of consecutive Breaks
in Service equals or exceeds the
greater
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<PAGE>
of (i) five (5) or (ii) the
Employee's aggregate number of years
of Vesting Service prior to such
period of consecutive Breaks in
Service. The number of years of
Vesting Service prior to such period
of consecutive Breaks in Service
shall be deemed to exclude any years
of Vesting Service not required to
be taken into account by reason of
any prior period of consecutive
Breaks in Service.
This subsection (a)(2) shall have applicability
only prospectively for Plan Years beginning
after December 31, 1984, and shall not be
applied in Plan Years after this date with
respect to Plan Years beginning on or before
this date with the result of requiring an
Employer to take into account as Vesting
Service any Service which was disregarded in
subsection (a)(l) hereof.
For all Plan Years, Service with a predecessor employer shall be
disregarded in computing a Participant's period of Vesting Service under the
Plan, unless the Employer is maintaining a tax-qualified plan of the predecessor
employer and/or the predecessor employer is either listed in Item 22 of the
Adoption Agreement or is designated in writing by the Employer (or the Employer
otherwise elects to count Service with a predecessor employer in Item 22 of the
Adoption Agreement).
If this Plan is a continuation of a Plan which was in effect prior to
ERISA, then the provisions of the pre-ERISA plan with respect to (1)
non-continuous employment and (2) the measurement of periods of employment shall
continue to apply to Service prior to the date ERISA first applied to the Plan
if those provisions have been continuously and uniformly applied after ERISA
came into effect.
In the event a Participant becomes ineligible to participate because he
is no longer a member of an eligible class of employees, or an Employee who is
not a member of the eligible class of employees becomes a member of the eligible
class, employment in the ineligible class shall be treated as Service for
purposes of determining Vesting Service.
Section 1.74 "Voluntary Deductible Contributions" shall mean
contributions made by the Employee pursuant to Section 3.03(b) hereof.
Section 1.75 "Voluntary Deductible Contributions Account" shall mean the
account maintained on behalf of a Participant to which shall be credited the
Participant's Voluntary Deductible Contributions and the Participant's share of
the Income of the Trust Fund allocable to this account.
Section 1.76 "Year of Service" shall mean (i) the period defined in
subsection (a) hereof for Plans which count Hours of Service pursuant to Item 6
of the Adoption Agreement and (ii) the period defined in subsection (b) hereof
for Plans which use the "elapsed time" method pursuant to Item 6 of the Adoption
Agreement.
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<PAGE>
(a) Hours Counting Method. A "Year of Service" shall mean a twelve
(12) consecutive month period during which an Employee completes
at least one thousand (1,000) Hours of Service.
For purposes of determining eligibility, the initial twelve (12)
month period shall commence on the date the Employee first
performs an Hour of Service, and each subsequent twelve (12)
month period shall be the Plan Year, beginning with the last
Plan Year which commences prior to the end of the initial twelve
(12) month period, regardless of whether or not the Employee is
entitled to be credited with one thousand (1,000) Hours of
Service during the initial eligibility computation period. If a
Plan Year is a Plan Year of less than the twelve (12) months
duration described in Section 1.49 hereof, then the Employee
must be credited with one thousand (1,000) Hours of Service
during the twelve (12) month period commencing on the first day
of such short Plan Year to be credited with a Year of Service.
If less than one (1) Year of Service is required for eligibility
pursuant to Item 5 of the Adoption Agreement, an Employee shall
not be required to complete any number of Hours of Service for
purposes of eligibility.
Notwithstanding the foregoing, however, if any period of Service
in excess of one (1) Year of Service is required for eligibility
pursuant to Item 5 of the Adoption Agreement, then for purposes
of determining eligibility the initial twelve (12) month period
shall commence on the date the Employee first performs an Hour
of Service, and each subsequent twelve (12) month period shall
commence on the anniversary date of the date the Employee first
performs an Hour of Service.
(b) Elapsed Time Method. A "Year of Service" shall mean a one (1)
year period of Service." A "period of Service" shall mean the
period commencing on the Employee's date of commencement of
employment, or reemployment, as the case may be, with the
Employer and ending on the first day of the subsequent Break in
Service. The Employee's date of commencement of employment or
reemployment is the first day the Employee performs an Hour of
Service.
(c) Accrual of Benefits. For purposes of determining the accrual of
benefits, the twelve (12) consecutive month period shall be the
twelve (12) consecutive month period beginning on the first day
of the Plan Year.
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<PAGE>
ARTICLE 2
ELIGIBLE EMPLOYEES AND PARTICIPANTS
Section 2.01 Eligibility. Each present and future Employee who is not
excluded from participation under Item 4 of the Adoption Agreement shall be
eligible to become a Participant as of the date on which he first meets all of
the eligibility requirements set forth in Item 5(a) of the Adoption Agreement,
provided he is then an Employee. However, no Employee shall be eligible to
become a Participant prior to the effective date of adoption of the Plan by his
Employer.
Section 2.02 Eligibility Determination. Within sixty (60) days prior to
the date on which an Employee shall, if he continues in Service with the
Employer, satisfy the eligibility and participation requirements set forth in
Item 5 of the Adoption Agreement, the Plan Administrator shall forward to the
Employee such application for participation as the Plan Administrator shall
require, if any, and shall notify him of the requirements to become a
Participant, if any. An Employee who does not apply for participation when he
first becomes eligible may apply for participation as of any succeeding date he
is eligible to begin participation. In such event, his participation shall
commence as of such succeeding date. Should any question arise as to
eligibility, the Plan Administrator shall, after any hearing requested by the
Employee concerned, decide such question, and such determination, if made in
good faith and in accordance with the terms of the Plan, shall be final.
Notwithstanding the foregoing, in no event shall a standardized plan
require any application for participation, except pursuant to Adoption
Agreements #006 and #010 in cases where Elective Deferral Contributions or
Employee Contributions are required for participation.
Section 2.03 Participation. An Employee who meets the eligibility
requirements of Section 2.01 shall become a Participant on the date indicated in
Item 5(b) of the Adoption Agreement provided that he is still an Employee on
that date and has filed with the Plan Administrator such written application as
the Plan Administrator may require for participation in the Plan, if any, in
which he has agreed to abide by all the provisions thereof.
Once an Employee has become a Participant he shall continue to be a
Participant until his Service terminates or he incurs a Break in Service, dies,
sustains Disability, or retires. In the event that a Participant's Service
terminates or he incurs a Break in Service, dies, sustains Disability, or
retires in accordance with the provisions of the Plan, he shall thereupon cease
to be a Participant. If a Participant becomes a Separated Participant because of
a change in his classification of employment to one (1) of the classes, if any,
excluded in Item 4 of the Adoption Agreement, he shall be granted benefits, if
any, in accordance with Article 8 hereof; provided, however, that employment of
the Separated Participant in such an excluded class shall be deemed Service for
eligibility and vesting purposes.
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<PAGE>
Section 2.04 Participation Following Reemployment or Break in Service. A
former Participant whose Service has terminated, or who has incurred a Break in
Service, shall become a Participant immediately upon again being credited with
Service if such former Participant had a nonforfeitable right to all or a
portion of his Accounts attributable to contributions made by the Employer
pursuant to Section 3.01 at the time of such termination or break.
For Plan Years beginning on or before December 31, 1984, in Plans which
require an Employee to complete one thousand (1,000) Hours of Service in order
to have a Year of Service for eligibility purposes, a former Participant or
former Employee whose Service has terminated, or who has incurred a Break in
Service, but who did not have a nonforfeitable right to any portion of his
Accounts attributable to contributions made by the Employer pursuant to Section
3.01 at the time of such termination or break shall be considered a new Employee
upon again being credited with Service, for eligibility purposes (his Years of
Service prior to the Break in Service shall be disregarded), if the number of
his consecutive Breaks in Service equals or exceeds the aggregate number of his
Years of Service before such termination or break. If, in the case of a former
Participant, such former Participant's Years of Service before his termination
or break exceed the number of consecutive one (1) year Breaks in Service after
such termination or break, then such former Participant shall be eligible to
participate immediately. If, in the case of a former Employee, such former
Employee had satisfied the age and service requirements of the Plan but had
terminated prior to commencing participation in the Plan, then if such former
Employee returns to Service after the date he would have commenced participation
(if he had not terminated) but before incurring a one (1) year Break in Service,
he shall be eligible to participate immediately.
For Plan Years beginning after December 31, 1984, in Plans which require
an Employee to complete one thousand (1,000) Hours of Service in order to have a
Year of Service for eligibility purposes, a former Participant or former
Employee whose Service has terminated, or who has incurred a Break in Service,
but who did not have a nonforfeitable right to any portion of his Accounts
attributable to contributions made by the Employer pursuant to Section 3.01 at
the time of such break shal1 be considered a new Employee upon again being
credited with Service, for eligibility purposes (his Years of Service prior to
the Break in Service shall be disregarded), if the number of his consecutive
Breaks in Service equals or exceeds the greater of five (5) or the aggregate
number of his Years of Service before such Breaks in Service. If any Years of
Service are not taken into account under this paragraph, then such Years of
Service shall not be taken into account in applying this paragraph to a
subsequent period of Breaks in Service. If, in the case of a former Participant,
such former Participant's number of consecutive Breaks in Service do not equal
or exceed the greater of five (5) or the aggregate number of his Years of
Service, then such former Participant shall participate immediately upon again
being credited with Service. If, in the case of a former Employee, such former
Employee had satisfied the age and service requirements of the Plan but had
terminated prior to commencing participation in the Plan, then if such former
Employee returns to Service after the date he would have commenced participation
(if he had not terminated) but before incurring five (5) consecutive one (1)
year
2-2
<PAGE>
Breaks in Service, he shall be eligible to participate immediately. This
paragraph shall have applicability only prospectively for Plan Years beginning
after December 31, 1984, and shall not be applied in Plan Years after this date
with the result of requiring an Employer to take into account as Service for
eligibility any Service which was not taken into account in the preceding
paragraph.
Section 2.05 Participation Following Change in Classification. In the
event a Participant becomes ineligible to participate because he is no longer a
member of an eligible class of Employees, but he has not incurred a Break in
Service, such Employee shall participate immediately upon his return to an
eligible class of Employees. If such Participant incurs a Break in Service, his
eligibility to participate shall be determined as a former Participant pursuant
to Section 2.04 hereof.
In the event an Employee who is not a member of the eligible class of
Employees becomes a member of the eligible class, such Employee then shall
participate immediately if such Employee has satisfied the minimum age and
Service requirements and would have previously become a Participant had he been
in the eligible class. If such an Employee has not satisfied the minimum age and
Service requirements when he becomes a member of the eligible class, he shall
participate as provided in Section 2.03 hereof, and his employment in the
ineligible class shall be treated as Service in determining his eligibility to
participate.
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<PAGE>
ARTICLE 3
CONTRIBUTIONS TO THE PLAN
Section 3.01 Employer Contributions. Each Plan Year the Employer shall
make a contribution computed according to this Section 3.01 and Item 8 of the
Adoption Agreement. Contributions made pursuant to this Section 3.01 shall be
subject to the availability of sufficient Net Profits, if so required by the
election in Item 8 of the Adoption Agreement.
Contributions made pursuant to this Section 3.01 may be made in cash or
in other property acceptable to the Trustee; provided, however that Elective
Deferral Contributions shall only be made in cash.
Contributions made to the Plan by the Employer shall be made on the
condition that such contributions are deductible under Code Section 404.
The following types of Employer contributions may be elected by the
Employer if available in Item 8 of the Adoption Agreement:
(a) Elective Deferral Contributions. If the Plan allows Elective
Deferral Contributions, the Employer shall contribute, on behalf
of each Participant, the amount, if any, elected by the
Participant in lieu of cash compensation as an Elective Deferral
Contribution, pursuant to an elective deferral agreement. Such
Elective Deferral Contributions shall be considered to be
Employer contributions under the Plan and shall be
nonforfeitable when made.
A Participant shall make an election, or may change an election,
by entering into an elective deferral agreement with his
Employer during the time periods described in Item 8(a) of the
Adoption Agreement. An elective deferral agreement shall remain
in effect until modified or terminated.
A Participant, by written notice filed with the Employer at
least thirty (30) days in advance of the effective date of such
notice (or within such shorter notice period as may be
acceptable to the Employer) may elect to prospectively revoke
such elective deferral agreement. Such revocation shall become
effective with the first pay period beginning coincident with or
next following the expiration of the notice period and shall not
have retroactive effect. In the event of such revocation, a
Participant may again enter into an elective deferral agreement
with his Employer on the date indicated in Item 8(a)(4) of the
Adoption Agreement which follows such revocation.
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<PAGE>
The amount a Participant may elect to have made on his behalf as
an Elective Deferral Contribution shall be in accordance with
Item 8(a) of the Adoption Agreement, subject to the limitations
of Sections 3.04 and 3.05 hereof.
The Plan Administrator may establish additional procedures for
the renewal, amendment, termination, or revocation of elective
deferral agreements which shall be uniform and
nondiscriminatory. However, the requirement of uniformity (but
not nondiscrimination) may be suspended, and such differences in
procedure (provided such differences are merely procedural) may
be permitted between Highly Compensated Employees and Non-highly
Compensated Employees as are necessary, proper and convenient in
order to bring the Plan into compliance with the
nondiscrimination requirements of Section 3.05 hereof and
thereby preserve, or assure the preservation of, the qualified
status of the Plan.
If the Plan Administrator shall determine that the Elective
Deferral Contributions would exceed the limitations of Section
3.04 hereof, the Plan Administrator shall, before the end of the
Plan Year following the Plan Year during which such excess
deferrals occur, distribute the amount of such excess (and
income allocable thereto) to the Participant on whose behalf the
contribution was made.
(b) Matching Contributions. The Employer shall contribute a Matching
Contribution based on a Participant's Elective Deferral
Contributions and/or Employee Contributions according to Item
8(b) of the Adoption Agreement; provided, however, that the
Employer shall not contribute amounts which (i) would, if
allocated to the Matching Accounts of Highly Compensated
Employees pursuant to Section 4.01(b), create Excess Aggregate
Contributions (as defined in Section 3.06) or (ii) are
attributable to contributions which pursuant to Sections 3.04,
3.05(c) or 3.06(d) are to be distributed to Employees.
Any Employer which adopts any Adoption Agreement hereunder other
than Adoption Agreements #002, #006 or #010, will no longer be
allowed to accept Matching Contributions for periods following
the date such Adoption Agreement is adopted by the Employer.
Matching Contributions for Plan Years beginning after December
31, 1986, together with any Employee Contributions, will be
limited so as to meet the nondiscrimination test of Section
401(m) of the Code.
(c) Employer Contributions.
(1) If the Plan is a profit sharing plan, then each Plan
Year the Employer shall make an Employer Contribution
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<PAGE>
computed according to Item 8 of the Adoption Agreement.
(2) If the plan is a money purchase pension plan or a target
benefit pension plan, then each Plan Year the Employer
shall make an Employer Contribution computed according
to Item 8 of the Adoption Agreement on behalf of
Participants who completed the required amount of
Service during such Plan Year and who are still in
Service on the Valuation Date. Participants who complete
the required amount of Service during a Plan Year, but
who are no longer in Service on the Valuation Date at
the end of the Plan Year, shall be included in, or
excluded from, the computation for such Plan Year as
specified in Item 12 of the Adoption Agreement.
Participants who die, become disabled or retire during
the Plan Year shall be included in or excluded from the
computation for such Plan Years according to the
election made by the Employer in Item 12 of the Adoption
Agreement.
(i) Required Service - Hours Counting Method. For
purposes of nonstandardized plans and, for Plan
Years commencing prior to January 1, 1989,
standardized plans, if the Plan counts Hours of
Service pursuant to Item 6 of the Adoption
Agreement then the Participant shall be required
to complete at least one thousand (1000) Hours
of Service during the Plan Year in order to have
an Employer Contribution made on his behalf.
However, in the event that a Plan Year is of
less than twelve (12) months' duration (as
described in the second sentence of Section
1.49), then the requirement for completion of
one thousand (1000) Hours of Service shall be
reduced pro rata, based on the length of such
Plan Year.
For purposes of standardized plans for Plan
Years commencing after December 31, 1988, if the
Plan counts Hours of Service pursuant to Item 6
of the Adoption Agreement then the Participant
shall be required to complete at least one (1)
Hour of Service during the Plan Year in order to
have an Employer Contribution made on his
behalf.
(ii) Required Service - Elapsed Time Method. If the
Plan uses the "elapsed time" method pursuant to
Item 6 of the Adoption Agreement, then the
Participant shall be required to perform an Hour
of Service during the Plan Year in order to have
an Employer Contribution made on his behalf.
3-3
<PAGE>
For purposes of this Section 3.01, Employer
Contributions shall be calculated as if the Plan
were not Top Heavy. In the event that the Plan
is a Top Heavy Plan in a Plan Year, additional
Employer Contributions may be required pursuant
to the provisions of Section 13.03.
(d) Qualified Non-elective Contributions. The Employer shall
contribute a Qualified Non-elective Contribution
computed according to Item 8(c) of the Adoption
Agreement. Qualified Non-elective Contributions must be
contributions that Participants may not elect to receive
in cash until distributed from the Plan, that are
nonforfeitable when made, and that are distributable
only in accordance with the distribution provisions that
are applicable to Elective Deferrals and Qualified
Matching Contributions.
(e) Qualified Matching Contributions. The Employer shall
contribute a Qualified Matching Contribution based on a
Non-Highly Compensated Employee's Elective Deferral
Contributions if so elected in Item 8(d) of the Adoption
Agreement. Qualified Matching Contributions shall be
subject to the distribution and nonforfeitability
requirements under Code Section 401(k) when made.
As to contributions made to a plan maintained by a partnership
with respect to Plan Years beginning after December 31, 1988, no
arrangement shall be allowed (other than a one-time irrevocable
election as described below) which directly or indirectly
permits individual partners to vary the amount of contributions
made on their behalf on a year-to-year basis. A one-time
irrevocable election made by an Employee to have the Employer
contribute a specified amount or percentage of Compensation to
the Plan for the duration of the Employee's employment with the
Employer shall be allowed if the election is made upon
commencement of employment or upon the Employee's first becoming
eligible under any Plan of the Employer. In addition, any
individual's one-time irrevocable election to participate or not
to participate in the Plan, if only partners participate, shall
be allowed if such election is made on or before the later of
the first day of the first Plan Year beginning after December
31, 1988, or March 31, 1989, without regard to whether the
election is made upon commencement of employment or upon the
Employee's first becoming eligible under any Plan of the
Employer. Such an election shall be in writing and shall be made
in such form, and at such time, as the Employer may require.
Section 3.02 Time of Payment. Except as may be otherwise provided in
this Section 3.02, contributions by the Employer with respect to any Plan Year
shall be made within the time provided by the Code for deduction of such
contributions. However, if the Plan is a money purchase pension plan or a target
benefit pension plan, then contributions by the Employer with respect to any
Plan Year may be made within the time
3-4
<PAGE>
provided by the Code or regulations thereunder for compliance with minimum
funding requirements, if later. In addition, Elective Deferral Contributions
shall be paid to the Trustee as soon as practicable, but no later than the
earlier of (i) the last day of the twelve (12) month period immediately
following the Plan Year to which the contribution relates or (ii) the date
required by U.S. Department of Labor regulations concerning the contribution to
a trust of Elective Deferral Contributions that are plan assets.
Section 3.03 Participant Contributions. Participant contributions may be
allowed on a voluntary basis, if elected in Item 9 of Adoption Agreement.
A separate account shall be established and maintained for each type of
Participant contribution. Contributions by a Participant shall be remitted to
the Trustee, and shall be credited to the account established therefor and,
together with all Income allocable to such account, shall vest immediately.
Participant contributions shall be permitted, unless otherwise restricted herein
or by law, at such time or times, and in such form and manner, as may be
uniformly and nondiscriminatorily established by the Plan Administrator.
(a) Employee Contributions. If the Plan allows Employee
Contributions, the Employer shall contribute to the Employee
Account on behalf of each Participant the amount, if any,
elected by the Participant as an Employee Contribution. Employee
Contributions shall be made on a non-deductible basis and shall
not be subject to any restrictions imposed by Code Sections
72(o) and 219.
The contribution to be made as a result of such deduction from
Compensation shall be paid to the Trustee as soon as
practicable, but no later than the date required by U.S.
Department of Labor regulations concerning the contribution to a
trust of Employee Contributions that are plan assets. Such
Employee Contributions shall be nonforfeitable when made.
If pursuant to Item 9 of the Adoption Agreement Employee
Contributions are made pursuant to payroll deduction agreements,
a Participant shall make an election, or may change an election,
by entering into a payroll deduction agreement with his Employer
during the time periods described in Item 9 of the Adoption
Agreement. A payroll deduction agreement shall remain in effect
until modified or terminated.
A Participant, by written notice filed with the Employer at
least thirty (30) days in advance of the effective date of such
notice (or within such shorter notice period as may be
acceptable to the Employer) may elect to prospectively revoke
such payroll deduction agreement. Such revocation shall become
effective with the first pay period beginning coincident with or
next following the expiration of the
3-5
<PAGE>
notice period and shall not have retroactive effect. In the
event of such revocation, a Participant may again enter into a
payroll deduction agreement with his Employer at such time as a
new Participant may make an initial election pursuant to Item 9
of the Adoption Agreement.
The Plan Administrator may establish additional procedures for
the renewal, amendment, termination, or revocation of payroll
deduction agreements and other types of Employee Contribution
elections which shall be uniform and nondiscriminatory. However,
the requirement of uniformity (but not nondiscrimination) may be
suspended, and such differences in procedure (provided such
differences are merely procedural) may be permitted between
Highly Compensated Employees and Non-highly Compensated
Employees as are necessary, proper and convenient in order to
bring the Plan into compliance with the nondiscrimination
requirements of Section 3.06 hereof and thereby preserve, or
assure the preservation of, the qualified status of the Plan.
Any Employer which adopts any Adoption Agreement hereunder other
than Adoption Agreements #002, #006 or #010, will no longer be
allowed to accept Employee Contributions for Plan Years
beginning after the Plan Year in which such Adoption Agreement
is adopted by the Employer. Employee Contributions for Plan
Years beginning after December 31, 1986, together with any
Matching Contributions, will be limited so as to meet the
nondiscrimination test of Section 401(m) of the Code.
(b) Voluntary Deductible Contributions. The Plan Administrator will
not accept Voluntary Deductible Contributions which are made for
taxable years beginning after December 31, 1986. Voluntary
Deductible Contributions made prior to that date will be
maintained in the Voluntary Deductible Contributions Account
which will be nonforfeitable at all times. That account will
share in the Income of the Trust in the same manner as described
in Section 4.03 of the Plan. No part of the Voluntary Deductible
Contributions Account will be used to purchase life insurance.
Subject to Section 6.03, Qualified Joint and Survivor Annuity
requirements (if applicable), the Participant may withdraw any
part of the Voluntary Deductible Contribution Account by making
a written application to the Plan Administrator.
(c) Rollover. Rollover Contributions by a Participant to the Plan,
including rollovers of accumulated deductible employee
contributions as defined in Section 72(o)(5) of the Code,
distributed pursuant to Sections 402(a)(5), 402(a)(7) and
403(a)(4) of the Code from other pension, profit sharing or
stock bonus plans qualified under Section 401(a) of the Code or
pursuant to Section 408(d)(3) of the Code from Individual
Retirement Accounts which have been
3-6
<PAGE>
established as conduits for such other plan distributions, if
allowed by Item 9(b) of the Adoption Agreement, shall be allowed
in cash or other property acceptable to the Trustee; provided,
however, that no portion of any such Rollover Contribution may
be attributable to nondeductible employee contributions.
Rollover Contributions shall be made to the Rollover Account.
Amounts in a Participant's Rollover Account may be withdrawn at
any time as a lump sum, or may be combined with other benefits
due under the Plan and paid in any form which may be allowed for
the payment of such other benefits.
Such rollovers shall be considered neither in determining the
maximum addition which may be made to the Participant's Accounts
under Section 4.07 hereof nor as contributions by the Employer
under Sections 3.01 or 13.03 hereof.
Section 3.04 Limit on Elective Deferrals. No Participant shall be
permitted to have "Elective Deferrals" made under this Plan, or any other
qualified plan maintained by the Employer, during any taxable year, in excess of
the dollar limitation contained in Section 402(g) of the Code in effect at the
beginning of such taxable year. For purposes of this Section 3.04, "Elective
Deferrals" shall include any employer contributions made to the plan at the
election of the Participant, in lieu of cash compensation, and shall include
contributions made pursuant to a salary reduction agreement or other deferral
mechanism. With respect to any taxable year, a Participant's Elective Deferral
is the sum of all employer contributions made on behalf of such Participant
pursuant to an election to defer under any qualified cash or deferred
arrangement as described in Code Section 401(k), any simplified employee pension
cash or deferred arrangement as described in Code Section 402(h)(1)(B), any
eligible deferred compensation plan under Code Section 457, any plan as
described under Code Section 501(c)(18), and any employer contributions made on
the behalf of a Participant for the purchase of an annuity contract under Code
Section 403(b) pursuant to a salary reduction agreement.
A Participant may assign to this Plan any "Excess Elective Deferrals"
made during a taxable year of the Participant by notifying the Plan
Administrator on or before the date specified in Item 8(a) of the Adoption
Agreement of the amount of the Excess Elective Deferrals to be assigned to the
Plan.
Notwithstanding any other provision of the Plan, Excess Elective
Deferrals, plus any Income allocable thereto, shall be distributed no later than
April 15 to any Participant to whose account Excess Elective Deferrals were
assigned for the preceding year and who claims Excess Elective Deferrals for
such taxable year.
"Excess Elective Deferrals" shall mean those Elective Deferrals that are
includible in a Participant's gross income under Section 402(g) of the Code to
the extent such Participant's Elective Deferrals for a taxable year exceed the
dollar limitation under such Code section. Excess
3-7
<PAGE>
Elective Deferrals shall be treated as Annual Additions, as defined in Section
4.07, under the Plan.
Excess Elective Deferrals shall be adjusted for any Income up to the
date of distribution. The Income allocable to Excess Elective Deferrals is the
sum of: (i) Income allocable to the Participant's Elective Deferral Account for
the taxable year multiplied by a fraction, the numerator of which is such
Participant's Excess Elective Deferrals for the year and the denominator of
which is the Participant's account balance attributable to Elective Deferrals
without regard to any Income occurring during such taxable year; and (ii) ten
percent (10%) of the amount determined under (i) multiplied by the number of
whole calendar months between the end of the Participant's taxable year and the
date of distribution, counting the month of distribution if distribution occurs
after the fifteenth (15th) of such month.
Section 3.05 Special Discrimination Requirements for Elective Deferral
Contributions (including Oualified Non-elective Contributions and Qualified
Matching Contributions).
(a) Average Deferral Percentage Test. The Average Deferral
Percentage (hereinafter "ADP") for eligible Employees who are
Highly Compensated Employees for each Plan Year and the ADP for
eligible Employees who are Non-highly Compensated Employees for
the same Plan Year must satisfy one of the following tests:
(1) The ADP for eligible Employees who are Highly
Compensated Employees for the Plan Year shall not exceed
the ADP for eligible Employees who are Non-highly
Compensated Employees for the same Plan Year multiplied
by one and twenty-five hundredths (1.25); or
(2) The ADP for eligible Employees who are Highly
Compensated Employees for the Plan Year shall not exceed
the ADP for eligible Employees who are Non-highly
Compensated Employees for the same Plan Year multiplied
by two (2), provided that the ADP for eligible Employees
who are Highly Compensated Employees does not exceed the
ADP for eligible Employees who are Non-highly
Compensated Employees by more than two (2) percentage
points.
"Average Deferral Percentage" shall mean, for a specified group
of eligible Employees for a Plan year, the average of the ratios
(calculated separately for each eligible Employee in such group)
of (i) the amount of Employer contributions actually paid over
to the trust on behalf of such eligible Employee for the Plan
Year to (ii) the eligible Employee's Compensation for such Plan
Year (whether or not the Employee was a eligible Employee for
the entire Plan Year). Notwithstanding the preceding sentence,
for Plan Years commencing prior to the later of
3-8
<PAGE>
January 1, 1992 and the date that is sixty (60) days after the
publication of final regulations the Compensation used in
determining the Average Deferral Percentage shall be limited to
Compensation received by the Employee for the period in which he
is a Participant, if this method is elected by the Employer in
Item 7 of the Adoption Agreement. Employer contributions on
behalf of any eligible Employee shall include: (1) any Elective
Deferral Contributions made pursuant to the eligible Employee's
deferral election, including Excess Elective Deferrals, but
excluding Elective Deferral Contributions that are taken into
account in the Contribution Percentage test under Section 3.06
(provided the ADP test is satisfied both with and without
exclusion of these Elective Deferral Contributions); and (2)
Qualified Non-elective Contributions and Qualified Matching
Contributions. For purposes of computing Average Deferral
Percentages, a person shall be treated as an eligible Employee
on whose behalf no Elective Deferral Contributions are made if
he would be a Participant, but for the failure to make
Elective Deferral Contributions.
(b) Special Rules.
(1) The ADP for any eligible Employee who is a Highly
Compensated Employee for the Plan Year and who is
eligible to have Elective Deferral Contributions (and
Qualified Non-elective Contributions or Qualified
Matching Contributions, or both, if treated as Elective
Deferrals for purposes of the ADP test) allocated to his
Accounts under two (2) or more arrangements described in
Section 401(k) of the Code, that are maintained by the
Employer, shall be determined as if such Elective
Deferral Contributions (and, if applicable, such
Qualified Non-elective Contributions or Qualified
Matching Contributions, or both) were made under a
single arrangement. If a Highly Compensated Employee
participates in two (2) or more cash or deferred
arrangements that have different Plan Years, all cash or
deferred arrangements ending with or within the same
calendar year shall be treated as a single arrangement.
(2) In the event that this Plan satisfies the requirements
of Sections 401(k), 401(a)(4), or 410(b) of the Code
only if aggregated with one or more other plans, or if
one or more other plans satisfy the requirements of such
sections of the Code only if aggregated with this Plan,
then this section shall be applied by determining the
ADP of Employees as if all such plans were a single
plan. For Plan Years beginning after December 31, 1989,
plans may be aggregated in order to satisfy Section
401(k) of the Code only if they have the same Plan Year.
3-9
<PAGE>
(3) For purposes of determining the ADP of an eligible
Employee who is a five percent (5%) owner or one of the
ten (10) most highly-paid Highly Compensated Employees,
the Elective Deferral Contributions (and Qualified
Non-elective Contributions or Qualified Matching
Contributions, or both, if treated as Elective Deferral
Contributions for purposes of the ADP test) and
Compensation of such eligible Employee shall include the
Elective Deferral Contributions (and, if applicable,
Qualified Non-elective Contributions and Qualified
Matching Contributions, or both) and Compensation for
the Plan Year of family members (as defined in section
414(q)(6) of the Code). Family members, with respect to
such Highly Compensated Employees, shall be disregarded
as separate Employees in determining the ADP both for
eligible Employees who are Non-highly Compensated
Employees and for eligible Employees who are Highly
Compensated Employees.
(4) For purposes of determining the ADP test, Elective
Deferral Contributions, Qualified Non-elective
Contributions and Qualified Matching Contributions must
be made before the last day of the twelve (12)month
period immediately following the Plan Year to which
contributions relate.
(5) The Employer shall maintain records sufficient to
demonstrate satisfaction of the ADP test and the amount
of Qualified Non-elective Contributions or Qualified
Matching Contributions, or both, used in such test.
(6) The determination and treatment of the ADP amounts of
any eligible Employee shall satisfy such other
requirements as may be prescribed by the Secretary of
the Treasury.
(c) Distribution of Excess Contributions. Notwithstanding any other
provision of this Plan, Excess Contributions, plus any Income
allocable thereto, shall be distributed no later than the last
day of each Plan Year to Participants to whose accounts such
Excess Contributions were allocated for the preceding Plan Year.
If such excess amounts are distributed more than two and
one-half (2-1/2) months after the last day of the Plan Year in
which such excess amounts arose, a ten (10) percent excise tax
will be imposed on the Employer maintaining the Plan with
respect to such amounts. Such distributions shall be made to
Highly Compensated Employees on the basis of the respective
portions of the Excess Contributions attributable to each of
such employees. Excess Contributions shall be allocated to
Participants who are Subject to the family member
3-10
<PAGE>
aggregation rules of Section 414(q)(6) of the Code in the manner
prescribed by the regulations.
"Excess Contributions" shall mean, with respect to any Plan
Year, the excess of:
(1) The aggregate amount of Employer contributions actually
taken into account in computing the ADP of Highly
Compensated Employees for such Plan Year, over
(2) The maximum amount of such contributions permitted by
the ADP test (determined by reducing contributions made
on behalf of Highly Compensated Employees in order of
the ADPs, beginning with the highest of such
percentages).
Excess Contributions shall be treated as Annual Additions, as
defined in Section 4.07, under the Plan.
(d) Determination of Income. Excess Contributions shall be adjusted
for any Income up to the date of distribution. The Income
allocable to Excess Contributions is the sum of:
(1) Income allocable to the Participant's Elective Deferral
Account (and, if applicable, the Qualified Non-elective
Account or the Qualified Matching Account or both) for
the Plan Year multiplied by a fraction, the numerator of
which is such Participant's Excess Contributions for the
year and the denominator of which is the Participant's
account balance attributable to Elective Deferral
Contributions (and Qualified Non-elective Contributions
or Qualified Matching Contributions, or both, if any of
such contributions are included in the ADP test) without
regard to any Income occurring during such Plan Year;
and
(2) ten (10) percent of the amount determined under (1)
multiplied by the number of whole calendar months
between the end of the Plan Year and the date of
distribution, counting the month of distribution if
distribution occurs after the fifteenth (15th) of such
month.
(e) Accounting for Excess Contributions. Excess Contributions shall
be distributed from the Participant's Elective Deferral Account
and Qualified Matching Account (if applicable) in proportion to
the Participant's Elective Deferral Contributions and Qualified
Matching Contributions (to the extent used in the ADP test) for
the Plan Year. Excess Contributions shall be distributed from
the Participant's Qualified Non-elective Account only to the
extent that such Excess Contributions exceed the balance in
3-11
<PAGE>
the Participant's Elective Deferral Account and Qualified
Matching Account.
Section 3.06 Special Discrimination Requirements for Employee
Contributions and Matching Contributions (including Qualified Non-elective
Contributions and Qualified Matching Contributions used in the ACP test).
(a) Average Contribution Percentage Test. The Average Contribution
Percentage (hereinafter "ACP") for eligible Employees who are
Highly Compensated Employees for each Plan Year and the ACP for
eligible Employees who are Non-highly Compensated Employees for
the same Plan Year must satisfy one of the following tests:
(1) The ACP for eligible Employees who are Highly
Compensated Employees for the Plan Year shall not exceed
the ACP for eligible Employees who are Non-highly
Compensated Employees for the same Plan Year multiplied
by one and twenty-five hundredths (1.25); or
(2) The ACP for eligible Employees who are Highly
Compensated Employees for the Plan Year shall not exceed
the ACP for eligible Employees who are Nonhighly
Compensated Employees for the same Plan Year multiplied
by two (2), provided that the ACP for eligible Employees
who are Highly Compensated Employees does not exceed the
ACP for eligible Employees who are Non-highly
Compensated Employees by more than two (2) percentage
points.
(b) Special Rules.
(1) Multiple Use: If one or more Highly Compensated
Employees participate in both a cash or deferred
arrangement and a Plan subject to the ACP test
maintained by the Employer and the sum of the ADP and
ACP of those Highly Compensated Employees subject to
either or both tests exceeds the Aggregate Limit, then
the ACP of those Highly Compensated Employees who also
participate in a cash or deferred arrangement will be
reduced (beginning with such Highly Compensated Employee
whose ACP is the highest) so that the limit is not
exceeded. The amount by which each Highly Compensated
Employee's Contribution Percentage Amounts is reduced
shall be treated as an Excess Aggregate Contribution.
The ADP and ACP of the Highly Compensated Employees are
determined after any corrections required to meet the
ADP and ACP tests. Multiple use does not occur if each
of the ADP and ACP of the Highly Compensated Employees
do not exceed 1.25 multiplied by the ADP and ACP,
respectively, of the Non-highly Compensated Employees.
3-12
<PAGE>
(2) For purposes of this section, the Contribution
Percentage for any eligible Employee who is a Highly
Compensated Employee and who is eligible to have
Contribution Percentage Amounts allocated to his account
under two (2) or more plans described in Section 401(a)
of the Code, or arrangements described in Section 401(k)
of the Code that are maintained by the Employer, shall
be determined as if the total of such Contribution
Percentage Amounts was made under each plan. If a Highly
Compensated Employee participates in two (2) or more
cash or deferred arrangements that have different Plan
Years, all cash or deferred arrangements ending with
or within the same calendar year shall be treated as a
single arrangement.
(3) In the event that this Plan satisfies the requirements
of Sections 401(m), 401(a)(4) or 410(b) of the Code only
if aggregated with one or more other plans, or if one or
more other plans satisfy the requirements of such
sections of the Code only if aggregated with this Plan,
then this section shall be applied by determining the
Contribution Percentage of Employees as if all such
plans were a single plan. For Plan Years beginning after
December 31, 1989, plans may be aggregated in order to
satisfy Section 401(m) of the Code only if they have the
same Plan Year.
(4) For purposes of determining the Contribution Percentage
of an eligible Employee who is a five percent (5%) owner
or one of the ten (10) most highly-paid Highly
Compensated Employees, the Contribution Percentage
Amounts and Compensation of such eligible Employee shall
include the Contribution Percentage Amounts and
Compensation for the Plan Year of family members (as
defined in Section 414(q)(6) of the Code). Family
members, with respect to Highly Compensated Employees,
shall be disregarded as separate employees in
determining the Contribution Percentage both for
eligible Employees who are Non-highly Compensated
Employees and for eligible Employees who are Highly
Compensated Employees.
(5) For purposes of the ACP test, Employee Contributions are
considered to have been made in the Plan Year in which
contributed to the Trust. Payment by the Employee to an
agent of the Plan shall be treated as a contribution to
the Trust at the time of payment to the agent if the
funds so paid are transmitted to the Trust within a
reasonable period after the payment to the agent.
Matching Contributions, Qualified Matching Contributions
and Qualified Non-elective Contributions will be
considered made for a Plan Year if made no later than
the end of the twelve (12)-month period
3-13
<PAGE>
beginning on the day after the close of the Plan Year and
designated for such Plan Year.
(6) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ACP test and the amount of Qualified
Non-elective Contributions or Qualified Matching Contributions, or
both, used in such test.
(7) The determination and treatment of the Contribution Percentage of
any eligible Employee shall satisfy such other requirements as may
be prescribed by the Secretary of the Treasury.
(c) Definitions.
(1) "Aggregate Limit" shall mean the sum of (i) one hundred twenty-five
percent (125%) of the greater of the ADP of the Non-highly
Compensated Employees for the Plan Year or the ACP of Non-highly
Compensated Employees under the Plan subject to Code Section 401(m)
for the Plan Year beginning with or within the Plan Year and (ii)
the lesser of two hundred percent (200%) or two (2) plus the lesser
of such ADP or ACP.
Notwithstanding the foregoing, the determination of the aggregate
limit shall be subject to such further rules and regulations as may
be prescribed by the Secretary of the Treasury.
(2) "Average Contribution Percentage" shall mean the average of the
Contribution Percentages of the eligible Employees in a group.
(3) "Contribution Percentage" shall mean the ratio (expressed as a
percentage) of the eligible Employee's Contribution Percentage
Amounts to the eligible Employee's Compensation for the Plan Year
(whether or not the Employee was a Participant for the entire Plan
Year).
Notwithstanding the preceding sentence, for Plan Years commencing
prior to the later of January 1, 1992 and the date that is sixty
(60) days after the publication of final regulations the
Compensation used in determining the Contribution Percentage shall
be limited to Compensation received by the Employee for the period
in which he is a Participant, if so elected by the Employer in Item
7 of the Adoption Agreement.
(4) "Contribution Percentage Amounts" shall mean the sum of the
Employee Contributions, Matching Contributions, and Qualified
Matching Contributions (to the extent not taken into account for
purposes of the ADP test)
3-14
<PAGE>
made under the Plan on behalf of the Participant for the Plan Year.
Such Contribution Percentage Amounts shall include Forfeitures of
Excess Aggregate Contributions or Matching Contributions allocated
to the Participant's account which shall be taken into account in
the year in which such Forfeiture is allocated. The Employer may
include Qualified Non-elective Contributions in the Contribution
Percentage Amounts, subject to such requirements as may be
prescribed by the Secretary of the Treasury. The Employer also may
use Elective Deferral Contributions in the Contribution Percentage
Amounts so long as the ADP test is met before the Elective
Deferrals are used in the ACP test and continues to be met
following the exclusion of those Elective Deferral Contributions
that are used to meet the ACP test, subject to such requirements as
may be prescribed by the Secretary of the Treasury.
(5) "Eligible Employee" shall mean any Employee who is eligible to make
an Employee Contribution, or an Elective Deferral Contribution (if
the Employer takes such contributions into account in the
calculation of the Contribution Percentage), or to receive a
Matching Contribution (including Forfeitures) or a Qualified
Matching Contribution. If an Employee Contribution is required as a
condition of participation in the Plan, any Employee who would be a
Participant in the Plan if such Employee made such a contribution
shall be treated as an eligible Employee on behalf of whom no
Employee Contributions are made.
(6) "Matching Contribution" for purposes of this section shall mean an
employer contribution made to this or any other defined
contribution plan on behalf of a Participant on account of an
employee contribution made by such Participant, or on account of a
participant's Elective Deferral, under a plan maintained by the
Employer.
(d) Distribution of Excess Aggregate Contributions.
Notwithstanding any other provision of this Plan, Excess Aggregate
Contributions, plus any Income allocable thereto, shall be forfeited,
if forfeitable, or if not forfeitable, distributed no later than the
last day of each Plan Year to Participants to whose accounts such
Excess Aggregate Contributions were allocated for the preceding Plan
Year. Excess Aggregate Contributions shall be allocated to Participants
who are subject to the family member aggregation rules of section
414(q)(6) of the Code in the manner prescribed by the regulations. If
such Excess Aggregate Contributions are distributed more than two and
one-half (2-1/2) months after the last day of the Plan Year in which
such excess amounts arose, a ten percent (10%) excise tax will be
imposed on the Employer maintaining the
3-15
<PAGE>
Plan with respect to those amounts. Excess Aggregate Contributions
shall be treated as Annual Additions, as defined in Section 4.07, under
the Plan.
"Excess Aggregate Contributions" shall mean, with respect to any Plan
Year, the excess of:
(1) The aggregate Contribution Percentage Amounts taken into account in
computing the numerator of the Contribution Percentage actually
made on behalf of Highly Compensated Employees for such Plan Year,
over
(2) The maximum Contribution Percentage Amounts permitted by the ACP
test (determined by reducing contributions made on behalf of Highly
Compensated Employees in order of their Contribution Percentages
beginning with the highest of such percentages).
Such determination shall be made after first determining Excess
Elective Deferrals pursuant to Section 3.04 and then determining Excess
Contributions pursuant to Section 3.05.
(e) Determination of Income. Excess Aggregate Contributions shall be
adjusted for any Income up to the date of distribution. The Income
allocable to Excess Aggregate Contributions is the sum of: (i) Income
allocable to the Participant's Employee Contribution Account, Matching
Contribution Account (if any, and if all amounts therein are not used
in the ADP test) and, if applicable, Qualified Non-elective
Contribution Account and Elective Deferral Account for the Plan Year
multiplied by a fraction, the numerator of which is such Participant's
Excess Aggregate Contributions for the year and the denominator of
which is the Participant's account balance(s) attributable to
Contribution Percentage Amounts without regard to any Income occurring
during such Plan Year; and (ii) ten percent (10%) of the amount
determined under (i) multiplied by the number of whole calendar months
between the end of the Plan Year and the date of distribution, counting
the month of distribution if distribution occurs after the fifteenth
(15th) of such month.
(f) Forfeitures of Excess Aggregate Contributions. Forfeitures of Excess
Aggregate Contributions may either be reallocated to the accounts of
Non-highly Compensated Employees or applied to reduce Employer
contributions, as elected by the Employer in Item 8 of the Adoption
Agreement.
(g) Accounting for Excess Aggregate Contributions. Excess Aggregate
Contributions shall be forfeited, if forfeitable, or distributed on a
pro-rata basis from the Participant's Employee Account, Matching
Account, and Qualified Matching Account (and, if applicable, the
Participant's Qualified Non-elective Account or Elective Deferral
Account, or both).
3-16
<PAGE>
Section 3.07 Responsibility of Trustee. The Trustee shall have no
responsibility for determining whether any Participant or Employer contribution
has been validly authorized or is in an amount permitted by this article nor
whether any Employer contribution is paid within the time permitted for its
deduction as an expense for such Employer.
Section 3.08 Contributions to Target Benefit Plans. If the Plan is a target
benefit pension plan, then the provisions set out in this section shall apply in
addition to the provisions set out in Section 3.01 above.
The Employer's Contribution for each Plan Year with respect to a
Participant for whom a contribution is required shall be that amount which, if
paid on the date as of which the calculation is made and on the anniversary of
such date commencing prior to the Participant's attainment of his Normal
Retirement Age, and if invested at the pre-retirement interest rate specified in
Item 8 of the Adoption Agreement until the end of the Plan Year during which the
Participant attains his Normal Retirement Age, and if added to the accumulated
value (as of the date of the calculation) of contributions assumed to have been
made with respect to prior Plan Years and similarly invested, would purchase the
Target Annual Retirement Benefit, if the value of the Target Annual Retirement
Benefit as of the end of the Plan Year during which the Participant attains his
Normal Retirement Age is based on the mortality table and the post-retirement
interest rate specified in Item 8 of the Adoption Agreement.
For purposes of determining Employer Contributions under this Section 3.08
for Plan Years commencing prior to the Plan Year in which the Participant
attains Normal Retirement Age, a contribution in the year in which the
Participant attains Normal Retirement Age will be assumed or not assumed based
on the provisions of Item 12 of the Adoption Agreement, the presumption that the
Participant will terminate employment on his Normal Retirement Date, and the
presumption of a forty (40) hour work week.
In the event that a change in the Compensation of a Participant or in the
actuarial assumptions used in the Plan causes the Participant's Target Annual
Retirement Benefit to differ from that in the last preceding Plan Year, the
increase or decrease in the Employer's Contribution on behalf of such
Participant shall be the amount which, if contributed on the date as of which
the calculation is made and on each anniversary of such date commencing prior to
the Participant's attainment of his Normal Retirement Age, would accumulate to
the value (computed as described in the immediately preceding paragraph) of the
increase or decrease in the Target Annual Retirement Benefit. If a former
Participant reenters the Plan following a Break in Service, the Employer shall
annually contribute an Employer Contribution on behalf of such Participant an
amount which equals (i) the amount it was contributing on behalf of such
Participant prior to the Break in Service, plus (ii) the amount attributable to
changes in the Target Annual Retirement Benefit due to changes in Compensation
and actuarial assumptions used in the Plan following such Break in Service.
3-17
<PAGE>
Employer Contributions shall be determined under the individual level
premium funding method using the following factor tables unless a mortality
table other than the UP-1984 Mortality Table is elected in Item 8 of the
Adoption Agreement, in which case the "Assumed Price of One Dollar ($1.00) of
Monthly Benefit" shall be based on the mortality table elected:
ACCUMULATION OF ONE DOLLAR ($1.00) PER YEAR
Pre-Retirement Interest Rate
Number -------------------------------------------
of Years 5% 5 1/2% 6%
--------- ----- ------ -----
1 1.050 1.055 1.060
2 2.153 2.168 2.184
3 3.310 3.342 3.375
4 4.526 4.581 4.637
5 5.802 5.888 5.975
6 7.142 7.267 7.394
7 8.549 8.722 8.897
8 10.027 10.256 10.491
9 11.578 11.875 12.181
10 13.207 13.583 13.972
11 14.917 15.386 15.870
12 16.713 17.287 17.882
13 18.599 19.293 20.015
14 20.579 21.409 22.276
15 22.657 23.641 24.673
16 24.840 25.996 27.213
17 27.132 28.481 29.906
18 29.539 31.103 32.760
19 32.066 33.868 35.786
20 34.719 36.786 38.993
21 37.505 39.864 42.392
22 40.430 43.112 45.996
23 43.502 46.538 49.816
24 46.727 50.153 53.865
25 50.113 53.966 58.156
26 53.669 57.989 62.706
27 57.403 62.234 67.528
28 61.323 66.711 72.640
29 65.439 71.435 78.058
30 69.761 76.419 83.802
31 74.299 81.677 89.890
32 79.064 87.225 96.343
33 84.067 93.077 103.184
34 89.320 99.251 110.435
35 94.836 105.765 118.121
36 100.628 112.637 126.268
37 106.710 119.887 134.904
38 113.095 127.536 144.058
39 119.800 135.606 153.762
40 126.840 144.119 164.048
41 134.232 153.100 174.951
42 141.993 162.576 186.508
3-18
<PAGE>
43 150.143 172.573 198.758
44 158.700 183.119 211.744
45 167.685 194.246 225.508
46 177.119 205.984 240.099
47 187.025 218.368 255.565
48 197.427 231.434 271.958
49 208.348 245.217 289.336
50 219.815 259.759 307.756
51 231.856 275.101 327.281
52 244.499 291.287 347.978
53 257.774 308.363 369.917
54 271.713 326.377 393.172
55 286.348 345.383 417.822
56 301.716 365.434 443.952
57 317.851 386.588 471.649
58 334.794 408.906 501.008
59 352.584 432.450 532.128
60 371.263 457.290 565.116
ASSUMED PRICE OF ONE DOLLAR ($1.00) OF MONTHLY BENEFIT
Normal Post-Retirement Interest Rate
Retirement ---------------------------------------------
Age 5% 5 1/2% 6%
---------- ------- ------- -------
55 154.431 147.407 140.927
56 151.244 144.407 138.291
57 147.997 141.554 135.592
58 144.696 138.540 132.833
59 141.347 135.475 130.021
60 137.948 132.354 127.150
61 134.503 129.183 124.227
62 131.020 125.970 121.256
63 127.509 122.721 118.246
64 123.979 119.448 115.207
65 120.436 116.156 112.143
66 116.895 112.858 109.066
67 113.363 109.567 105.990
68 109.853 106.279 102.912
69 106.334 102.982 99.818
70 102.800 99.661 96.694
71 99.254 96.323 93.547
72 95.704 92.972 90.381
73 92.155 89.616 87.203
74 88.627 86.271 84.030
75 85.129 82.949 80.871
76 81.673 79.659 77.738
77 78.272 76.416 74.642
78 74.939 73.233 71.599
79 71.657 70.091 68.589
80 68.433 67.000 65.624
81 65.281 63.973 62.714
82 62.214 61.022 59.874
83 59.228 58.144 57.099
84 56.312 55.330 54.382
3-19
<PAGE>
Notwithstanding the provisions of the first paragraph of Section 6.01
hereof, for Plan Years commencing prior to January 1, 1988 the Employer shall
not make contributions on behalf of a Participant under this section after the
Plan Year in which the Participant attains his Normal Retirement Age, except for
contributions required under Section 13.03 hereof in Plan Years in which the
Plan is a Top Heavy Plan. However, for Plan Years commencing after December 31,
1987, or such later date as the Employer may elect, the Employer shall make
contributions on behalf of a Participant under this section after the Plan Year
in which the Participant attains his Normal Retirement Age if so elected
pursuant to Item 8 of the Adoption Agreement.
If pursuant to Item 12 of the Adoption Agreement a Participant is entitled
to have an Employer Contribution made on his behalf for the Plan Year in which
he terminates Service, the amount of such Employer Contribution shall be reduced
on a pro-rata basis for the number of calendar months during such Plan Year
beginning with the first calendar month in which the Participant terminates
Service and each calendar month thereafter.
3-20
<PAGE>
ARTICLE 4
ALLOCATION OF TRUST FUNDS AND PARTICIPANTS' ACCOUNTS
Section 4.01 Allocation of Employer Contributions. On each Valuation Date
other than an interim valuation date specified in Section 4.09 hereof, Employer
contributions shall be allocated as specified in Items 11 and 12 of the Adoption
Agreement.
(a) Elective Deferral Contributions. As of each Valuation Date the Elective
Deferral Contributions with respect to a Participant for the period
since the preceding Valuation Date shall be credited to the
Participant's Elective Deferral Account.
(b) Matching Contributions. As of each Valuation Date, there shall be
credited to the Matching Account of each eligible Participant his
allocable share of the Matching Contribution as provided in Item 8(b)
of the Adoption Agreement. The determination of which Participants are
eligible to share in the Matching Contribution shall be in accordance
with Item 8(b) of the Adoption Agreement.
(c) Employer Contributions.
(1) If the Plan is a profit sharing plan, then any Employer
Contributions (and Forfeitures, if to be allocated in the same
manner as Employer Contributions pursuant to Item 8 of the Adoption
Agreement) to the Plan for the Plan Year ending on such Valuation
Date shall be allocated to the Employer Account of each Participant
who completed the required amount of Service during the Plan Year
and who is still in Service on the Valuation Date. Participants who
complete the required amount of Service during a Plan Year but who
are no longer in Service on the Valuation Date at the end of the
Plan Year, shall be included in or excluded from the allocation on
such Valuation Date according to the election made by the Employer
in Item 12 of the Adoption Agreement. Participants who die, become
disabled or retire during the Plan Year shall be included in or
excluded from the allocation on the Valuation Date at the end of
the Plan Year according to the election made by the Employer in
Item 12 of the Adoption Agreement.
(i) Required Service - Hours Counting Method. For purposes of
non-standardized plans and, for Plan Years commencing prior to
January 1, 1989, standardized plans, if the Plan counts Hours
of Service pursuant to Item 6 of the Adoption Agreement then
the Participant shall be required to complete at least one
thousand
4-1
<PAGE>
(1000) Hours of Service during the Plan Year in order to have
an Employer Contribution made on his behalf. However, in the
event that a Plan Year is of less than twelve (12) months
duration (as described in Section 1.49), then the requirement
for completion of one thousand (1,000) Hours of Service shall
be reduced pro rata, based on the length of such Plan Year.
For purposes of standardized plans for Plan Years commencing
after December 31, 1988, if the Plan counts Hours of Service
pursuant to Item 6 of the Adoption Agreement then the
Participant shall be required to complete at least one (1) Hour
of Service during the Plan Year in order to have an Employer
Contribution made on his behalf.
(ii) Required Service - Elapsed Time Method. If the Plan uses the
"elapsed time" method pursuant to Item 6 of the Adoption
Agreement, then the Participant shall be required to perform an
Hour of Service during the Plan Year in order to have an
Employer Contribution made on his behalf.
(2) If the Plan is a money purchase pension plan or a target benefit
pension plan, then any Employer Contributions (and, as to money
purchase pension plans, Forfeitures, if to be allocated in the same
manner as Employer Contributions pursuant to Item 8 of the Adoption
Agreement) to the Plan for the Plan Year ending on such Valuation
Date shall be allocated on the same basis as the computation
described in the provisions of Section 3.01 and in Item 8 of the
Adoption Agreement.
(3) If the Plan is a profit sharing plan integrated with Social
Security, then for Plan Years commencing after December 31, 1988,
the allocation of Employer Contributions (and Forfeitures, if to be
allocated in the same manner as Employer contributions pursuant to
Item 8 of the Adoption Agreement) shall be made as follows:
(i) First, Employer Contributions (and Forfeitures, if to be
allocated) shall be allocated to each eligible Participant in
the proportion which the sum of his Compensation and his
Compensation in excess of the integration break-point selected
in Item 11(b)(l) of the Adoption Agreement bears to the total
sum of the Compensation and the Compensation in excess of said
integration break-point, paid to all eligible Participants;
provided, however, that
4-2
<PAGE>
no Employee shall receive under this stage of the allocation a
higher percentage of the sum of his Compensation and his excess
Compensation than the percentage specified in Item 11(b)(2) of
the Adoption Agreement.
(ii) Second, the remaining amount to be allocated shall be allocated
to each eligible Participant in the proportion which his
Compensation bears to the total Compensation of all eligible
Participants.
If the Plan is a profit sharing plan not integrated with Social
Security, then for Plan Years commencing after December 31, 1988
the allocation of Employer contributions (and Forfeitures, if to be
allocated in the same manner as Employer contributions pursuant to
Item 8 of the Adoption Agreement) shall be performed as described
in Item 11(a) of the Adoption Agreement.
(4) If the Plan is a profit sharing plan or a money purchase pension
plan (other than a target benefit plan) integrated with Social
Security, and if an Employee's entry date for participation in the
Plan is not the Anniversary Date, then the integration break-point
with respect to the Participant's Compensation selected in the
Adoption Agreement shall, if so indicated by the Employer in its
Adoption Agreement, be prorated in the ratio that the length of the
Participant's participation in the Plan that Plan Year bears to the
length of that entire Plan Year; proration of the integration
break-point shall not be made for Participants whose Service
terminates during the Plan Year. If a Plan Year is of less than
twelve (12) months' duration, then the integration break-point for
the Plan Year shall be prorated in the ratio which the number of
full months in the Plan Year bears to twelve (12).
(d) Qualified Non-elective Contributions. As of each Valuation Date, there
shall be credited to the Qualified Non-elective Account of each
eligible Participant (as provided in Item 8(c) of the Adoption
Agreement) his allocable share of the Qualified Non-elective
Contributions for the Plan Year.
(e) Qualified Matching Contributions. As of each Valuation Date, there
shall be credited to the Qualified Matching Account of each eligible
Participant his allocable share of the Qualified Matching Contribution
as provided in Item 8(d) of the Adoption Agreement. The determination
of which Participants are eligible to share in the Qualified Matching
Contribution shall be in accordance with Item 8(d) of the Adoption
Agreement.
4-3
<PAGE>
(f) Special Sub-accounts. For Plan Years beginning before January 1, 1985,
if a Participant incurs a Break in Service, or for Plan Years beginning
after December 31, 1984, if a Participant incurs five (5) consecutive
Breaks in Service, but later accrues benefits related to Employer
Contributions or Matching Contributions, then separate bookkeeping
subaccounts shall be established under the Employer Account and
Matching Account, as applicable, with respect to the Participant's
pre-break and post-break benefits related to Employer Contributions and
Matching Contributions.
Section 4.02 Forfeitures. If the Plan is a profit sharing plan or a money
purchase pension plan, Forfeitures becoming available for allocation under the
terms of Sections 5.01 and 8.03 hereof shall be reallocated or applied in the
same manner as Employer Contributions described in the provisions of Section
4.01 hereof or, alternatively, shall be used to reduce Employer contributions
for the Plan Year, as selected in Item 8 of the Adoption Agreement.
If the Plan is a target benefit pension plan, Forfeitures becoming
available under the terms of Section 5.01 and 8.03 shall be credited against
Employer Contributions otherwise due as described in the provisions of that
section concerning such pension plans. Forfeitures arising under target benefit
pension plans shall only be used to reduce the contributions of the Employer
which adopted this Plan, subject to Section 4.08 hereof.
Section 4.03 Allocation of Income. On each Valuation Date, the Income to
the Trust Fund during the period since the immediately preceding Valuation Date
shall be computed and shall be allocated to the Accounts of all Participants on
the Valuation Date. Each of such Participant's accounts shall share in this
allocation of Income in the proportion that the balance in such accounts bears
to the total of the balances in the accounts of all such Participants. For
purposes of this section, the balance in an account shall mean:
(a) the value of the account as of the preceding Valuation Date,
plus (b) one-half (1/2) of the amount of Employee Contributions and
Elective Deferral Contributions contributed to the account since the
preceding Valuation Date (except as otherwise provided in Item 9 of
the Adoption Agreement or as provided if an alternative method is
selected as otherwise allowed in this Section 4.03)
minus (c) any withdrawals (including benefit payments, Forfeitures and
payments as described in Section 4.05 hereof, including amounts used
to pay insurance premiums) since the preceding Valuation Date,
4-4
<PAGE>
but not less than zero (0). Alternatively, if approved by the Plan
Administrator, Income may be allocated in any equitable, uniform and
nondiscriminatory manner which is selected for the purpose of recognizing the
timing of contributions, withdrawals, distributions, transfers, Participant or
Employer directed investments or other temporal events affecting account value
as adjustments to account balances.
For purposes of this section only, the term "Participants" shall include
Separated Participants, Retired Participants and Employees who have account
balances but who would not be considered to be Participants because they made no
contributions to the Plan. The accounts on which this allocation of Income is
based shall not include amounts segregated pursuant to Sections 4.11 and 6.03(a)
hereof or Item 9 of the Adoption Agreement, nor the value of any insurance
policies held in the Trust Fund.
Section 4.04 No Vested Rights to Assets. The fact that allocations shall be
made and credited to the Accounts of a Participant shall not vest in such
Participant any right, title or interest in any assets of the Trust, except at
the time or times and upon the terms and conditions expressly set forth in the
Plan.
Section 4.05 Payments. Each Participant's Accounts shall be charged with
any payments made by the Trustee to or for the account of such Participant or
any Beneficiary of such Participant.
Section 4.06 Adjustment to Accounts. As soon as practicable after each
Valuation Date, the value of each of the Participant's accounts shall be
determined by the Plan Administrator (or its agent). Each account shall be equal
to the value of such account as of the last Valuation Date,
(a) plus (as applicable to such account) any credit or allocation of
contributions, any allocation of Forfeitures, any allocation of Income,
and any account credits from insurance contracts, since the last
Valuation Date,
(b) minus (as applicable to such account) any payment (including insurance
contract premiums paid or accrued), withdrawal or Forfeiture from the
account since the last Valuation Date.
Section 4.07 Limitation on Allocations
(a) (1) If the Participant does not participate in, and has never
participated in, another qualified plan or a welfare benefit fund,
as defined in Section 419(e) of the Code, maintained by the
Employer, or an individual medical account, as defined in Section
415(1)(2) of the Code, maintained by the Employer, which provides
an Annual Addition, the amount of Annual Additions which may be
credited to the Participant's Accounts for any Limitation Year
shall not exceed the lesser of the Maximum Permissible Amount or
any other limitation
4-5
<PAGE>
contained in this Plan. If the Employer contribution that would
otherwise be contributed or allocated to the Participant's Accounts
would cause the Annual Additions for the Limitation Year to exceed
the Maximum Permissible Amount, the amount contributed or allocated
shall be reduced so that the Annual Additions for the Limitation
Year shall equal the Maximum Permissible Amount. If the Plan
provides for the allocation of Forfeitures in the same manner as
Employer Contributions or Matching Contributions, then the amount
reflecting this reduction shall be allocated and reallocated to
other Participant accounts in accordance with the Plan formula for
allocating Employer contributions and Forfeitures to the extent
that such allocations do not cause the Annual Additions to any such
Participants' accounts to exceed the lesser of the Maximum
Permissible Amount or any other limitation provided in the Plan.
(2) Prior to determining the Participant's actual Compensation for the
Limitation Year, the Employer may determine the Maximum Permissible
Amount for a Participant on the basis of a reasonable estimation of
the Participant's Compensation for the Limitation Year, uniformly
determined for all Participants similarly situated.
(3) As soon as is administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for the Limitation
Year shall be determined on the basis of the Participant's actual
Compensation for the Limitation Year.
(4) If pursuant to subsection 4.07(a)(3) or as a result of the
allocation of Forfeitures there is an Excess Amount, then such
excess shall be disposed of as follows:
(i) any Employee Contributions, to the extent they would reduce the
Excess Amount, shall be returned to the Participant (the
consent of the Participant or the Participant's Spouse shall
not be required to make this distribution);
(ii) if after the application of paragraph (i) an Excess Amount
still exists, and the Participant is covered by the Plan at the
end of the Limitation Year, then any remaining Excess Amount in
the Participant's Accounts shall be used to reduce Employer
contributions (including any allocation of Forfeitures) for
such Participant in the next Limitation Year, and each
succeeding Limitation Year if necessary;
4-6
<PAGE>
(iii) if after the application of paragraph (i) an Excess Amount
still exists, and the Participant is not covered by the Plan at
the end of a Limitation Year, then the Excess Amount shall be
held unallocated in a suspense account which shall be applied
to reduce future Employer contributions (including any
allocation of Forfeitures) for all remaining Participants in
the next Limitation Year, and each succeeding Limitation Year
if necessary; and
(iv) if a suspense account is in existence at any time during a
Limitation Year pursuant to this section, then it shall not
participate in the allocation of the Trust's investment gains
and losses. If a suspense account is in existence at any time
during a particular Limitation Year, all amounts in the
suspense account must be allocated and reallocated to
Participants' accounts before any employer contributions or any
employee contributions may be made to the plan for that
Limitation Year. Excess amounts may not be distributed to
Participants or former Participants.
(b) (1) This subsection applies if, in addition to this Plan, the
Participant is covered under another qualified defined contribution
Master or Prototype Plan maintained by the Employer, a welfare
benefit fund, as defined in Section 419(e) of the Code, maintained
by the Employer, or an individual medical account, as defined in
Section 415(1)(2) of the Code, maintained by the Employer, which
provides an Annual Addition, during any Limitation Year. The Annual
Additions which may be credited to a Participant's Accounts under
this Plan for any such Limitation Year shall not exceed the Maximum
Permissible Amount reduced by the Annual Additions credited to a
Participant's accounts under the other plans and welfare benefit
funds for the same Limitation Year. If the Annual Additions with
respect to the Participant under other defined contribution plans
and welfare benefit funds maintained by the Employer are less than
the Maximum Permissible Amount and the Employer contribution that
would otherwise be contributed or allocated to the Participant's
Account under this Plan would cause the Annual Additions for the
Limitation Year to exceed this limitation, then the amount
contributed or allocated shall be reduced so that the Annual
Additions under all such plans and funds for the Limitation Year
shall equal the Maximum Permissible Amount. If the Plan provides
for the allocation of Forfeitures in the same manner as Employer
Contributions or Matching Contributions, then the
4-7
<PAGE>
amount reflecting this reduction shall be allocated and reallocated
to other Participant Accounts in accordance with the Plan formula
for allocating Employer contributions and Forfeitures to the extent
that such allocations do not cause the Annual Additions to any such
Participants' Accounts to exceed the lesser of the Maximum
Permissible Amount or any other limitation provided in the Plan. If
the Annual Additions with respect to the Participant under other
defined contribution plans and welfare benefit funds in the
aggregate are equal to or greater than the Maximum Permissible
Amount, then no amount shall be contributed or allocated to the
Participant's Accounts under this Plan for the Limitation Year.
(2) Prior to determining the Participant's actual Compensation for the
Limitation Year, the Employer may determine the Maximum Permissible
Amount for a Participant in the manner described in subsection
4.07(a)(2) hereof.
(3) As soon as is administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for the Limitation
Year shall be determined on the basis of the Participant's actual
Compensation for the Limitation Year.
(4) If, pursuant to subsection 4.07(b)(3) or as a result of the
allocation of Forfeitures, a Participant's Annual Additions under
this Plan and such other plans would result in an Excess Amount for
a Limitation Year, the Excess Amount shall be deemed to consist of
the Annual Additions last allocated; except that Annual Additions
attributable to a welfare benefit fund or individual medical
account shall be deemed to have been allocated first regardless of
the actual allocation date.
(5) If an Excess Amount was allocated to a Participant on an allocation
date of this Plan which coincides with an allocation date of
another plan, the Excess Amount attributed to this Plan shall be
the product of
(i) the total Excess Amount allocated as of such date, times
(ii) the ratio of (i) the Annual Additions allocated to the
Participant for the Limitation Year as of such date under this
Plan to (ii) the total Annual Additions allocated to the
Participant for the Limitation Year as of such date under this
and all the other qualified Master or Prototype defined
contribution plans.
4-8
<PAGE>
(6) Any Excess Amount attributed to this Plan shall be disposed of in
the manner described in subsection 4.07(a)(4).
(c) If the Participant is covered under another qualified defined
contribution plan maintained by the Employer which is not a Master or
Prototype Plan, Annual Additions which may be credited to the
Participant's Account under this Plan for any Limitation Year shall be
limited in accordance with subsections 4.07(b)(1) through 4.07(b)(6) as
though the other plan were a Master or Prototype Plan unless the
Employer provides other limitations in Item 21 of the Adoption
Agreement.
(d) If the Employer maintains, or at any time maintained, a qualified
defined benefit plan covering any Participant in this Plan, the sum of
the Participant's Defined Benefit Fraction and Defined Contribution
Fraction shall not exceed one (1.0) in any Limitation Year. The Annual
Additions which may be credited to the Participant's account under the
Plan for any Limitation Year shall be limited in accordance with Item
21 of the Adoption Agreement.
(e) For purposes of this section and Articles 13 and 14 hereof, together
with Items 20 and 21 of the Adoption Agreement, the following terms
shall be defined as follows:
(1) "Annual Additions" shall mean the sum of the following amounts
credited to a Participant's Account for the Limitation Year:
(i) Employer contributions;
(ii) Employee Contributions; and
(iii) Forfeitures.
In addition, amounts allocated after March 31, 1984, to an
individual medical account, as defined in Section 415(1)(2) of the
Code, which is a part of a pension or annuity plan maintained by
the Employer shall be treated as Annual Additions to a qualified
defined contribution plan. Furthermore, amounts derived from
contributions paid or accrued after December 31, 1985, in taxable
years ending after such date, which are attributable to
post-retirement medical benefits allocated to the separate account
of a Key Employee, as that term is defined in Section 13.02(c)
hereof, and pursuant to Section 419A(d)(3) of the Code under a
welfare benefit fund, as defined in Section 419(e) of the Code,
maintained by the Employer shall be treated as Annual Additions to
a qualified defined contribution plan.
4-9
<PAGE>
For this purpose, any Excess Amount applied under subsections
(a)(4) and (b)(6) in the Limitation Year to reduce Employer
contributions shall be considered Annual Additions for such
Limitation Year.
(2) "Compensation" shall mean a Participant's earned income, wages,
salaries, and fees for professional services and other amounts
received for personal services actually rendered in the course of
employment with the Employer maintaining the Plan (including, but
not limited to, commissions paid salesmen, compensation for
services on the basis of a percentage of profits, commissions on
insurance premiums, tips and bonuses), and excluding the following:
(i) Employer contributions to a plan of deferred compensation
which are not includible in the Employee's gross income for
the taxable year in which contributed, or Employer
contributions under a simplified employee pension plan to the
extent such contributions are deductible by the Employee, or
any distributions from a plan of deferred compensation;
(ii) amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by the
Employee either becomes freely transferable or is no longer
subject to a substantial risk of forfeiture;
(iii) amounts realized from the sale, exchange or other disposition
of stock acquired under a qualified stock option; and
(iv) other amounts which received special tax benefits, or
contributions made by the Employer (whether or not under a
salary reduction agreement) towards the purchase of an
annuity described in Section 403(b) of the Code (whether or
not the amounts are actually excludable from the gross income
of the Employee).
For purposes of applying the limitations of this article,
Compensation for a Limitation Year is the Compensation actually
paid or includible in gross income during such year.
(3) "Defined Benefit Fraction" shall mean a fraction, the numerator of
which is the sum of the Participant's projected annual benefits
under all the defined benefit plans (whether or not terminated)
maintained by the Employer, and the denominator of which is the
lesser of one hundred twenty-five percent (125%) of
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the dollar limitation determined for the Limitation Year under
Section 415(b) and (d) of the Code or one hundred forty percent
(140%) of the highest average Compensation which may be taken into
account under Section 415(b)(1)(B) with respect to an individual
under the plan, including any adjustments under Section 415(b) of
the Code.
Notwithstanding the above, if the Participant was a Participant as
of the first day of the first Limitation Year beginning after
December 31, 1986, in one (1) or more defined benefit plans
maintained by the Employer which were in existence on May 6, 1986,
the denominator of this fraction shall not be less than one hundred
twenty-five percent (125%) of the sum of the annual benefits under
such plans which the Participant had accrued as of the close of the
last Limitation Year beginning before January 1, 1987, disregarding
any changes in the terms and conditions of the Plan after May 5,
1986. The preceding sentence applies only if the defined benefit
plans individually and in the aggregate satisfied the requirements
of Code Section 415 for all Limitation Years beginning before
January 1, 1987.
(4) "Defined Contribution Dollar Limitation" shall mean $30,000 or if
greater, one-fourth of the defined benefit dollar limitation set
forth in Section 415(b)(1) of the Code as in effect for the
Limitation Year.
(5) "Defined Contribution Fraction" shall mean a fraction, the
numerator of which is the sum of the Annual Additions to the
Participant's Accounts under all the defined contribution plans
(whether or not terminated) maintained by the Employer for the
current and all prior Limitation Years, (including the Annual
Additions attributable to the Participant's nondeductible Employee
contributions to all defined benefit plans, whether or not
terminated, maintained by the Employer, and the Annual Additions
attributable to all welfare benefits funds, as defined in Section
419(e) of the Code, and individual medical accounts, as defined in
Section 415(1)(2) of the Code, maintained by the Employer), and the
denominator of which is the sum of the maximum aggregate amounts
for the current and all prior Limitation Years of service with the
Employer (regardless of whether a defined contribution plan was
maintained by the Employer). For purposes hereof, the maximum
aggregate amount in any Limitation Year is the lesser of one
hundred twenty-five percent (125%) of the dollar limitation
determined under sections 415(b) and (d) of the Code in effect
under Section 415(c)(1)(A) of the Code or
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<PAGE>
thirty-five percent (35%) of the Participant's Compensation for
such year.
If the Employee was a Participant as of the end of the first day of
the first Limitation Year beginning after December 31, 1986, in one
(1) or more defined contribution plans maintained by the Employer
which were in existence on May 6, 1986, the numerator of this
fraction shall be adjusted if the sum of this fraction and the
Defined Benefit Fraction would otherwise exceed one (1.0) under the
terms of this Plan. Under the adjustment, an amount equal to the
product of (i) the excess of the sum of the fractions over one
(1.0) times (ii) the denominator of this fraction, shall be
permanently subtracted from the numerator of this fraction. The
adjustment is calculated using the fractions as they would be
computed as of the end of the last Limitation Year beginning before
January 1, 1987, and disregarding any changes in the terms and
conditions of the Plan made after May 5, 1986, but using the Code
Section 415 limitation applicable to the first Limitation Year
beginning on or after January 1, 1987.
The Annual Addition for any Limitation Year beginning before
January 1, 1987, shall not be recomputed to treat all Employee
contributions as Annual Additions.
(6) "Employer" shall mean the Employer that adopts this Plan, and all
members of a Controlled Group (within the meaning of that term as
modified by Section 415(h) of the Code) of which the Employer is a
member.
(7) "Excess Amount" shall mean the excess of the Participant's Annual
Additions for the Limitation Year over the Maximum Permissible
Amount.
(8) "Highest Average Compensation" shall mean the average Compensation
for the three (3) consecutive Years of Service with the Employer
that produces the highest average. A Year of Service with the
Employer is the twelve (12) consecutive month period defined in
Section 1.75 or, in another qualified defined contribution plan
being considered hereunder, that twelve (12) consecutive month
period defined therein for purposes of determining the accrual of
benefits. For purposes of any qualified defined benefit pension
plan being considered hereunder, a Year of Service shall mean the
twelve (12) consecutive month period defined therein for purposes
of determining the accrual of benefits.
(9) "Limitation Year" shall mean a calendar year, or the twelve (12)
consecutive month period ending on the
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date elected by the Employer in Item 1(d) of the Adoption
Agreement. All qualified plans maintained by the Employer must use
the same Limitation Year. If the Limitation Year is amended to a
different twelve (12) consecutive month period, then the new
Limitation Year shall begin on a date within the Limitation Year in
which the amendment is made.
(10) "Master or Prototype Plan" ahall mean a plan the form of which is
the subject of a favorable opinion letter from the Internal Revenue
Service.
(11) "Maximum Permissible Amount" shall mean the maximum Annual Addition
that may be contributed or allocated to a Participant's Account
under the Plan for any Limitation Year and shall not exceed the
lesser of:
(i) the Defined Contribution Dollar Limitation, or
(ii) twenty-five percent (25%) of the Participant's Compensation
for the Limitation Year.
The Compensation limitation referred to in (ii) shall not apply to
any contribution for medical benefits (within the meaning of
Section 401(h) or Section 419A(f)(2) of the Code) which is
otherwise treated as an Annual Addition under section 415(1)(1) or
419A(d)(2) of the Code.
If a short Limitation Year is created because of an amendment
changing the Limitation Year to a different twelve (12) consecutive
month period, then the Maximum Permissible Amount shall not exceed
the Defined Contribution Dollar Limitation multiplied by the
following fraction:
number of months in the short Limitation Year
---------------------------------------------
twelve (12)
(12) "Projected Annual Benefit" shall mean the annual retirement benefit
(adjusted to an actuarially equivalent straight life annuity if
such benefit is expressed in a form other than a straight life
annuity or Qualified Joint and Survivor Annuity) to which the
Participant would be entitled under the terms of the plan assuming:
(i) the Participant shall continue employment until Normal
Retirement Age under the plan (or current age, if later), and
(ii) the Participant's Compensation for the current Limitation Year
and all other relevant factors used to determine benefits
under the plan shall
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remain constant for all future Limitation Years.
Section 4.08 Controlled Group and Affiliated Employer Contributions and
Forfeitures. In the event that two (2) or more members of a Controlled Group
establish a Plan by adopting this Plan, each member of the Controlled Group
shall or shall not be considered to be a separate Employer for purposes of
allocating Employer contributions and Forfeitures, as provided in Item 24 of the
Adoption Agreements; provided, however, that a single Trust Fund may be used for
the investment of the funds of the Plan.
If an Adopting Employer is affiliated with another Adopting Employer
only for purposes of sponsoring this Plan, but such are not members of a
Controlled Group, then for purposes of allocating Employer contributions and
Forfeitures, such Employers shall be considered to be separate Employers;
provided, however, that a single Trust Fund may be used for the investment of
the funds of the Plan.
Section 4.09 Interim Valuations. Notwithstanding anything to the
contrary expressed or implied herein, the Plan Administrator may direct a
special Valuation Date. Such special Valuation Date shall be deemed equivalent
to a regular Valuation Date. Interim valuations, if any, shall be made on a
nondiscriminatory and uniform basis.
Section 4.10 Insurance Premiums on Separated Participants. In the event
that the Trustee, as directed by the Plan Administrator, pays insurance premiums
during a Plan Year on behalf of a Participant who subsequently terminates his
Service during such Plan Year, and at the following Valuation Date the Separated
Participant's Employer Account includes less than the amount of the insurance
premiums paid, then the amount of such deficiency shall be allocated to the
Employer Account of the Separated Participant. This special allocation shall be
made from Employer contribution or from Forfeitures for the Plan Year, or from
both, and only the remainder of such Employer contribution or Forfeitures shall
be allocated pursuant to the terms of Sections 4.01 and 4.02 hereof.
Section 4.11 Election of Segregated Account. In its sole discretion, the
Plan Administrator may make available to all Participants, on a uniform and
non-discriminatory basis, a segregated account election.
Subject to approval by the Plan Administrator, any Participant may elect
to have his Accounts invested in a segregated account. Such segregated account
shall remain a part of the Trust Fund, but shall be separately invested in
certificates of deposit, money market certificates, collective investment
trusts, other short-term debt security instruments or any other investments
acceptable to the Trustee, with all investment income on such investments
credited to the segregated account and all disbursements to, or on behalf of,
the Participant charged thereto.
A Participant may make the election provided for under this section only
once; such election shall become effective on the first (1st) day of the Plan
Year immediately following the date of the election, shall be irrevocable for a
five (5) year period unless a revocation is permitted
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<PAGE>
by the Trustee and shall be effective for all contributions made or allocated
on behalf of the Participant during the term of the election. The Participant's
election shall be effective for the entire amount of any of his Accounts with
respect to which the election is made.
The form and manner of such election shall be prescribed by the Plan
Administrator.
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<PAGE>
ARTICLE 5
WITHDRAWALS AND LOANS
Section 5.01 In-Service Withdrawals. Withdrawals shall be permitted
under a Plan if, and to the extent, elected by an Employer in Item 14 of the
Adoption Agreement and subject to the provisions of this section. All
requirements imposed by the Adoption Agreement as completed, and all decisions
made by the Employer pursuant thereto, shall be applied in a uniform and
nondiscriminatory manner. Subject to any restrictions set forth in the Adoption
Agreement, withdrawals shall be made at such time or times, and in such form and
manner, as uniformly and non-discriminatorily established by the Employer.
In-service withdrawals shall be subject to the spousal consent
requirements of Sections 6.03(c) and 7.02(c) hereof, which consent shall be
obtained within ninety (90) days prior to the date of the withdrawal.
Notwithstanding the foregoing, however, if the special rule for certain profit
sharing plan Participants set forth in Sections 6.03(d) and 7.02(c)(3) hereof
applies to a Participant, then such spousal consent requirement shall not apply
to that Participant.
(a) Withdrawals of Contributions Made by the Employer.
(1) If the Plan is a profit sharing plan, and if withdrawals from
a Participant's Employer Account or Matching Account are
permitted under the Adoption Agreement, then, unless a
withdrawal therefrom is permitted in the case of hardship, a
withdrawal from such account by an Employee shall be limited
to contributions which have been allocated to such account for
two (2) years; provided, however, that if the Employee has
been a Participant for five (5) or more years, then this
preceding two (2) year limitation on withdrawals shall not
apply; and further provided, however, that in no event shall a
withdrawal of amounts in excess of a Participant's vested
interest in such account be permitted hereunder.
(2) If withdrawals from a Participant's Elective Deferral Account
are permitted under Item 14 of the Adoption Agreement, such
distributions may be made on account of financial hardship if
the distribution is necessary in light of the immediate and
heavy financial needs of the Participant, provided such
Participant lacks other available resources.
The amount of any hardship withdrawal granted pursuant to this
subsection (a)(2) shall be limited to the lesser of (i) the
actual amount of the Elective Deferral Contributions made to
the Participant's or former Participant's Elective Deferral
Account (and
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<PAGE>
Income thereon accrued as of December 31, 1988), less the
amount of Elective Deferral Contributions previously
withdrawn; and (ii)the amount required to relieve the
immediate and heavy financial need, less the amount that is
reasonably available to the Participant or former Participants
from other sources to satisfy the need. Hardship distributions
made pursuant to this Section 5.01(a)(2) in Plan Years which
begin before January 1, 1989, may also be made from the
Participant's Qualified Non-elective Account and may include
any Income allocated to the Elective Deferral Account.
For periods prior to April 1, 1989, the determination of the
existence of financial hardship, and the amount required to be
distributed to meet the need created by the hardship, shall be
made by a person or persons designated by the Employer (unless
a different person or persons are given authority elsewhere in
the Plan to approve hardship distributions). All
determinations regarding financial hardship shall be made in
accordance with written procedures that are established by the
person or persons described above, and applied in a uniform
and nondiscriminatory manner. Such written procedures shall
specify the requirements for requesting and receiving
distributions on account of hardship, including what forms
must be submitted and to whom. All determinations regarding
financial hardship must be made in accordance with objective
criteria set forth in the Adoption Agreement. Such
determinations must also comply with applicable regulations
under the Code.
For periods after March 31, 1989, the immediate and heavy
financial needs for which a hardship may be granted shall be
limited to the following:
(i) Medical expenses described in section 213(d) of the Code
which are incurred by the Participant or former
Participant, his spouse, or his dependents (as defined
in section 152 of the Code);
(ii) Purchase (excluding mortgage payments) of a principal
residence of the Participant or former Participant;
(iii) Payment of tuition for the next semester or quarter of
post-secondary education for the Participant or former
Participant, his spouse, children, or dependents;
(iv) The need to prevent the eviction of the Participant or
former Participant from his
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<PAGE>
principal residence or foreclosure on the mortgage of
his principal residence.
To qualify for a hardship withdrawal for periods after March
31, 1989, the Participant or former Participant must satisfy
the following requirements:
(i) The Participant or former Participant must have obtained
all distributions, other than hardship distributions,
and all nontaxable loans available under all plans
maintained by the Employer,
(ii) The Participant's or former Participant's elective
contributions under the Plan, and all other plans
maintained by the Employer, will be suspended for twelve
(12) months after receipt of the hardship distribution,
and
(iii) The Participant may not make elective contributions
under the Plan, and all other plans maintained by the
Employer, for the taxable year immediately following the
taxable year of the hardship distribution in excess of
the applicable limit under Code Section 402(g) for such
next taxable year less the amount of such Participant's
elective contributions for the taxable year of the
hardship distribution.
A Participant who has had to suspend Elective Deferral
Contributions to the Plan pursuant to this Section shall
be allowed to resume such contributions on the date
indicated in Item 8(a)(4) of the Adoption Agreement
which follows the twelve (12) month suspension period.
(b) Withdrawals from Contributions Made by the Participant. If
withdrawals of a Participant's mandatory Employee Contributions
from his Employee Account are permitted under Item 14 of the
Adoption Agreement, then a Participant who receives such a
withdrawal and who does not have at least a fifty percent (50%)
vested interest in his Employer Account and Matching Account
determined as of the date of the withdrawal shall, if so selected
by the Employer in such Item 14, have the balance of that portion
of his Employer Account and Matching Account not attributable to
minimum allocations in Top Heavy Plan Years treated as a Forfeiture
for the Plan Year in which the withdrawal is received.
If withdrawals of a Participant's voluntary Employee Contributions
are permitted under the Adoption Agreement, then a Participant
receiving such a withdrawal shall not be permitted to make further
voluntary Employee Contributions for a period not to be less than
six (6) months.
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<PAGE>
The Participant may withdraw any part of the Voluntary Deductible
Contributions Account or Rollover Account by making a written
application to the Plan Administrator at any time. However, if at
the time the distribution is received the Participant has not
attained age fifty nine and one-half (59-l/2) or is not subject to
Disability, then the Participant may be subject to a federal income
tax penalty unless the distribution is rolled over to a qualified
plan or Individual Retirement Account within sixty (60) days of the
date of distribution.
Section 5.02 Loans to Participants and Beneficiaries. If the loan option
is elected in Item 13 of the Adoption Agreement, the Plan Administrator, upon
receipt of written application of a Participant or Beneficiary in such manner
and form as required by the Plan Administrator, shall authorize and direct the
Trustee to make a loan to the Participant or Beneficiary from the Trust Fund,
provided the Plan's loan requirements of subsections (a) and (b), as applicable,
and subsection (c) are satisfied. For purposes of this Section 5.02 the term
"Participant" shall include former Participants.
(a) For loans granted or renewed on or before October 18, 1989, the
Plan's loan requirement shall be those requirements stated in this
subsection 5.02(a), subject to uniform rules and regulations which
may be promulgated by the Plan Administrator with respect to the
amount of loans, interest rates, maturity dates and security. If
the loan is to be a directed investment pursuant to Section 10.11,
then the amount of the loan shall be considered to be an asset only
of the Accounts of the borrower, and not of the Accounts of any
other person. However, the following restrictions shall apply to
all loans.
(1) Loans shall be made available to all Participants and
Beneficiaries (including for purposes of this Section 5.02
Spouses of deceased Participants entitled to a death benefit
under Section 7.02 hereof) on a reasonably equivalent basis.
(2) Loans shall not be made available to Highly Compensated
Employees in an amount greater than the amount made available
to other Employees.
(3) Loans shall be adequately secured and bear a reasonable
interest rate.
(4) No loan shall exceed the value of the Vested Account Balance
of the Participant or Beneficiary.
(5) If the Plan is not subject to the special rule of Section
6.03(d), a Participant must obtain the consent of his Spouse,
if any, to use of the account balance as security for the
loan. Spousal consent shall be obtained no earlier than the
beginning of the ninety
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<PAGE>
(90)-day period that ends on the date on which the loan is to
be so secured. The consent must be in writing, must
acknowledge the effect of the loan, and must be witnessed by
the Plan Administrator or its representative or a notary
public. Such consent shall thereafter be binding with respect
to the consenting Spouse or any subsequent Spouse with respect
to that loan. A new consent shall be required if the account
balance is used for renegotiation, extension, renewal, or
other revision of the loan.
(6) In the event of default, foreclosure on a note which evidences
the debt created by a loan and which is secured by account
balances, and attachment of such security, shall not occur
until a distributable event occurs in the Plan.
(7) No loans shall be made to any shareholder-employee,
Owner-Employee, or Family Member or a Corporation controlled
by a shareholder-employee or Owner-Employee through ownership
directly or indirectly, of fifty percent (50%) or more of the
total value of shares of classes of stock of the Corporation.
For purposes of this requirement, a shareholder-employee means
an Employee or officer of an electing small business
(Subchapter S) corporation who owns (or is considered as
owning within the meaning of Section 318(a)(1) of the Code),
on any day during the taxable year of such corporation, more
than five percent (5%) of the outstanding stock of the
corporation.
Subject to the preceding restrictions, the rate of interest on each
such loan shall be determined by the Plan Administrator
according to rules of uniform application. The rates of
interest on loans may be changed from time to time even though
lower or higher rates have been previously charged. Any such
loan or loans shall be repaid by the borrower within such time
or in such manner as the Plan Administrator may determine. In
the event that the Participant or his Spouse or Beneficiary
becomes entitled to a benefit under the Plan, the Plan
Administrator may cause the Trustee to deduct the total unpaid
balance of such loan, plus interest owed thereon, or any
portion thereof, from any distribution from the Trust Fund to
which the Participant, his Spouse or his Beneficiary shall
become entitled, provided that, if applicable, a valid spousal
consent has been obtained in accordance with subsection
5.02(a)(5). In the event that the amount of such distribution
is not sufficient to repay the remaining balance of such loan,
the Participant shall be liable for and shall continue to make
payments on any such balance still due from him. In no event
shall any distribution be made to a Participant which would
reduce the balance of his Accounts below the outstanding
balance of the loan.
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<PAGE>
(b) For loans granted or renewed after October 18, 1989, the Plan's
loan requirements shall be those requirements stated in this
Section 5.02(b); provided, however, that if elected in Item 13 of
the Adoption Agreement the Plan Administrator may adopt alternative
requirements for this loan program. If alternate requirements for
this loan program are adopted, those requirements shall be
documented in a written attachment to the Adoption Agreement which
shall form a part of the Plan and which shall be signed by the Plan
Administrator and designated as Attachment B.
Attachment B shall include, but need not be limited to, the
following:
(1) The identity of the person or positions authorized to
administer the loan program;
(2) A procedure for applying for loans;
(3) The basis on which loans will be approved or denied;
(4) Limitations (if any) on the types and amount of loans offered;
(5) The procedure under the program for determining a reasonable
rate of interest;
(6) The types of collateral which may secure a Plan loan; and
(7) The events constituting default and the steps that will be
taken to preserve Plan assets in the event of such default.
If alternative requirements are not elected, the following
standard requirements shall apply to all loans.
(i) Loans shall be a directed investment pursuant to Section 10.11
and pursuant to that section the amount of the loan shall be
considered to be an asset of such person's Accounts only, and
not of the Accounts of any other person.
(ii) Loans shall be made available to all Participants and
Beneficiaries (including for purposes of this Section 5.02
Spouses of deceased Participants entitled to a death benefit
under Section 7.02 hereof) on a reasonably equivalent basis,
taking into consideration the size of the loan requested, the
size of the borrower's Vested Account Balance, and the
borrower's ability to repay the loan. Loans to former
Participants with a Vested Account Balance and Beneficiaries
may be made on different terms and conditions than for active
Participants where such
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<PAGE>
terms and conditions are based solely on factors that are
legally considered by commercial entities in the business of
making similar loans. A loan of less than the minimum amount
(not to exceed $1,000), as elected in Item 13 of the Adoption
Agreement, will not be allowed.
(iii) Loans shall not be made available to Highly Compensated
Employees in an amount greater than the amount made available
to other Employees.
(iv) The Plan Administrator shall determine the adequacy and amount
of security required for each loan. In making these
determinations the Plan Administrator shall consider the type
and amount of security which would be required in the case of
an otherwise identical transaction in a normal commercial
setting between unrelated parties on arm's-length terms. A
portion of a borrower's Vested Account Balance may be used as
security for a loan. However, no more than fifty percent (50%)
of the borrower's Vested Account Balance may be used as
security for the outstanding balance of all loans under this
Plan made to such borrower. If, pursuant to the election in
Item 13 of the Adoption Agreement, the total outstanding
balances of all loans under the Plan to the borrower is
permitted to exceed fifty percent (50%) of the borrower's
Vested Account Balance the Plan Administrator shall require
additional security. Such additional collateral shall take the
form of such real or personal property as the Plan
Administrator shall determine adequately secures the loan.
(v) Loans shall bear a reasonable interest rate which shall be
equal to the interest rate charged by a lending institution
for a loan which would be made under similar circumstances.
(vi) If the Plan is not subject to the special rule of Section
6.03(d), a Participant must obtain the consent of his Spouse,
if any, to use of the the account balance as security for the
loan. Spousal consent shall be obtained no earlier than the
beginning of the ninety (90)-day period that ends on the date
on which the loan is to be so secured. The consent must be in
writing, must acknowledge the effect of the loan, and must be
witnessed by the Plan Administrator or its representative or a
notary public. Such consent shall thereafter be binding with
respect to the consenting Spouse or any subsequent Spouse with
respect to that loan. A new consent shall be required if the
account balance is used for renegotiation, extension, renewal,
or other revision of the loan.
(vii) A Participant who is granted a loan from the Plan shall be
required to make payments on such loan through mandatory
payroll deduction. In the event a borrower makes any payment
required hereunder more
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<PAGE>
than fifteen (15) days after the date on which it is due, such
payment shall be increased by the amount of interest accruing
on the unpaid principal balance from the due date until the
date of payment. The borrower shall be in default if any
payment required hereunder is not made by the date ninety (90)
days after it is due, or if the borrower is adjudicated as
bankrupt, makes an assignment for the benefit of creditors, or
files a petition for relief under the Bankruptcy Act. In the
event of a default, all remaining installment payments on the
loan shall be immediately due and payable. In the event that
the Participant or his Spouse or Beneficiary becomes entitled
to a benefit under the Plan, then if a valid spousal consent
has been obtained in accordance with subsection 5.02(e), the
Plan Administrator may cause the Trustee to deduct the total
unpaid balance of such loan, plus interest owed thereon, or
any portion thereof, from any distribution from the Trust Fund
to which the Participant, his Spouse or his Beneficiary shall
become entitled. In the event that the amount of such
distribution is not sufficient to repay the remaining balance
of such loan, the borrower shall be liable for and shall
continue to make payments on any such balance still due from
him. In no event shall any distribution be made to a borrower
which would reduce the balance of his Accounts below the
outstanding balance of the loan. In the event of default,
foreclosure on a note which evidences the debt created by a
loan and which is secured by account balances, and attachment
of such security, shall not occur until a distributable event
occurs in the Plan.
(viii) No loans shall be made to any shareholder-employee,
Owner-Employee, or Family Member or a Corporation controlled
by a shareholder-employee or Owner-Employee through ownership,
directly or indirectly, of fifty percent (50%) or more of the
total value of shares of classes of stock of the Corporation.
For purposes of this requirement, a shareholder-employee means
an Employee or officer of an electing small business
(Subchapter S) corporation who owns (or is considered as
owning within the meaning of Section 318(a)(1) of the Code),
on any day during the taxable year of such corporation, more
than five percent (5%) of the outstanding stock of the
corporation.
(c) Loans made on or before December 31, 1986, shall be repaid
according to their terms. If a loan which was made on or before
December 31, 1986, is extended, renegotiated or renewed after that
date, the loan shall be considered as first made on the date of
extension, renegotiation or renewal. No loan to any Participant or
Beneficiary shall be made after December 31, 1986, to the extent
that such loan when added to the outstanding balance of all other
loans to the Participant or Beneficiary would exceed the lesser of
(i) fifty thousand dollars ($50,000) reduced by the excess (if any)
of the highest outstanding balance of
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<PAGE>
loans during the one (1) year period ending on the day before the
loan is made, over the outstanding balance of loans from the Plan
on the date the loan is made, or (ii) one-half (1/2) the Vested
Account Balance of such person in the Plan or, if greater, the
total Vested Account Balance of such person up to ten thousand
dollars ($10,000). For the purpose of the preceding limitation, all
loans from all plans of the Employer and other members of a
Controlled Group shall be aggregated. Furthermore, any loan shall
by its terms that require repayment (principal and interest) be
amortized in level payments, no less frequently than quarterly,
over a period not extending beyond five (5) years from the date of
the loan, unless such loan is used to acquire a dwelling unit which
within a reasonable time (determined at the time the loan is made)
shall be used as the principal residence of the Participant. An
assignment or pledge of any portion of the Participant's interest
in the Plan and a loan, pledge, or assignment with respect to any
insurance contract purchased under the Plan, shall be treated as a
loan under this section.
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ARTICLE 6
RETIREMENT BENEFITS
Section 6.01 Retirement. As of his Normal Retirement Date, a Participant
may retire from Service or he may elect to continue in Service, subject to the
Employer's retirement policy, if any. If such Participant continues in Service,
then he shall continue to be treated in all respects as a Participant until his
actual retirement. For Plan Years commencing before January 1, 1989, no
retirement benefit shall be payable until actual retirement unless such
Participant who could retire requests that his retirement benefit commence
before his actual retirement and the Plan Administrator, at its sole discretion,
permits retirement benefits to commence pursuant to such request. For Plan Years
commencing after December 31, 1988, no retirement benefit shall be payable until
actual retirement unless such Participant who could retire requests that his
retirement benefit commence before his actual retirement and, pursuant to the
election under Item 18 of the Adoption Agreement, the Plan permits retirement
benefits to commence pursuant to such request.
If early retirement is allowed under the provisions of Item 18(b) of the
Adoption Agreement, then the retirement of a Participant who satisfies the
requirements for early retirement and who elects to retire before his Normal
Retirement Date shall be effective on the date so elected. If such a Participant
continues in Service, then he shall be treated in all respects as a Participant
until his actual retirement, and no retirement benefit shall be payable prior to
his Normal Retirement Date. If a Participant separates from Service before
satisfying the age requirement, if any, for early retirement, but has satisfied
the Service requirement, if any, then the Participant shall be entitled to elect
an early retirement benefit upon satisfaction of such age requirement.
Section 6.02 Retirement Benefits. Upon attainment of Normal Retirement
Age, or upon eligibility for early retirement if permitted under the Plan, a
Participant shall be one hundred percent (100%) vested in his Accounts. Upon
retirement following attainment of his Normal Retirement Age, or upon early
retirement pursuant to Item 18(b) of the Adoption Agreement, a Participant shall
be entitled to receive as the value of his retirement benefit hereunder the
amounts in his Accounts, determined on the Valuation Date immediately preceding
the payment of his benefits, plus any contributions, or Income gain, allocated
to his Accounts after such Valuation Date and less any payments made from his
Accounts, or Income loss allocated against the Accounts, since such preceding
Valuation Date.
Section 6.03 Payment of Retirement Benefits.
(a) In General. The normal form of payment of the value of the
retirement benefit shall be as set forth in subsection (b) or (c)
hereof. In lieu of the normal form of retirement benefit payment
provided therein, a Participant may elect in writing, subject to
(if applicable) the qualified election requirements set forth in
subsection (c) hereof,
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to have his benefit paid or applied in accordance with one (1), or
a combination, of the optional forms of benefit payment described
hereinafter if available pursuant to the Employer's election in
Item 19 of the Adoption Agreement; provided, however, that such
option shall comply with the form of payment limitations set forth
in Section 6.07 hereof. For Plan Years beginning prior to January
1, 1989, the Participant's election of an optional form of benefit
payment shall be subject to the approval of the Plan Administrator,
if allowed by the Employer's prior plan document.
(1) Installments. If elected by the Employer in Item 19 of the
Adoption Agreement, the benefit may be paid or applied in
monthly, quarterly, semiannual or annual installments as
nearly equal as practicable for a period not to exceed that
permitted under Section 6.07(c) hereof.
For Plan Years beginning before January 1, 1989, such
installments shall be made either from a segregated fund set
aside on his behalf if requested by the Participant or,
without regard to any such request, from the Trust Fund
without such segregation at the election of the Plan
Administrator.
For Plan Years beginning on or after January 1, 1989, such
installments shall be made either from a segregated fund or
from the Trust Fund without such segregation, at the election
of the Participant. If no election is made, such installment
shall be made from the Trust Fund without segregation of such
amount.
(2) Annuities. If elected by the Employer in Item 19 of the
Adoption Agreement, or if payment in the form of a Qualified
Joint and Survivor Annuity is required by this Plan, then the
benefit may be paid in the form of an annuity involving life
contingencies purchased from a Life Insurance Company pursuant
to Section 6.09.
(3) Single Sum. If elected by the Employer in Item 19 of the
Adoption Agreement, then an optional form of benefit payment
may be the benefit paid in a single sum.
(4) Other Options. The Plan shall offer the additional optional
forms of payment as described in Item 19 of the Adoption
Agreement, if any, provided such optional forms satisfy the
requirements of Section 401(a) of the Code.
Subject to the time limitations set forth in Sections 6.06 and 6.07
hereof, the benefit commencement date of a Retired
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Participant shall be no later than as soon as practicable after
the later of the following occurs (or as soon thereafter as
determinable): (i) the date the Retired Participant attains
his Normal Retirement Age, (or, if earlier, the date the
Participant elects to receive his early retirement benefit
after qualifying for early retirement, if permitted, under the
Plan), or (ii) the date his Service terminates. However, still
subject to the time limitations set forth in Sections 6.06 and
6.07 hereof, if the former Participant is to receive an
allocation pursuant to Item 12 of the Adoption Agreement for
the Plan Year in which his Service terminated, then the
retirement benefit shall be paid after such time as all
Employer contributions for such Plan Year have, in fact, been
allocated.
The retirement benefit election period shall be the ninety (90)-day
period ending on the Annuity Starting Date. Any election
hereunder shall be in writing and in such form as the Plan
Administrator shall uniformly and nondiscriminatorily require.
If a Retired Participant dies while benefit payments are being made
in accordance with option (1) herein, then payment shall be made to
the extent of the unpaid installments to his Beneficiary, or if the
Beneficiary is the estate or will otherwise be the distributee
under Section 7.03, then payment of the remaining interest of the
former Participant shall be in a single sum to his estate. If a
former Participant dies while benefit payments are being made in
accordance with option (2) herein, then any further payments shall
be determined pursuant to the terms of the annuity purchased
thereunder.
(b) Participants Generally With Service Only Before August 23, 1984.
The provisions of this subsection shall apply to any Participant
who is not credited with at least one (1) Hour of Service with the
Employer on or after August 23, 1984. The provisions of this
subsection, except subsection (b)(2), shall also apply to certain
other Participants in profit sharing plans who are eligible for the
special rule set out in subsection (d).
(1) Normal Retirement Benefit Form. In the event that a
Participant does not elect an optional form of benefit payment
pursuant to subsection (a) hereof within the retirement
benefit election period set forth therein, the normal form of
the retirement benefit payment to the Retired Participant
shall be in a single sum.
(2) Retirement Benefit Form - Married Participant Electing Annuity
Option. In the event that a Participant is to receive his
benefit under an annuity option involving life contingencies,
and the Participant is married on his Annuity Starting Date,
the form of the retirement
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benefit payment (other than payment of that portion of the
benefit, if any, attributable to the Retired Participant's
Voluntary Deductible Contributions or Rollover Contributions)
shall be a Qualified Joint and Survivor Annuity to such
Retired Participant and his spouse, unless the Retired
Participant elects otherwise. Any portion of the value of the
retirement benefit attributable to the Retired Participant's
Voluntary Deductible Contributions or Rollover Contributions
shall be paid to the Retired Participant in a single sum,
unless the Retired Participant elects an optional form of
benefit payment or Beneficiary, or both, pursuant to
subsection (a) hereof.
The Plan Administrator shall furnish to each Participant a
notice of general information concerning the Qualified Joint
and Survivor Annuity and the availability of more specific
information. Upon written request, the Plan Administrator
shall furnish a Participant with a more specific written
explanation, in nontechnical language, of the terms and
conditions of the Qualified Joint and Survivor Annuity and the
financial effect on the Participant of receiving benefits in
such form.
(c) Participants Generally With Service On or After August 23, 1984.
Except as provided in subsection (d) hereof with respect to certain
Participants in a Plan which is a profit sharing plan, the
provisions of this subsection shall apply both (i) to any
Participant who is credited with at least one (1) Hour of Service
with the Employer on or after August 23, 1984 and (ii) to such
former Participants as provided under the transitional rules set
forth in subsection (e) herein.
(1) Normal Retirement Benefit Form - No Spouse. In the event that
a Participant does not elect an optional form of benefit
payment pursuant to subsection (a) hereof within the
retirement benefit election period set forth therein (or if,
for Plan Years beginning prior to January 1, 1989, the Plan
Administrator declines to approve an election), and the
Participant does not have a Spouse on his Annuity Starting
Date, the normal form of the retirement benefit payment to the
Retired Participant shall be a payment in a straight life
annuity.
(2) Normal Retirement Benefit Form If Spouse. In the event a
Participant does not elect an optional form of benefit payment
or Beneficiary, or both, pursuant to subsection (a) hereof
within the retirement benefit election period set forth
therein under a qualified election, and the Participant does
have a Spouse on his Annuity Starting Date, the normal form of
the
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retirement benefit payment shall be a Qualified Joint and
Survivor Annuity to such Participant and his Spouse.
(3) Qualified Election. Any waiver of the normal retirement
benefit form shall not be effective unless: (i) the
Participant's Spouse consents in writing to the election; (ii)
the election designates a specific Beneficiary, including any
class of Beneficiaries or any contingent Beneficiaries, which
may not be changed without spousal consent (or the Spouse
expressly permits designations by the Participant without any
further spousal consent); (iii) the Spouse's consent
acknowledges the effect of the election; and (iv) the Spouse's
consent is witnessed by the Plan Administrator, or its
representative, or by a notary public. Additionally, a
Participant's waiver of the Qualified Joint and Survivor
Annuity shall not be effective unless the election designates
a form of benefit payment which may not be changed without
spousal consent (or the Spouse expressly permits designations
by the Participant without any further spousal consent). If it
is established to the satisfaction of the Plan Administrator,
or its representative that there is no Spouse or that the
Spouse cannot be located, a waiver will be deemed a qualified
election.
Any consent by a Spouse obtained under this provision (or
establishment that the consent of a Spouse may not be
obtained) shall be effective only with respect to such Spouse.
A consent that permits designations by the Participant without
any requirement of further consent by such Spouse must
acknowledge that the Spouse has the right to limit consent to
a specific Beneficiary, and a specific form of benefit where
applicable, and that the Spouse voluntarily elects to
relinquish either or both of such rights. A revocation of a
prior waiver may be made by a Participant without the consent
of the Spouse at any time before the Annuity Starting Date.
The number of revocations shall not be limited. No consent
obtained under this provision shall be valid unless the
Participant has received notice as provided in paragraph (4)
below.
(4) Notice of Normal Form of Payment. Within the period commencing
no less than thirty (30) and no more than ninety (90) days
prior to the Annuity Starting Date, the Plan Administrator
shall provide each Participant notice in the form of a written
explanation containing (i) the terms and conditions of the
normal form of benefit payment, (ii) the Participant's right
to make, and the effect of, an election to waive the normal
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form of benefit payment, (iii) the rights of the Participant's
Spouse and (iv) the right to make, and the effect of, a
revocation of a previous election to waive the normal form of
benefit payment.
If the benefit can be distributed to the Participant (or
surviving Spouse) before the Participant attains (or would
have attained if not deceased) the later of Normal Retirement
Age or age sixty-two (62), then the written explanation shall
also include an explanation of the right to defer any
distribution until the later of Normal Retirement Age and age
sixty-two (62).
(d) Special Rule for Certain Profit Sharing Plan Participants. The
provisions of subsection (b) rather than the provisions of
subsection (c) shall apply to a Participant in a profit
sharing plan, and to any distribution, made on or after the
first day of the first Plan Year beginning after December 31,
1988, from or under a separate account attributable solely to
Voluntary Deductible Contributions maintained on behalf of a
Participant in a money purchase pension plan (including a
target benefit plan), regardless of the fact that such
Participant may be credited with one (1) or more Hours of
Service with the Employer on or after August 23, 1984, if
(1) in Item 19(a) the Employer does not elect normal forms
of payment involving life contingencies, and
(2) the Participant cannot, or does not, elect an annuity
option involving life contingencies, and
(3) on the death of a Participant, the Participant's Vested
Account Balance will be paid to the Participant's
surviving Spouse, but if there is no surviving Spouse,
or if the surviving Spouse has consented in a manner
conforming to a qualified election, then to the
Participant's designated Beneficiary. The surviving
Spouse may elect to have distribution of the Vested
Account Balance commence within the ninety (90)-day
period following the date of the Participant's death.
The account balance shall be adjusted for Income
occurring after the Participant's death in accordance
with the provisions of the Plan governing the adjustment
of account balances for other types of distributions.
In addition, if with respect to a Participant, the Plan
is a direct or indirect transferee of a defined benefit
pension plan, a money purchase pension plan, a target
benefit pension plan, a stock bonus plan or any other
profit sharing plan which is subject to the survivor
annuity requirements of Section 401(a)(11) and Section
417 of the Code, then the provisions of
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subsection (b) shall apply as to the Participant's
Accounts attributable to the transfer from such plan,
provided that the amount of such transfer and any gains
or losses attributable thereto are maintained in a
separate account.
The Participant may waive the spousal death benefit
described in this subsection at any time provided that
no such waiver shall be effective unless it satisfies
the conditions (described in Section 7.02(c)(4)) that
would apply to the Participant's waiver of the qualified
preretirement survivor annuity.
For purposes of this subsection, "Vested Account
Balance" shall mean, in the case of a money purchase
pension plan or a target benefit plan, the Participant's
separate account balance attributable solely to
Voluntary Deductible Contributions.
(e) Transitional Rules for Annuity Benefits to Retired or Separated
Participants Not In-Payment on August 23, 1984.
(1) Election Period. The respective opportunities to make
elections under this subsection (e) (as described in the two
(2) following paragraphs) shall be afforded to the appropriate
Participants during the period commencing on August 23, 1984,
and ending on the date benefits would otherwise commence to
such Participants.
(2) Service Between January 1, 1976, and August 23, 1984. Any
living Retired or Separated Participant not receiving benefits
on August 23, 1984, who would otherwise not receive the
benefits prescribed by subsections 6.03(c) and 7.02(c) hereof
shall be given the opportunity to elect to have those
subsections apply if such Participant is credited with at
least one (1) Hour of Service under this Plan, or a
predecessor plan of which this Plan is a continuation, in a
Plan Year beginning on or after January 1, 1976, and such
Participant had at least ten (10) years of Vesting Service
when he separated from Service.
(3) Service Between September 2, 1974, and January 1, 1976. Any
living Retired or Separated Participant not receiving benefits
on August 23, 1984, who was credited with at least one (1)
Hour of Service under this Plan, or a predecessor plan of
which this Plan is a continuation, on or after September 2,
1974, and who is not otherwise credited with any Service in a
Plan Year beginning on or after January 1, 1976, shall be
given the opportunity to have his benefits paid in accordance
with the following provisions of subsection (e)(4).
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(4) ERISA Benefits. Any Participant who has elected to receive
benefits pursuant to subsection (e)(3) hereof, and any
Participant who does not elect to receive benefits under
subsection (e)(2) or who meets the requirements of such
subsection except that such Participant does not have at least
ten (10) years of Vesting Service when he separates from
Service, shall have his benefits distributed in accordance
with all of the following requirements, if his benefits would
have been payable in the form of a life annuity:
(i) Automatic joint and survivor annuity. If benefits in the
form of a life annuity become payable to a married
Participant who:
(A) begins to receive payments under the Plan on or after
Normal Retirement Age; or
(B) dies on or after Normal Retirement Age while still
working for the Employer; or
(C) begins to receive payments on or after the qualified
early retirement age; or
(D) separates from Service on or after attaining Normal
Retirement Age (or the qualified early retirement
age) and after satisfying the eligibility
requirements for the payment of benefits under the
Plan and thereafter dies before beginning to receive
such benefits;
then such benefits will be received under this Plan in
the form of a Qualified Joint and Survivor Annuity,
unless the Participant has elected otherwise during the
election period hereunder. The election period hereunder
shall begin at least six (6) months before the
Participant attains his qualified early retirement age
and shall end not more than ninety (90) days before the
commencement of benefits. Any election hereunder shall
be in writing and may be changed by the Participant at
any time by delivering such change of election to the
Plan Administrator.
(ii) Election of early survivor annuity. A Participant who is
employed after attaining the qualified early retirement
age shall be given the opportunity to elect, during the
election period, to have a survivor annuity payable on
death. If the Participant elects the survivor annuity,
then payments under such annuity shall not be less than
the payments which would have
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been made to the Spouse under the Qualified Joint and
Survivor Annuity if the Participant had retired on the
day before his death. Any election under this provision
shall be in writing and may be changed by the
Participant at any time by delivering such change of
election to the Plan Administrator. The election period
hereunder shall begin on the later of (1) the ninetieth
(9Oth) day before the Participant attains the qualified
early retirement age, or (2) the date on which
participation begins, and shall end on the date the
Participant terminates employment.
(iii) For purposes of this subsection (e)(4) the term
"qualified early retirement age" shall be the latest of:
(A) the earliest date, under the Plan, on which the
Participant may elect to receive retirement
benefits,
(B) the first (1st) day of the one hundred and twentieth
(120th) month beginning before the Participant
reaches Normal Retirement Age, or
(C) the date the Participant begins participation.
Section 6.04 Segregated Accounts. Any segregated account of a Retired
Participant established pursuant to an optional form of benefit payment under
Section 6.03(a) hereof shall remain a part of the Trust Fund, but shall be
separately invested in certificates of deposit, money market certificates,
collective investment trusts, other short-term debt security instruments or any
other investments acceptable to the Trustee, with all investment income on such
investments credited to the segregated account and all disbursements on behalf
of the Retired Participant charged thereto.
Section 6.05 Subsequent Agreement. If the amount credited to any account
of the Retired Participant is being paid to him from the Trust Fund in monthly
installments, the Retired Participant may request that the amount then credited
to such Account shall be applied in accordance with the provisions of Section
6.03 hereof providing for payment of the balance of the Retired Participant's
Account in a single sum. For Plan Years commencing prior to January 1, 1989, the
right of the Retired Participant to elect to have the remaining amount of his
account paid in a single sum shall be subject to the Plan Administrator's
consent.
Section 6.06 General Commencement of Benefits Rule. Notwithstanding any
other provisions of the Plan, but in addition to such provisions (as
applicable), unless the Participant elects otherwise, distribution of benefits
shall begin no later than the sixtieth (60th) day
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after the close of the Plan Year in which the latest of the following events
occurs:
(a) the date the Participant attains sixty-five (65) years of age, or,
if earlier, his Normal Retirement Age;
(b) the date the tenth (l0th) anniversary of the year in which the
Participant commenced participation in the Plan occurs; or
(c) the date the Participant terminates Service with the Employer.
If the amount of the payment required to commence on the date determined
under this section cannot be ascertained by such date, or if it is not possible
to make such payment on such date because the Committee has been unable to
locate the Participant after making reasonable efforts to do so, then a payment
retroactive to such date shall be made no later than sixty (60) days after the
earliest date on which the amount can be ascertained under the Plan or the date
on which the Participant is located (whichever is applicable).
Notwithstanding the foregoing, the failure of a Participant (or
surviving Spouse) to consent to a distribution before the Participant attains
(or would have attained if not deceased) the later of Normal Retirement Age or
age sixty-two (62), shall be deemed to be an election to defer commencement of
payment of any benefit sufficient to satisfy this Section.
Section 6.07 Special Commencement and Distribution of Benefits Rule.
(a) General Rules.
(1) Subject to Section 6.03 pertaining to Qualified Joint and
Survivor Annuities, the requirements of this section shall apply
to any distribution of a Participant's Accounts and will take
precedence over any inconsistent provisions of this Plan. Unless
otherwise specified, the provisions of this section apply to
calendar years beginning after December 31, 1984.
(2) All distributions required under this section shall be
determined and made in accordance with the proposed regulations
under Code Section 401(a)(9), including the minimum distribution
incidental benefit requirement of section 1.401(a)(9)-2 of the
proposed regulations.
(b) Required Beginning Date. The Accounts of a Participant must be
distributed or begin to be distributed no later than the
Participant's required beginning date. The consent of the
Participant or of the Participant's Spouse
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or Beneficiary shall not be required to make a distribution required
under this section.
(c) Limits on Distribution Periods. As of the first distribution
calendar year, distributions, if not made in a single-sum, may only
be made over one of the following periods (or a combination
thereof):
(1) the life of the Participant,
(2) the life of the Participant and a designated Beneficiary,
(3) a period certain not extending beyond the life expectancy of
the Participant, or
(4) a period certain not extending beyond the joint and last
survivor expectancy of the Participant and a designated
Beneficiary.
(d) Determination of Amount to be Distributed Each Year. If the
Participant's Accounts are to be distributed in other than a single
sum, the following minimum distribution rules shall apply on or
after the required beginning date:
(1) Individual Account.
(i) If a Participant's benefit is to be distributed over (A) a
period not extending beyond the life expectancy of the
Participant or joint life and last survivor expectancy of
the Participant and the Participant's designated
Beneficiary or (B) a period not extending beyond the life
expectancy of the designated Beneficiary, the amount
required to be distributed for each calendar year,
beginning with distributions for the first distribution
calendar year, must at least equal the quotient obtained
by dividing the Participant's benefit by the applicable
life expectancy.
(ii) For calendar years beginning before January 1, 1989, if
the Participant's Spouse is not the designated
Beneficiary, the method of distribution selected must
assure that at least fifty percent (50%) of the present
value of the amount available for distribution is paid
within the life expectancy of the Participant.
(iii) For calendar years beginning after December 31, 1988, the
amount to be distributed each year, beginning with
distributions for the first distribution calendar year
shall not be less than the quotient obtained by dividing
the
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Participant's benefit by the lesser of (A) the applicable
life expectancy or (B) if the Participant's Spouse is not
the designated Beneficiary, the applicable divisor
determined from the table set forth in Q&A-4 of section
1.401(a)(9)-2 of the proposed regulations. Distributions
after the death of the Participant shall be distributed
using the applicable life expectancy in paragraph (i)
above as the relevant divisor without regard to proposed
regulations section 1.401(a)(9)-2.
(iv) The minimum distribution required for the Participant's
first distribution calendar year must be made on or before
the Participant's required beginning date. The minimum
distribution for other calendar years, including the
minimum distribution for the distribution calendar year in
which the Employee's required beginning date occurs, must
be made on or before December 31 of that distribution
calendar year.
(2) Other Forms. If the Participant's benefit is distributed in the
form of an annuity purchased from a Life Insurance Company,
distributions thereunder shall be made in accordance with the
requirements of Section 401(a)(9) of the Code and the
regulations thereunder.
(e) Death Distribution Provisions.
(1) Distribution Beginning Before Death. If the Participant dies
after distribution of his benefit has begun, the remaining
portion of such benefit will continue to be distributed at least
as rapidly as under the method of distribution being used prior
to the Participant's death.
(2) Distribution Beginning After Death. If the Participant dies
before distribution of his benefit begins, distribution of the
Participant's entire benefit shall be completed by December 31
of the calendar year containing the fifth (5th) anniversary of
the Participant's death except to the extent that an election is
made to receive distributions in accordance with (i) and (ii)
below:
(i) if any portion of the Participant's benefit is payable to
a designated Beneficiary, distributions may be made over
the life or over a period certain not greater than the
life expectancy of the designated Beneficiary commencing
on or before December 31 of the
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calendar year immediately following the calendar year in
which the Participant died;
(ii) if the designated Beneficiary is the Participant's
surviving Spouse, the date distributions are required to
begin in accordance with (i) above shall not be earlier
than the later of (A) December 31 of the calendar year
immediately following the calendar year in which the
Participant died and (B) December 31 of the calendar year
in which the Participant would have attained age seventy
and one-half (70-1/2).
If the Participant has not made an election pursuant to this
subsection (e)(2) by the time of his death, the Participant's
designated Beneficiary must elect the method of distribution no
later than the earlier of (A) December 31 of the calendar year
in which distributions would be required to begin under this
subsection (e), or (B) December 31 of the calendar year which
contains the fifth (5th) anniversary of the date of death of the
Participant. If the Participant has no designated Beneficiary,
or if the designated Beneficiary does not elect a method of
distribution, distribution of the Participant's entire interest
must be completed by December 31 of the calendar year containing
the fifth (5th) anniversary of the Participant's death.
(3) For purposes of subsection (e)(2) above, if the surviving Spouse
dies after the Participant, but before payments to such Spouse
begin, the provisions of subsection (e)(2) with the exception of
paragraph (ii) therein, shall be applied as if the surviving
Spouse were the Participant.
(4) For purposes of this subsection (e), any amount paid to a child
of the Participant will be treated as if it had been paid to the
surviving Spouse if the amount becomes payable to the surviving
Spouse when the child reaches the age of majority.
(5) For the purposes of this subsection (e), distribution of a
Participant's benefit is considered to begin on the
Participant's required beginning date (or, if subsection (e)(3)
above is applicable, the date distribution is required to begin
to the surviving Spouse pursuant to subsection (e)(2) above).
If distribution in the form of an annuity irrevocably commences
to the Participant before the required beginning date, the date
distribution is considered to begin is the date distribution
actually commences.
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(f) Definitions.
(1) "Applicable life expectancy" shall mean the life expectancy (or
joint and last survivor expectancy) calculated using the
attained age of the Participant (or designated Beneficiary) as
of the Participant's (or designated Beneficiary's) birthday in
the applicable calendar year reduced by one (1) for each
calendar year which has elapsed since the date life expectancy
was first calculated. If life expectancy is being recalculated,
the applicable life expectancy shall be the life expectancy as
so recalculated. The applicable calendar year shall be the first
distribution calendar year, and if life expectancy is being
recalculated such succeeding calendar year.
(2) "Designated Beneficiary" shall mean the individual who is
designated as the Beneficiary under the Plan in accordance with
Code Section 401(a)(9) and the regulations thereunder.
(3) "Distribution calendar year" shall mean a calendar year for
which a minimum distribution is required. For distributions
beginning before the Participant's death, the first distribution
calendar year is the calendar year immediately preceding the
calendar year which contains the Participant's required
beginning date. For distributions beginning after the
Participant's death, the first distribution calendar year is the
calendar year in which distributions are required to begin
pursuant to subsection (e) above.
(4) "Life expectancy" shall mean life expectancy and joint and last
survivor expectancy which are computed by use of the expected
return multiples in Tables V and VI of section 1.72-9 of the
Treasury Regulations.
Unless otherwise elected by the Participant (or Spouse, in the
case of distributions described in section (e)(2)(ii) above) by
the time distributions are required to begin, life expectancies
shall be recalculated annually. Such election shall be
irrevocable as to the Participant (or Spouse) and shall apply to
all subsequent years. The life expectancy of a nonspouse
Beneficiary may not be recalculated.
(5) "Participant's benefit" shall mean the account balance as of the
last Valuation Date in the calendar year immediately preceding
the distribution calendar year ("valuation calendar year")
increased by the amount of any contributions or forfeitures
allocated to the account balance as of dates in the valuation
calendar year after the valuation date and decreased by
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<PAGE>
distributions made in the valuation calendar year after the
valuation date.
Notwithstanding the foregoing, if any portion of the minimum
distribution for the first distribution calendar year is made in
the second distribution calendar year on or before the required
beginning date, the amount of the minimum distribution made in
the second distribution calendar year shall be treated as if it
had been made in the immediately preceding distribution calendar
year.
(6) "Required beginning date" shall mean the first day of April of
the calendar year following the calendar year in which the
Participant attains age seventy and one-half (70-1/2) subject,
however, to the following transition rules.
(i) Transitional rules. The required beginning date of a
Participant who attains age seventy and one-half (70-1/2)
before January 1, 1988, shall be determined in accordance
with (A) and (B) below:
(A) Non-five-percent (5%) owners. The required beginning
date of a Participant who is not a five-percent (5%)
owner is the first day of April of the calendar year
following the calendar year in which the later of
retirement or attainment of age seventy and one-half
(70-1/2) occurs.
(B) Five-percent (5%) owners. The required beginning date
of a Participant who is a five-percent (5%) owner
during any year beginning after December 31, 1979, is
the first day of April following the later of:
1. the calendar year in which the Participant attains
age seventy and one-half (70-1/2), or
2. the earlier of the calendar year with or within
which ends the Plan Year in which the Participant
becomes a five-percent (5%) owner, or the calendar
year in which the Participant retires.
The required beginning date of a Participant who is not a
five-percent (5%) owner and who attains age seventy and
one-half (70-1/2) during 1988 and has not retired as of
January 1, 1989, is April 1, 1990.
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(ii) Five-percent (5%) owner. A Participant is treated as a
five-percent (5%) owner for purposes of this section if
such Participant is a five-percent (5%) owner as defined
in Section 416(i) of the Code (determined in accordance
with Section 416 of the Code but without regard to whether
the Plan is top-heavy) at any time during the Plan Year
ending with or within the calendar year in which such
owner attains age sixty-six and one-half (66-1/2) or any
subsequent Plan Year.
(iii) Once distributions have begun to a five-percent (5%) owner
under this section, they must continue to be distributed,
even if the Participant ceases to be a five-percent (5%)
owner in a subsequent year.
(g) Pre-DEFRA Distribution Designation Savings Rule.
Notwithstanding the preceding requirements of this section, the
distribution on behalf of any Participant may be made in accordance
with the following requirements (regardless of when such
distribution commences).
(1) The distribution by the Trust is one (1) which would not have
disqualified such Trust under Code Section 401(a)(9) as in
effect prior to amendment by the Deficit Reduction Act of 1984.
(2) The distribution is in accordance with a method of distribution
designated by the Participant whose interest in the Trust is
being distributed or, if the Participant is deceased, by a
Beneficiary of such Participant.
(3) Such designation was in writing, was signed by the Participant
or the Beneficiary, and was made before January 1, 1984.
(4) The Participant had accrued a benefit under the Plan as of
December 31, 1983.
(5) The method of distribution designated by the Participant or the
Beneficiary specifies the time at which distribution shall
commence, the period over which distributions shall be made and,
in the case of any distribution upon the Participant's death,
the Beneficiaries of the Participant listed in order of
priority.
A distribution upon death shall not be covered by this subsection
unless the information in the designation contains the required
information described herein with
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<PAGE>
respect to the distributions to be made upon the death of the
Participant.
For any distribution which commences before January 1, 1984, but
continues after December 31, 1983, the Participant, or the
Beneficiary, to whom such distribution is being made shall be
presumed to have designated the method of distribution under which
the distribution is being made if the method of distribution was
specified in writing and the distribution satisfies the requirement
in preceding subsections (c)(l) through (5) herein.
If a designation is revoked, any subsequent distribution shall
satisfy the requirements of Code Section 401(a)(9) and the
regulations thereunder. If a designation is revoked subsequent to
the date distributions are required to begin, the Trust must
distribute by the end of the calendar year following the calendar
year in which the revocation occurs the total amount not yet
distributed which would have been required to have been distributed
to satisfy Section 401(a)(9) of the Code and the regulations
thereunder, but for the Section 242(b)(2) election. For calendar
years beginning after December 31, 1988, such distributions must
meet the minimum distribution incidental benefit requirements in
section 1.401(a)(9)-2 of the proposed regulations. Any changes in
the designation shall be considered to be a revocation of the
designation. However, the mere substitution or addition of another
Beneficiary (not named in the designation) under the designation
shall not be considered to be a revocation of the designation, so
long as such substitution or addition does not alter the period over
which distributions are to be made under the designation, directly
or indirectly (for example, by altering the relevant measuring
life). In the case in which an amount is transferred or rolled over
from one plan to another plan, the rules in Q&A J-2 and Q&A J-3 of
section 1.401(a)(9)-2 of the proposed regulations shall apply.
Section 6.08 Cash-Out Distribution of Small Benefits. For Plan Years
beginning after December 31, 1986 and before January 1, 1989, in the event that
a former Participant or Beneficiary shall become entitled to receive any benefit
under the Plan, and the Participant's Vested Account Balance is not greater than
three thousand five hundred dollars ($3,500), the Plan Administrator reserves
the right to cause the benefit to be paid to such person in a single sum within
one (1) year after the date the Participant ceases to participate in the Plan.
Such payment shall be in lieu of the form of benefit otherwise payable under any
provision in this Plan.
For Plan Years beginning after December 31, 1988, in the event that a
former Participant or Beneficiary shall become entitled to receive any benefit
under the Plan, and the Participant's Vested Account Balance is not greater than
three thousand five hundred dollars ($3,500), the Plan
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<PAGE>
Administrator shall, if elected pursuant to Item 16 of the Adoption Agreement,
cause the benefit to be paid to such person in a single sum within one (l) year
after the date the Participant ceases to participate in the Plan. Such payment
shall be in lieu of the form of benefit otherwise payable under any provision of
this Plan.
No such distribution shall be made after the Annuity Starting Date. No
such distribution shall be made after benefits commence in the form of
installment payments unless the former Participant and the former Participant's
Spouse, if applicable, consent to such a distribution in a manner consistent
with the qualified election requirements of Sections 6.03(c)(3) and 7.02(c)(4)
hereof.
Section 6.09 Purchase Of Annuities. If benefits are required to be paid
in the form of an annuity involving life contingencies under the terms of any
provision of this Plan, then the Trustee shall purchase such annuity contracts
from a Life Insurance Company, utilizing for such purchase the entire
nonforfeitable amount in the Accounts of the Participant. Any annuity contract
which is purchased hereunder to provide benefits otherwise payable under the
Plan, and which is distributed to a Retired or Separated Participant or
Beneficiary, shall be endorsed as "nontransferable." The terms of any annuity
contract purchased and distributed by the Plan to a Participant or Spouse shall
comply with the requirements of this Plan.
Section 6.10 Limitation. Except as provided in Articles 7 or 8 hereof,
the provisions of this article shall not apply to a Separated Participant.
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<PAGE>
ARTICLE 7
DEATH AND DISABILITY BENEFITS
Section 7.01 Death Benefits. In the event of the death of a Participant
or a Retired Participant (other than a Retired Participant receiving retirement
benefits pursuant to Section 6.03 hereof), prior to the complete distribution of
his Accounts, his death benefit shall be one hundred percent (100%) of his
Accounts determined on the Valuation Date immediately preceding the payment of
the benefit, plus any contributions, or Income gain, allocated to his Accounts
after such Valuation Date and less any payments or withdrawals made from his
Accounts, or Income loss allocated against the Accounts, since such preceding
Valuation Date.
Section 7.02 Payment of Death Benefits.
(a) In General. The form of payment of the value of the death benefit
shall be as set forth in subsections (b) and (c) hereof. In lieu of
the form of death benefit provided therein, a Participant may elect
in writing, subject to (if applicable) the qualified election
requirements set forth in subsection (c)(4) hereof, to have his
benefit paid or applied in accordance with one (1), or a
combination, of the options described in Section 6.03(a);
provided, however, that such elected option shall comply with the
form of payment limitations set forth in Section 6.07 hereof. For
Plan Years beginning prior to January 1, 1989, any election of an
alternative form of death benefit pursuant to this Section 7.02
shall be subject to the approval of the Plan Administrator.
Subject to the time limitations set forth in Sections 6.06 and 6.07
hereof, the surviving Spouse or Beneficiary, as applicable, may
elect to have the death benefit commence (or, if applicable, the
annuity contract distributed) within a reasonable time after the
death of the Participant occurs. However, still subject to the time
limitations of Sections 6.06 and 6.07, if the former Participant is
to receive an allocation pursuant to Item 12 of the Adoption
Agreement for the Plan Year in which his Service terminated, then
the death benefit shall be paid, subject to the contrary election by
an eligible Spouse to receive a death benefit immediately without
such additional allocation pursuant to subsection (c)(2) hereof, at
such time as contributions for such Plan Year have, in fact, been
allocated.
The death benefit election period shall be a period which begins on
the date the Participant enters the Plan and ends on the date of the
death of the Participant. Any election hereunder shall be in writing
and in such form as the Plan
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<PAGE>
Administrator shall uniformly and nondiscriminatorily require.
Payment of the death benefit to the Beneficiary of the deceased
Participant shall fully discharge the Trustee, the Plan
Administrator (and the Committee, if appointed pursuant to Section
9.01 hereof) and the Employer, and each of them, from any and all
liability hereunder as to such deceased Participant. The Trustee,
the Plan Administrator (and the Committee, if appointed pursuant to
Section 9.01 hereof), and the Employer, and each of them, shall not
be responsible for the ultimate disposition of such benefit in
accordance with any will or other testamentary disposition made by
such Participant, or in accordance with the intestacy provisions of
any law.
(b) Participants with Service Only Before August 23, 1984. The
provisions of this subsection shall apply to any Participant who is
not credited with at least one (1) Hour of Service with the Employer
on or after August 23, 1984.
In the event that such a Participant does not elect an optional form
of benefit payment pursuant to subsection (a) hereof within the
death benefit election period set forth therein (or if as to Plan
Years beginning prior to January 1, 1989 the Plan Administrator
declines to approve the election), regardless of whether or not the
Participant had been married on his date of death, the death benefit
shall be paid to the Beneficiary of the deceased Participant in a
single sum; provided, however, that such Beneficiary may elect to
receive this death benefit in an optional form of benefit payment
pursuant to subsection (a) hereof as if he were the Participant.
(c) Participants with Service On or After August 23, 1984. Except as
provided in subsection (c)(3) hereof with respect to certain
Participants in a Plan which is a profit sharing plan, the
provisions of this subsection shall apply to any Participant who is
credited with at least one (1) Hour of Service with the Employer on
or after August 23, 1984.
(1) Participants Not Leaving a Surviving Spouse on Death. In the
event that a Participant does not elect an optional form of
benefit payment pursuant to subsection (a) hereof within the
death benefit election period set forth therein (or if, as to
Plan Years beginning prior to January 1, 1989, the Plan
Administrator declines to approve an election), and the
Participant does not have a Spouse on the date of his death, the
death benefit shall be paid to the Beneficiary of the deceased
Participant in a single sum; provided, however, that such
Beneficiary may elect to receive this death benefit in an
optional
7-2
<PAGE>
form of benefit payment pursuant to subsection (a) hereof as if
he were the Participant.
(2) Participants Leaving a Surviving Spouse on Death - Qualified
Preretirement Survivor Annuity. In the event that a Participant
has not selected an optional form of benefit payment or
Beneficiary, or both, pursuant to subsection (a) hereof within
the death benefit election period set forth therein pursuant to
a qualified election, and the Participant has a Spouse on the
date of his death, the death benefit shall be paid to the
surviving Spouse in the form of an annuity for the Spouse's
life; provided, however, that if so provided by the Employer in
Item 19 of the Adoption Agreement, the Spouse may elect to
receive this death benefit in an optional form of benefit
payment pursuant to subsection (a) hereof as if the Spouse were
the Participant pursuant to a qualified election at any time
prior to ninety (90) days before payment of the death benefit
actually commences. Any portion of the value of the death
benefit which is not payable to any surviving Spouse shall be
paid to the Beneficiary of the deceased Participant in a single
sum; provided, however, that such Beneficiary may elect to
receive his portion of the death benefit in an optional form of
benefit payment pursuant to subsection (a) hereof as if he were
the Participant and no qualified election requirement shall
apply to such election by the Beneficiary.
(3) Special Rule for Certain Profit Sharing Plan Participants.
Notwithstanding the foregoing, if the Plan is a profit sharing
plan, and if the Participant has a Spouse on the date of his
death, then the death benefit (including any proceeds received
under a Policy owned by the Trustee on the Participant's life
purchased by Employer contributions or Forfeitures allocated to
the Participant's Employer Account) shall be paid to the
surviving Spouse in the form of a single sum, unless
(i) the Participant has selected a Beneficiary other than his
Spouse pursuant to a qualified election,
(ii) the Participant can, and does, elect an annuity option
involving life contingencies, or
(iii) with respect to such Participant, the Plan is a direct or
indirect transferee of a defined benefit pension plan, a
money purchase pension plan, a target benefit pension
plan, a stock bonus plan or any other profit sharing plan
which is subject to the survivor annuity
7-3
<PAGE>
requirements of Section 401(a)(11) and Section 417 of the
Code.
(4) Qualified Election. A qualified election shall have the meaning
for this term set forth in Section 6.03(c)(3) hereof, but shall
apply to a spousal waiver of the form of payment, or the
payment, of the death benefit provided under this subsection
instead of the waiver of the Qualified Joint and Survivor
Annuity provided under Section 6.03(c)(3). However, in the event
the preretirement survivor annuity rules of subsection (c)(2)
are applicable as to the Participant, an election to waive the
preretirement survivor annuity benefit which is made prior to
the first day of the Plan Year in which the Participant attains
age thirty-five (35), shall become invalid on the first day of
the Plan Year in which the Participant attains age thirty-five
(35); provided, however, that, at that time the Participant
shall have the right to again elect to waive the preretirement
survivor annuity benefit.
(5) Notice of Qualified Preretirement Survivor Annuity. If the
Employer provides in the Adoption Agreement that the Participant
may waive the qualified preretirement survivor annuity or allows
a married Participant to designate a nonspouse Beneficiary, then
the Plan Administrator shall provide each Participant whose
Spouse may receive a qualified preretirement survivor annuity
for such Participant, a written explanation of the qualified
preretirement survivor annuity described in subsection (c)(2)
hereof in such terms and in such manner as is comparable to the
explanation provided pursuant to Section 6.03(c)(4) with respect
to the Qualified Joint and Survivor Annuity notice. The Plan
Administrator shall provide such Participant with a written
explanation of the qualified preretirement survivor annuity
within whichever of the following periods ends last: (i) the
period beginning with the first day of the Plan Year in which
the Participant attains age thirty-two (32) and ending with the
close of the Plan Year preceding the Plan Year in which the
Participant attains age thirty-five (35); (ii) a reasonable
period ending after the individual becomes a Participant; (iii)
a reasonable period ending after the qualified preretirement
survivor annuity is no longer fully subsidized; (iv) a
reasonable period ending after this article first applies to the
Participant. Notwithstanding the foregoing, notice must be
provided within a reasonable period ending after separation from
service in the case of a Participant who separates from service
before attaining age thirty-five (35). In addition, notice shall
be provided to
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<PAGE>
active Participants who have not attained age thirty-five (35)
at such time as may be required by regulation.
For purposes of applying the preceding paragraph, a reasonable
period ending after the enumerated events described in (ii),
(iii) and (iv) is the end of the two (2)-year period beginning
one (1) year prior to the date the applicable event occurs, and
ending one (1) year after that date. In the case of a
Participant who separates from service before the Plan Year in
which age thirty-five (35) is attained, notice shall be provided
within the two (2)-year period beginning one (1) year prior to
separation and ending one (1) year after separation. If such a
Participant thereafter returns to employment with the Employer,
the applicable period for such Participant shall be
redetermined.
(6) Exemptions from Notice Requirement. Notwithstanding the other
requirements of this Section 7.02(c), the respective notices
prescribed by this section need not be given to a Participant if
(i) the Plan "fully subsidizes" the costs of a qualified
preretirement survivor annuity, and (iii) the Plan does not
allow the Participant to waive the qualified preretirement
survivor annuity and does not allow a married Participant to
designate a Beneficiary who is not his Spouse. For purposes of
this section, a Plan fully subsidizes the costs of a benefit if
no increase in cost, or decrease in benefits to the Participant
may result from the Participant's failure to elect another
benefit.
Section 7.03 Designation of Beneficiary. At any time, and from time to
time, each Participant, or Retired or Separated Participant shall have the right
to designate the Beneficiary to receive his death benefit, and to revoke any
such designation, but any such designation shall be subject to the spousal
waiver when required under the qualified election provisions of Sections
6.03(c)(3) and 7.02(c)(4). Each such designation, or revocation thereof, shall
be evidenced by a written instrument filed with the Plan Administrator and
signed by the Participant, or Retired or Separated Participant and, if required,
the Spouse of such Participant. If no such designation is on file with the Plan
Administrator at the time of the death of a Participant or Retired or Separated
Participant, or if such designation is not effective for any reason as
determined by the Trustee, then the Participant shall be deemed, unless
otherwise required by the law, to have designated the following Beneficiaries
(if living at the time of the death of the Participant or Beneficiary) in the
following order of priority: (a) the actual spouse of the Participant, (b) the
children, including adopted children, of the Participant, in equal shares per
stirpes, (c) the natural parents of the Participant, in equal shares and (d) the
estate of the Participant.
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<PAGE>
Section 7.04 Documentary Proof. The Trustee may require the execution
and delivery of such documents, papers and receipts as it may deem reasonably
necessary in order to be assured that the payment of any death benefit is made
to the person or persons entitled thereto.
Section 7.05 Disability Benefits. In the event of the Disability of a
Participant, and certification thereto by the Plan Administrator to the Trustee,
such Participant shall be entitled to one hundred percent (100%) of his Accounts
determined on the Valuation Date immediately preceding the payment of the
benefit, plus any contributions, or Income gain, allocated to his Accounts after
such Valuation Date and less any payments made from his Accounts, or Income loss
allocated against such Accounts, since such preceding Valuation Date.
Section 7.06 Payment of Disability Benefits. Subject to the provisions
hereof concerning the death of a disabled Participant, any amounts due a
disabled Participant pursuant to this article from his Accounts shall be paid or
applied for his benefit in accordance with the provisions described in Section
6.03 hereof for the payment of retirement benefits, subject to the form of
benefit payment and time limitations of Sections 6.06 and 6.07 hereof, at what
would have been his Normal Retirement Date had he remained in Service. However,
if allowed pursuant to Item 16 of the Adoption Agreement, a Participant may
elect that the commencement date of any Disability benefits shall be any date
after his Disability occurred and prior to his Normal Retirement Date; provided,
however, that, for Plan Years beginning prior to January 1, 1989, a
Participant's election of early commencement of any Disability benefits shall be
subject to the approval of the Plan Administrator.
In the event of the death of a disabled Participant subsequent to the
date his Service terminated and prior to the Annuity Starting Date hereunder,
the amount payable on behalf of such disabled Participant under Section 7.05
hereof shall be paid in the form provided in Section 7.02 hereof. If the death
of a disabled Participant occurs subsequent to the date his Service terminated
and after the Annuity Starting Date hereunder, then no death benefit shall be
payable, unless provided for under the form of benefit payable pursuant to
Section 6.03.
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<PAGE>
ARTICLE 8
BENEFITS ON SEPARATION FROM SERVICE
Section 8.01 Rights of a Separated Participant. A Participant whose
Service is terminated by causes other than death, Disability, or retirement, or
who incurs a Break in Service, shall have the rights described in this article.
In no case, however, shall such a Separated Participant receive benefits under
the Plan prior to his Normal Retirement Date while still employed by the
Employer. Failure to return to Service with the Employer by the date on which a
Leave of Absence expires shall be considered to be a termination of Service as
of the date of such expiration.
Section 8.02 Vesting of Employer Contributions. Subject to his returning
to Service at a time when he may increase the nonforfeitable percentage of his
Employer Account or Matching Account (if pursuant to Item 8(b) of the Adoption
Agreement the Matching Account is subject to the vesting schedule of Item 16 of
the Adoption Agreement), a Separated Participant shall be entitled to the
prescribed percentage of such accounts, including all Income allocated thereto,
pursuant to the vesting option elected in Item 16 of the Adoption Agreement,
such percentage to be determined as of the earlier of the date on which his
Service terminates and the date he incurs a Break in Service.
Section 8.03 Forfeitures. The portion of an Employer Account or Matching
Account to which a Separated Participant is not entitled, as provided in
Sections 5.01 and 8.02 hereof, shall be a Forfeiture as of the earlier of the
following dates:
(a) the date the Separated Participant is paid the entire vested amount
of such accounts under the Plan pursuant to Sections 6.08 or 8.06
hereof, or
(b) the date the Separated Participant incurs five (5) consecutive
Breaks in Service (or, in Plan Years beginning before January 1,
1985, the date the Separated Participant incurs a Break in Service).
For purposes of this Section, if (i) pursuant to Section 6.08 hereof and the
election in Item 16 of the Adoption Agreement the value of benefits with a value
not greater than three thousand five hundred dollars ($3,500) is automatically
cashed-out, and (ii) the value of an Employee's Vested Account Balance is zero,
the Separated Participant shall be deemed to have received a distribution of
such Vested Account Balance and the Employer Account and the Matching Account
shall be treated as a Forfeiture as of the date indicated in Item 16 of the
Adoption Agreement. For purposes of this paragraph, a Separated Participant's
Vested Account Balance shall not include Voluntary Deductible Contributions for
Plan Years beginning prior to January 1, 1989.
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<PAGE>
Forfeitures shall be allocated or applied pursuant to Section 4.02
hereof.
No Forfeitures shall occur solely as a result of an Employee's
withdrawal of Employee Contributions, except in certain cases as provided with
respect to the withdrawal of mandatory Employee Contributions as set forth in
Section 5.01 hereof.
If a benefit cannot be paid to the Separated Participant or his
Beneficiary because he cannot be found, such benefit (subject to overruling law)
shall be treated as a Forfeiture but, if treated as a Forfeiture, shall be
reinstated if a claim is made by that Participant or his Beneficiary.
If a Separated Participant receives or is deemed to receive a
distribution of his Vested Account Balance upon termination of his Service and
he resumes Service before he incurs five (5) consecutive Breaks in Service (or,
in Plan Years beginning before January 1, 1985, before he incurs a Break in
Service), then any amount forfeited shall be reestablished in such Participant's
account from which it was forfeited; provided, if so elected in Item 8 of the
Adoption Agreement, that such Participant shall first repay the full amount of
such distribution, if any, before the earlier of (i) five (5) years after the
first day the Employee subsequently resumes Service, and (ii) the date he
subsequently incurs five (5) consecutive Breaks in Service after such
distribution.
If a Forfeiture is reestablished as part of an account of a former
Separated Participant who has resumed Service without his having to repay the
full amount of the distribution, then the resulting Employer Account or Matching
Account (as applicable) shall be established on his behalf as a separate
bookkeeping account, separate from any account which may be established on his
behalf due to resumption of Service. In the event that the Participant later
ceases to be a Participant, the amount to which he is entitled from the separate
bookkeeping account shall be computed as of the date he ceases to be a
Participant pursuant to the following formula:
X = P x (AB + (R x D)) - (R x D)
For purposes of solving this equation, "X" is the amount to which the
Participant is entitled, np" is his vested percentage at the relevant time, "AB"
is his Employer Account or Matching Account (as applicable) balance at the
relevant time, "R" is the ratio of such account balance at the relevant time to
such account balance immediately after the distribution, and "D" is the amount
of the distribution.
Section 8.04 Immediate Vesting of Certain Contributions. All Elective
Deferral Contributions, Qualified Non-elective Contributions, Qualified Matching
Contributions, Employee Contributions, Rollover Contributions, and Voluntary
Deductible Contributions and all Income allocated thereon, shall be fully vested
when made and shall be nonforfeitable at all times thereafter.
8-2
<PAGE>
Section 8.05 Benefits Upon Separation from Service. A Separated
Participant whose Service terminates for reasons other than death, Disability or
retirement, but who has not incurred a Break in Service, shall be entitled to
receive the Vested Account Balance (determined at the date his Service
terminates), such Accounts to be determined as of the Valuation Date immediately
preceding the date of the distribution, increased by any contributions or Income
gain, allocated after such Valuation Date and reduced by any payments or
withdrawals made from the Accounts, or Income loss allocated against the
Accounts, since such preceding Valuation Date.
Section 8.06 Payment of Service Separation Benefits. Subject to the
provisions hereof concerning the death or Disability of a Separated Participant,
any amounts due the Separated Participant pursuant to this article from his
Accounts shall be paid or applied for his benefit in accordance with the
provisions of Section 6.03 hereof for the payment of retirement benefits,
subject to the form of benefit payment and time limitations of Sections 6.06 and
6.07 hereof, at what would have been his Normal Retirement Date had he remained
in Service. However, if allowed pursuant to Item 16 of the Adoption Agreement, a
Separated Participant may elect that the commencement date of any amounts due
the Separated Participant pursuant to this article shall be any date after his
Service terminates and prior to his Normal Retirement Date; provided, however,
that, for Plan Years beginning prior to January 1, 1989, a Participant's
election of early commencement of any amounts due the Separated Participant
pursuant to this article shall be subject to the approval of the Plan
Administrator.
In the event of the death of a Separated Participant subsequent to the
date his Service terminates and prior to the Annuity Starting Date hereunder,
the amount payable on behalf of such Separated Participant under this article
shall be paid in the form provided in Section 7.02 hereof as if he were a
deceased Participant. If the death of a Separated Participant occurs subsequent
to the date his Service terminates and after the Annuity Starting Date
hereunder, then no death benefit shall be payable unless provided for on his
death under the form of benefit pursuant to Section 6.03.
In the event of the Disability of a Separated Participant, and
certification thereof by the Plan Administrator to the Trustee, subsequent to
the date his Service terminates and prior to the commencement of benefits
hereunder, the amount payable on behalf of such Separated Participant under this
article shall be paid in the form provided in Section 7.06 hereof as if he were
a Participant who sustained a Disability. If benefits have commenced hereunder,
then in the event of the Disability of a Separated Participant benefits shall
continue in the form in which such benefits were being paid on the date of such
Disability.
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ARTICLE 9
PLAN ADMINISTRATION
Section 9.01 Appointment of the Plan Administrator. The Plan
Administrator shall be the Employer or other entity or entities set forth in
Item 3 of the Adoption Agreement. The Plan Administrator may at any time be
removed, with or without cause, and a successor appointed by the Employer.
The Plan Administrator shall serve without compensation, but the
reasonable expenses of the Plan Administrator in discharging its
responsibilities shall be borne by the Employer.
The Plan Administrator may appoint a Committee of not less than three
(3) persons to carry out the day to day administrative functions of the Plan in
its stead, but such Committee shall not be Plan Administrator unless so
designated in Item 3 of the Adoption Agreement.
Section 9.02 Powers and Duties of the Plan Administrator. The Plan
Administrator shall administer and supervise the operation of the Plan in
accordance with the terms and provisions of the Plan.
The Plan Administrator shall have all power and authority (including
discretion with respect to the exercise of that power and authority) necessary,
properly advisable, desirable or convenient for the performance of its duties,
which duties shall include, but not be limited to, the following:
(a) to construe the Plan in good faith;
(b) to determine eligibility of Employees for participation in the Plan
and to notify Employees of their eligibility and of any requirements
for such participation;
(c) to determine and certify eligibility for benefits under the Plan, to
maintain one or more separate bookkeeping accounts for each
Participant or Beneficiary to which shall be credited the various
types of contributions, if any, made under this Plan, and Income
thereon, and to direct the Trustee concerning the amount, manner and
time of the payment of such benefits and any insurance and annuity
contracts to be purchased on behalf of Participants, Retired or
Separated Participants and Beneficiaries;
(d) to prepare and distribute, in such manner as the Plan Administrator
determines to be appropriate, information explaining the Plan;
(e) to require a Participant to complete and file with the Plan
Administrator an application for a benefit and all other forms
approved by the Plan Administrator, and to furnish
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all pertinent information requested by the Plan Administrator, which
information may be relied upon by the Plan Administrator;
(f) to adopt such rules as it deems necessary, desirable or appropriate for
the administration of the Plan, provided such rules are consistent with
the terms and provisions of the Plan; all rules and decisions of the
Plan Administrator shall be uniformly and consistently applied to all
Participants in similar circumstances;
(g) to appoint and compensate such agents as it may need in the performance
of its duties, with the consent of the Employer; and
(h) to receive and review the reports from the Trustee.
Section 9.03 Plan Administrator Procedures. The Plan Administrator may
adopt such procedures and regulations as it deems desirable for the
administration of the Plan. Such procedures and regulations shall be
non-discriminatory and shall to the extent feasible be maintained in writing.
Section 9.04 Claims and Review Procedures. The Plan Administrator shall
establish reasonable procedures concerning the filing of claims for benefits
hereunder, and shall administer such procedures uniformly. If a claim is wholly
or partially denied, the Plan Administrator shall furnish the claimant, within
ninety (90) days after receipt of the claim by the Plan Administrator, a notice
of such denial, setting forth at least the following information in language
calculated to be understood by the claimant:
(a) the specific reason or reasons for the denial;
(b) specific reference to pertinent Plan provisions on which the denial is
based;
(c) a description of any additional material or information necessary for
the claimant to perfect the claim and an explanation of why such
material or information is necessary; and
(d) an explanation of the claims review procedure in the Plan.
Upon receipt of such notice of denial, or if such a notice is not furnished
but the claim has not been granted within ninety (90) days of its filing, the
claimant or his duly authorized representative may appeal to an "Appeals
Committee" or "Appeals Officer" from time to time appointed by the Employer to
hear such appeals, for a full and fair review.
In submitting a request for review, the claimant or his duly authorized
representative may request a review upon written application to the Appeals
Committee or Officer, may review pertinent documents, and may
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submit comments in writing. Such request for review must be made within sixty
(60) days of the receipt by the claimant of the notice of denial (or within
sixty (60) days of the expiration of the ninety (90) day period beginning with
the date of the filing of the claim, if no such notice is received during such
period).
The Appeals Committee or Officer shall respond promptly to a request for
review and shall deliver a written decision which shall include, in a manner
calculated to be understood by the claimant, the decision itself, specific
reasons therefor and specific references to the pertinent Plan provisions on
which the decision is based. The decision shall be made not later than sixty
(60) days after the Appeals Committee's or Officer's receipt of the request for
review, unless special circumstances (such as, for example, the need to hold a
hearing) require an extension of this time; however, in no case shall a decision
be rendered more than one hundred and twenty (120) days after receipt of a
request for a review. The Plan Administrator and the claimant shall be bound by
the decision of the Appeals Committee or Officer.
Section 9.05 Purchase of Annuities and Incidental Death Insurance. The Plan
Administrator shall, if so directed in Item 18 of the Adoption Agreement, or
may, if so authorized therein, direct the Trustee ratably to purchase, and pay
premiums from the accounts attributable to Employer contributions of a
Participant for, one (1) or more ordinary or term insurance policies and/or
annuity contracts (hereinafter referred to as Policies) from a Life Insurance
Company, including, but not limited to, variable annuities, flexible funds or
contracts involving mortality assumptions, on the life of a Participant, but
such investment shall be subject to the following restrictions:
(a) In any year in which the total of all amounts allocated to the accounts
attributable to Employer contributions of a Participant is insufficient
to meet his premium payments, the Trustee shall apply other amounts in
his accounts attributable to Employer contributions, to the extent
permitted in this article, to the payment of said premiums; provided
that, in no event, shall the aggregate of premiums paid under all
Policies on the Participant's life ever exceed forty-nine percent (49%)
if of the ordinary type, or twenty-four percent (24%) if of the term or
universal type, of the total amount of all Employer's contributions on
behalf of said Participant. If premiums are paid on both ordinary type
Policies and term or universal life type Policies on the life of a
Participant, then the sum of one-half (1/2) of the ordinary life
premiums and all other life insurance premiums shall not exceed
one-fourth (1/4) of the total amount of all Employer contributions on
behalf of said Participant. For purposes of these incidental insurance
provisions, ordinary life insurance contracts are contracts with both
nondecreasing death benefits and nonincreasing premiums.
(b) The Trustee shall pay all proceeds of any Policy it owns in accordance
with the provisions of this Plan, including the
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qualified election provisions of Sections 6.03(c)(3) and 7.02(c)(4)
hereof where applicable. In conformity with such provisions, however,
the Plan Administrator may direct the Trustee to distribute the Policy
itself instead of the proceeds of any such Policy to the Participant as
a portion (equal in value to the cash surrender value of the Policy) of
the benefit otherwise due said Participant. In the event that a
distribution described in the immediately preceding sentence is made at
a time when the cash surrender value of the Policy exceeds the value of
the Participant's vested benefit, the Participant may nonetheless
receive such a distribution upon paying to the Trustee an amount equal
to the difference between said cash surrender value and the value of
his vested benefit.
(c) Any annuity contract which is purchased hereunder to provide benefits
otherwise payable under the Plan, and which is distributed to a Retired
Participant or Beneficiary, shall be endorsed as "nontransferable."
The Trustee shall be the owner of all Policies obtained hereunder, and the
application for such Policy or Policies shall be in such manner as may be
necessary for the Trustee to vest in itself all incidents of ownership. Any such
Policy or Policies shall be in such form and substance as the Plan Administrator
shall determine, except as herein expressly provided. The premium payments made
on account of any such Policy shall be considered as an investment of the
accounts attributable to Employer contributions of the Participant on whose life
such Policy is issued, and such premium payments shall be charged to such
accounts.
Any dividends or credits earned on Policies shall be allocated to the
accounts attributable to Employer contributions of the Participant for whose
benefit the Policies are held. In the event of the death of such Participant
prior to retirement, the proceeds of such Policy shall be paid to the Trustee
and the proceeds shall be credited to the accounts attributable to Employer
contributions of such Participant. To the extent the Plan Administrator
establishes the amount to be invested in said Policies, as provided in
subsection (a) hereof, all Policies shall bear a common premium date and
dividends, if any, on said Policies shall be paid in cash to the Trust or shall
be used to reduce premiums and shall not reduce the amount otherwise allocable
to the Participant's Accounts. The Plan Administrator shall specify whether all
Participants shall participate uniformly in the purchase of Policies, or whether
each Participant may specify (within the limits established in (a) hereof) the
amount of Employer contributions on his behalf which shall be used to purchase
such Policies.
If the Plan is a target benefit pension plan, the Plan Administrator may
direct that the amount of the retirement benefit provided to each Participant by
Policies shall not be increased until such Participant's Compensation is large
enough to increase the retirement benefit through such Policies by a specified
minimum amount. This minimum amount may be no greater than one hundred and
twenty dollars ($120) each year or ten dollars ($10) per month, or
alternatively, expressed as an
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increase in the face amount of the Policy, a minimum increase in the face amount
of the Policy which does not exceed one thousand dollars ($1,000).
In the event of any conflict between the provisions of this Plan and the
terms of any Policy issued hereunder, the provisions of the Plan shall control.
Once instructed by the Plan Administrator to purchase certain Policies, the
Trustee shall continue to pay premiums on such Policies as they fall due,
subject to the limitations of this subsection, during the continued
Participation of the insured and in the absence of direction to the contrary
from the Plan Administrator. In the absence of specific instruction from the
Plan Administrator, if a Participant's Service terminates, the Trustee shall
(i) if the Participant is not entitled to a vested benefit from his Employer
Account, cease to pay premiums, or (ii) if the Participant is entitled to a
vested benefit from his Employer Account, continue to pay premiums until the
former Participant incurs a Break in Service and shall then cease to pay
premiums. When premiums have ceased, the provisions of subsection (b) hereof
shall apply.
Section 9.06 Correction of Errors. If any error or change in records,
including an error resulting from an incorrect or incomplete allocation, results
in any Participant, Retired or Separated Participant, or Beneficiary receiving
from the Plan more or less than he would have been entitled to receive had the
records been correct or had the error not been made, the Plan Administrator,
upon discovery of such error, shall correct the error by adjusting, as far as
practicable, the accounts in such a manner that the benefits to which such
person was correctly entitled shall be paid.
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ARTICLE 10
THE TRUSTEE
Section 10.01 General Duties. The Trustee shall hold all property received
by it hereunder, which, together with the income and gains therefrom and
additions thereto, shall constitute the Trust Fund. The Trustee shall manage,
invest and reinvest the Trust Fund, collect the income thereof, and make
payments therefrom, all as provided in the Plan.
The Trustee shall be responsible only for the property actually received by
it hereunder. It shall have no duty or authority to compute any amount to be
paid to it by the Employer or to bring any action or proceeding to enforce the
collection from the Employer of any contribution to the Trust Fund.
Title to the Trust Fund, including all funds and investments held hereunder
by the Trustee, shall be and remain in the Trustee, and no Participant, Retired
or Separated Participant or Beneficiary shall have any legal or equitable right
or interest in the Trust Fund except to the extent that such rights or interests
are expressly granted under the provisions of the Plan.
Section 10.02 General Powers. The Trustee shall have all the powers
necessary for the performance of its duties as Trustee. The Trustee shall have
the following powers and immunities and be subject to the following duties:
(a) The Trustee shall receive all contributions hereunder and apply such
contributions as hereinafter set forth. The Trustee shall have the
custody of and safely keep all cash, securities, property and
investments, including any Policies, received or purchased in
accordance with the terms hereof.
(b) Subject to any limitations that may be contained elsewhere in the Plan,
the Trustee shall take control and management of the Trust Fund and
shall hold, sell, buy, exchange, invest and reinvest the corpus and
income of the Trust Fund. All contributions paid to the Trustee under
the Plan shall be held and administered by the Trustee as a single
Trust Fund, and the Trustee shall not be required to segregate and
invest separately any part of the Trust Fund representing accruals or
interests of individual Participants in the Plan, except as provided in
Sections 4.11, 6.03, 10.09, 10.10 and 10.11 hereof.
(c) The Trustee may invest and reinvest the funds of the Trust Fund in any
property, real, personal or mixed, wherever situate, or whether or not
productive of income or consisting of wasting assets, including,
without limitation, any and all common and preferred stocks, bonds,
notes,
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puts, debentures, leaseholds, equipment trust certificates, financial
futures contracts, mortgages (including without limitation, any
collective or part interest in any bond and mortgage or note and
mortgage), certificates of deposit, and oil, mineral or gas properties,
royalties, interests or rights (including equipment pertaining
thereto), without being limited to the classes of property in which
trustees are authorized by law or any rule of court to invest trust
funds and without regard to the proportion any such property may bear
to the entire amount of the Trust Fund.
Nothing to the contrary withstanding, in performing its duties, the
Trustee shall have the power (subject to the provisions of the Plan as
amended from time to time relating to investment discretion and
investment directions) specifically to invest in units of any
collective investment trust or pooled fund sponsored by, or invested in
by, the Sponsor or an affiliate of the Sponsor, including, without
limiting the foregoing, all existing or future common, collective or
mutual trust funds created, administered and maintained pursuant
thereto for which this Trust may be eligible to be a participating
Trust (including, but not limited to, any temporary investment or
"sweep program" funds or common trust funds designed for investment in
real estate established by, or invested in by, the Sponsor or an
affiliate of the Sponsor), as presently constituted or hereafter
amended from time to time (the instrument creating each such group
trust or common trust fund, together with any amendments, modifications
or supplements thereof, heretofore or hereafter made being hereby
incorporated herein and made a part hereof as fully, and for all
intents and purposes, as if set forth herein in their entirety).
The Trustee is expressly authorized to invest all or part of the Trust
Fund in savings accounts, time deposits, certificates of deposit, money
market accounts, repurchase agreements or any other interest-bearing
accounts (regardless of the term of such deposits or investments)
issued by the Sponsor or any of its affiliates, which bear a reasonable
interest rate.
The Trustee is further expressedly authorized to utilize the discount
brokerage operation, if any, offered by the Trustee.
(d) The Trustee may sell or exchange any property or asset of the Trust
Fund at public or private sale, with or without advertisement, upon
terms acceptable to the Trustee and in such manner as the Trustee may
deem wise and proper. The proceeds of any such sale or exchange may be
reinvested as is provided hereunder. The purchaser of any such property
from the Trustee shall not be required to look to the
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application of the proceeds of any such sale or exchange by the
Trustee.
(e) The Trustee shall have full power to mortgage, pledge, lease or
otherwise dispose of the property of the Trust Fund without securing
any order of court therefor, without advertisement, and to execute any
instrument containing any provisions which the Trustee may deem proper
in order to carry out such actions. Any such lease so made by the
Trustee shall be binding, notwithstanding the fact that the term of the
lease may extend beyond the termination of the Plan.
(f) The Trustee shall have the power to borrow money upon terms agreeable
to the Trustee and pay interest thereon at rates agreeable to the
Trustee, and to repay any debts so created.
(g) The Trustee shall have the power to exercise any conversion privilege
or subscription right available in connection with any securities or
other property which it may hold at any time; to oppose, or to consent
to, the organization, consolidation, merger or readjustment of the
finances of any corporation, company or association, or to the sale,
mortgage, pledge or lease of the property of any corporation, company
or association, whose securities it may hold at any time; and to do any
act with reference thereto, including the exercise of options, the
making of agreements or subscriptions and the payment of expenses,
assessments or subscriptions which it may deem necessary or advisable
in connection therewith; to hold and retain any securities or other
property which it may acquire; to write covered listed call options
against existing positions or to close such option contracts; and
generally to exercise any of the powers of any owner with respect to
any stock or other securities or property comprising the Trust Fund.
(h) The Trustee may, through any duly authorized officer or proxy, vote any
share of stock which the Trustee may own from time to time, including
any stock of the Sponsor.
(i) The Trustee shall retain in cash and keep unproductive of income such
funds as from time to time it may deem advisable. The Trustee shall not
be required to pay interest on any such cash in its hands pending
investment, nor shall the Trustee be responsible for the adequacy of
the Trust Fund to discharge any and all payments under the Plan. All
persons dealing with the Trustee are released from inquiry into the
decision or authority of the Trustee to act.
(j) The Trustee may hold stocks, bonds, or other securities in its own name
as Trustee, with or without the designation of said trust estate, or
the name of a nominee selected by it
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for the purpose, but said Trustee shall nevertheless be obligated to
account for all securities received by it as part of the corpus of the
trust estate herein created, notwithstanding the name in which the same
may be held.
(k) The Trustee may or may not consult with legal counsel (who may or may
not be of counsel to the Employer or the Plan Administrator) concerning
any questions which may arise with reference to the construction of
this Plan, its duties hereunder, or any action which it proposes to
take or omit, and the Trustee shall not be deemed imprudent merely by
reason of taking, or refraining to take, any action in accordance with
the opinion of such counsel.
(l) The Trustee may employ such counsel, accountants and other agents as it
shall deem advisable. The Trustee may charge the compensation of such
counsel, accountants and other agents, the Trustee's compensation for
its services in such amounts as may be agreed upon from time to time by
the Employer and the Trustee, and any other expenses necessary in the
administration of this Plan against the Trust Fund to the extent they
are not paid by the Employer.
(m) If the Plan Administrator so desires, the Trustee may use the Trust
Fund to purchase insurance policies or annuity contracts issued by a
Life Insurance Company as provided in the Plan.
(n) The Trustee shall have the power to sell for cash or on credit, to
grant options, convert, redeem, exchange for other securities or other
property or otherwise to dispose of the securities or other property
which it holds at any time; and to engage in writing covered options.
(o) The Trustee may settle, compromise or submit to arbitration, any
claims, debts, or damages, alleged or determined due or owing to or
from the Trust; and may commence or defend suits or legal proceedings
on the Trust's behalf.
(p) The Trustee may manage, administer, operate, lease for any number of
years (regardless of any restrictions on leases made by fiduciaries),
develop, improve, repair, alter, demolish, mortgage, pledge, grant
options with respect to, or otherwise deal with any real property or
interest therein which it may hold at any time; and may hold any such
real property in its own name or in the name of a nominee, with or
without the addition of words indicating that such property is held in
a fiduciary capacity; and may cause to be formed a corporation or
trust, with the aforesaid powers, to hold title to any such real
property, all upon the terms and conditions which it may deem
advisable.
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(q) The Trustee may renew or extend, or participate in the renewal or
extension of, any mortgage upon such terms as it may deem advisable,
and may agree to a reduction in the rate of interest or to any other
modification or change in the terms of any mortgage or guarantee
pertaining thereto, in any manner and to any extent that it may deem
advisable for the protection of the Trust Fund or the preservation of
the value of the investment; may waive any default, whether in the
performance of any covenant or condition of any mortgage or in the
performance of any guarantee, or may enforce any such default in such
manner and to such extent as it may deem advisable; may exercise and
enforce any and all rights of foreclosure, may bid in property for
foreclosure, may take a deed in lieu of foreclosure, with or without
paying a consideration therefor and in connection therewith, may
release the obligation on the bond secured by such mortgage, and may
exercise and endorse, in any action, suit or proceedings at law or in
equity, any rights or remedies in respect to any such mortgage or
guarantee.
(r) The Trustee may form corporations and create trusts to hold title to
any securities or other property, all upon such terms and conditions as
it may deem advisable.
(s) The Trustee may make, execute and deliver as Trustee, any and all
deeds, leases, mortgages, conveyances, contracts, waivers, releases or
other instruments in writing which are necessary or proper for the
accomplishment of any of its powers.
(t) The Trustee may, if the Plan is a profit sharing plan and if the
Employer consents, invest up to the amount specified in Item 10 of the
Adoption Agreement of the Trust Fund in Qualifying Employer Securities,
subject to its fiduciary duties under this article.
(u) The Trustee may designate a bank or trust company as depositary of the
funds or property of the Trust and may retain investment counsel, and
the Trustee named herein may deposit funds in its name as Trustee
without making bond.
(v) Without diminution or restriction of the powers vested by law or
elsewhere in this Plan, and subject to all the provisions of the Plan,
the Trustee, without the necessity of procuring any judicial
authorization therefor or approval thereof, shall be vested with, and
in the application of its best judgment and discretion on behalf of the
beneficiaries of this Plan, shall be authorized to exercise all or any
of the powers specifically permitted by statute or judicial decision
in, or with respect to, a state in which it does business.
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(w) The Trustee may do all acts which it may deem necessary to carry out
any of the powers either set forth herein or which it otherwise deems
to be in the best interest of the Trust Fund.
Section 10.03 Reliance on Plan Administrator and Employer. Until notified
pursuant to Section 12.03 hereof that the Plan Administrator or other person
authorized to act for the Employer has ceased to act or is no longer authorized
to act for the Employer, the Trustee may continue to rely on the authority of
such Plan Administrator or other person. The Trustee may rely upon any
certificate, notice or direction purporting to have been signed on behalf of the
Employer which the Trustee believes to have been signed by the Plan
Administrator or other person or persons authorized to act for the Employer. The
Trustee may request instructions in writing from the Plan Administrator on other
matters and may rely and act thereon.
Section 10.04 Accounts and Reports. The Trustee shall keep an accurate
record of its administration of the Trust Fund, including a detailed account of
all investments, receipts and disbursements, and other transactions hereunder.
All accounts, books and records relating hereto shall be open for inspection to
any person designated by the Plan Administrator or the Employer at all
reasonable times. Within sixty (60) days following the close of each Plan Year,
the Trustee shall file with the Plan Administrator a written report setting
forth all investments, receipts and disbursements and other transactions during
the Plan Year, and such report shall contain an exact description of all
securities purchased, exchanged or sold, and the cost or net proceeds of each
transaction, and shall show the securities and investments held at the end of
such Plan Year, and the market value and cost, as carried on the books of the
Trustee, of each item thereof.
The Trustee shall also provide the Employer and the Plan Administrator with
such other information in its possession as may be necessary for the Plan
Administrator to comply with the reporting and disclosure requirements of ERISA.
Upon the expiration of ninety (90) days from the date of filing such report
and information, the Trustee shall be forever released and discharged from all
liability and accountability to anyone with respect to the recording of its acts
or transactions shown in such statement, except with respect to any such acts or
transactions as to which the Employer shall file with the Trustee written
objections within such ninety (90) day period.
Section 10.05 Insurance. It shall be the duty of the Plan Administrator to
direct the Trustee in writing as to the amount and nature of any Policies to be
purchased on the life of any Participant or Separated or Retired Participant and
the name of the Life Insurance Company from which such purchase shall be made.
The Plan Administrator shall also direct the Trustee as to the time that such
Policies may be discontinued or transferred to a Participant or Separated or
Retired Participant and the conditions under which the transfer shall be made.
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Section 10.06 Disbursements. The Trustee, upon written instructions from
the Plan Administrator, shall make distributions or payments, including monthly
payments, to the Participants, Retired or Separated Participants, and
Beneficiaries who qualify for such benefits and shall purchase, transfer,
discontinue or surrender any Policies. The Trustee shall have no liability to
the Employer, the Plan Administrator or any other person in making such
distributions or payments. The Trustee shall not be required to determine or
make any investigation to determine the identity or mailing address of any
person entitled to benefits under the Plan and shall have discharged its
obligation in that respect when it shall have sent checks and other papers by
ordinary mail to such person or persons at such addresses as may be certified to
it in writing by the Plan Administrator, except in the case of malfeasance,
gross negligence or willful misconduct in such matters by the Trustee.
Section 10.07 Payment in Kind. Whenever the Trustee is empowered hereunder
to make any payment or distribution, the Trustee shall have the power, in its
sole discretion, to make such payment in cash or in kind, or partly in cash and
partly in kind. The assets of the Trust Fund shall be valued, for the purposes
of making, or of computing the amount of, such payment or distribution, at their
fair market value at the dates of such payments or distributions or at any other
date, as the Trustee shall, in its absolute discretion, determine.
Section 10.08 Authority of Trustee. At no time during the administration of
the Trust Fund shall the Trustee be required to obtain any court approval of any
act required of it in connection with the performance of its duties or in the
performance of any act required of it in the administration of its duties as
Trustee. The Trustee shall have full authority to exercise its judgement in all
matters and at all times without court approval of such decisions; provided,
however, that if any application to, or proceeding or action in, the courts is
made, only the Employer and the Trustee shall be necessary parties, and no
Participant in the Plan or other person having an interest in the Trust Fund
shall be entitled to any notice or service of process. Any judgment entered in
such proceeding or action shall be conclusive upon all persons claiming an
interest under the Trust Fund.
Section 10.09 Appointment of Investment Manager. The Employer, if it has so
elected in Item 10 of the Adoption Agreement, may at any time and from time to
time appoint in writing an Investment Manager or Managers to manage all or any
portion of the assets of the Plan, and may revoke any such appointment
previously made. For purposes hereof, the Employer shall mean only the entity
executing the Adoption Agreement as "Employer", but shall not mean any
organization executing the Plan as an "Adopting Employer." While such an
appointment is in effect, the relations among the Plan Administrator, Employer,
Investment Manager and Trustee shall be governed by the following provisions:
(a) The Employer shall certify to the Trustee the name or names of any
Investment Manager appointed by it to manage the investment or
reinvestment of all or any portion of the Trust Fund. Such certificate
shall also state that the
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Investment Manager has acknowledged his Fiduciary status with respect
to the Plan in writing.
(b) The Trustee shall segregate any portion of the Trust Fund held by it
which will be subject to the management of an Investment Manager into
one or more separate accounts to be known as investment manager
accounts and shall charge any expenses related to investments directed
by an Investment Manager against such accounts. Each Investment Manager
shall have the right and power to manage the investment and
reinvestment of his investment manager account. The Trustee shall
follow the directions of the Investment Manager with respect to the
account of such Investment Manager and shall not be obligated to invest
or otherwise manage any such investment manager account. All directions
given by an Investment Manager to the Trustee shall be in writing,
signed by an officer or a partner of the Investment Manager or by such
other person or persons as may be designated by such officer or
partner. Subject to such conditions as may be approved by the Employer
and Trustee, the Investment Manager may place direct orders for the
purchase or sale of securities or other property for its investment
manager account, provided, that the Trustee shall nevertheless retain
custody of the assets comprising said account.
(c) If the Employer, by written notice to the Trustee, terminates the
authority of an Investment Manager but does not appoint a successor to
manage the investment and reinvestment of the account of such
Investment Manager, the portion of the Fund then held in such
investment manager account shall return to the unsegregated portion of
the Fund and the Trustee shall have authority to manage the investment
and reinvestment of such account. Until receipt of a written notice
terminating the authority of an Investment Manager, the Trustee shall
be fully protected in relying upon the latest prior written notice of
appointment of an Investment Manager.
(d) Any Investment Manager may, in writing, authorize the Trustee to invest
any portion of his investment manager account in short-term
investments. The Trustee, in its sole discretion, may make such
investments either directly or by investment collectively with other
assets, including but not limited to investment in any common,
commingled, collective, mutual or pooled trust fund established and
maintained by the Trustee, or an affiliate of the Trustee, for the
investment of funds administered in a fiduciary capacity.
(e) The Trustee shall not be responsible for any loss caused by its acting
upon any notice, direction or certification of any Investment Manager
appointed by the Employer which the Trustee reasonably believes to be
genuine. The Trustee
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shall have no duty to question any direction, action or inaction of any
Investment Manager taken as provided in this section. The Trustee shall
have no duty to review the securities or other property held in any
investment manager account or to make any suggestions to any Investment
Manager or to the Employer with respect to the investment,
reinvestment, or disposition of investments in any investment manager
account. The Trustee shall not be responsible for the results arising
from the Trustee's compliance with the instructions of any Investment
Manager.
(f) The Trustee shall not be responsible for determining the reasonableness
of any compensation paid to or agreed to be paid to an Investment
Manager. Any such compensation to an Investment Manager shall be paid
from the Trust Fund, if the Plan Administrator so directs.
Section 10.10 Direction by the Employer. If so elected by the Employer in
Item 10 of the Adoption Agreement, the Employer shall have the right to manage
the investment and reinvestment of all or any portion of the Trust Fund. For
purposes hereof, the Employer shall mean only the entity executing the Adoption
Agreement as "Employer", but shall not mean any organization executing the Plan
as an "Adopting Employer." The Employer shall furnish the Trustee with written
instructions with respect to such investments. The Trustee shall segregate any
portion of the Trust Fund held by it which is subject to the management of the
Employer into one (1) or more separate accounts and shall charge any expenses
related to investments directed by the Employer against such accounts.
Section 10.11 Direction by Participants. If so elected by the Employer in
Item 10(a) of the Adoption Agreement, then each Participant shall manage the
investment and reinvestment of all or a portion (as indicated in Item 10(a)) of
his Accounts.
If so elected by the Employer in Item 10(b) of the Adoption Agreement, then
the Plan Administrator may elect, by providing written notice to the Trustee on
a form and in a manner designated by the Trustee, to permit Participants to
direct the investment of their Accounts. The Plan Administrator may limit such
investments to investment options which the Plan Administrator and the Trustee
have jointly approved. The Plan Administrator shall establish uniform and
nondiscriminatory rules and restrictions with respect to such directed
investments.
The Trustee shall carry out the investment directions of a Participant
hereunder as soon as practicable after receipt of each such direction, but
nothing herein shall be construed to compel the Trustee to accept as a directed
investment hereunder an investment which the Trustee, in its sole discretion,
determines inadvisable to make, or to continue to make. Any election hereunder
shall be in writing in a form acceptable to the Trustee and shall remain in
effect until a contrary election is properly submitted by the Participant to the
Trustee (including an election to reinvest the previously Participant directed
amount in the general assets of the Trust Fund), or the Trustee deems it
advisable to
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invoke the preceding sentence and gives written notice of its intent to the
Participant.
For purposes hereof, the Employer shall mean only the entity executing the
Adoption Agreement as the "Employer", but shall not mean any organization
executing the Plan as an "Adopting Employer." The Plan Administrator shall
notify the Trustee in writing of any rules which it has established with respect
to Participant directed investments. The Trustee shall segregate any portion of
the Fund held by it which is subject to the management of a Participant into one
(1) or more separate accounts to be known as "participant directed investment
accounts" and shall charge any expenses related to investments directed by a
Participant against his accounts. All investment income or losses on investments
in such separate accounts shall be credited only to such separate accounts. Such
separate accounts shall not share in any Income of the remaining general assets
of the Trust Fund. If permitted by the Trustee, the Plan Administrator may
direct the Trustee that loans to Participants made pursuant to Section 5.02, to
the extent permissible under the limitations of both Section 5.02 and this
section, shall be deemed to be directed investments hereunder.
However, any investment of assets of a participant directed investment
account in collectibles (within the meaning of Section 408(m)(2) of the Code)
occurring after December 31, 1981, is prohibited, or, if inadvertently made,
shall be considered to be a distribution from the Plan.
Section 10.12 Protection of Trustee and Investment Manager When Participant
or Employer Directs Investments. Neither the Trustee nor any Investment Manager
shall be responsible for any loss caused by its acting upon any notice,
direction or certification furnished by any Participant or the Employer pursuant
to Section 10.10 or Section 10.11 which the Trustee or Investment Manager
reasonably believes to be genuine. Neither the Trustee nor any Investment
Manager shall have the duty to question any direction, action or inaction of any
Participant or the Employer acting pursuant to Section 10.10 or Section 10.11.
Neither the Trustee nor any Investment Manager shall have the duty to review the
securities or other property held in the account of any such Participant or to
make any suggestions to such Participant or to the Employer with respect to the
investment, reinvestment or disposition of investments made by any such
Participant or by the Employer. Neither the Trustee nor any Investment Manager
shall be responsible for the results arising from their compliance with the
instructions of any such Participant or the Employer.
Section 10.13 Indemnification of Trustee When Acting Pursuant to Investment
Directions. The Employer agrees to hold the Trustee harmless and defend the
Trustee against any claims alleged to have been caused by its action pursuant to
investment instructions from or by its failure to act in the absence of
investment instructions from any Investment Manager, Participant or the Employer
except in the case of malfeasance, gross negligence or willful misconduct in
such matters by the Trustee.
Section 10.14 Right of Trustee to Direct Investments. If no Investment
Manager has been appointed, if the Employer does not have or
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has not exercised the right to manage the investment and reinvestment of all or
any portion of the Fund, and if Participants do not have or have not exercised
the right to direct the investment and reinvestment of all or any portion of
their accounts, the Trustee shall be free to manage the investment and
reinvestment of all or any portion of the Fund under the powers granted by this
Trust as if Sections 10.09 through 10.13 were not a part of this Trust.
Section 10.15 Trustee to Trustee Transfers. A direct transfer of plan
assets attributable to a Participant's participation in other pension, profit
sharing or stock bonus plans qualified under Section 401(a) of the Code
(including notes evidencing the Participant's debt to the Plan on plan loans) to
this Plan from such other plan by that plan's trustee may be allowed in cash or
other property acceptable to the Trustee pursuant to this Section 10.15. For
Plan Years commencing before January 1, 1989, a direct transfer of assets to
this Plan pursuant to this Section 10.15 may be allowed, subject to the
discretion of the Employer. For Plan Years commencing after December 31, 1988, a
direct transfer of assets to this Plan shall be allowed, if so elected by the
Employer in Item 9 of the Adoption Agreement. However, any restrictions on
distributions of such transferred assets under such other plan which are also
required under current law shall be maintained under this Plan with respect to
such assets. In no event shall transfers be allowed from plans which would
require the Plan to offer forms of benefit payment which are not indicated in
Item 19 of the Adoption Agreement. Likewise, the Trustee may make such a direct
transfer of assets attributable to a Participant's participation in this Plan to
another pension, profit sharing or stock bonus plan qualified under Section
401(a) of the Code from this Plan.
A separate bookkeeping account shall be established on behalf of each
Participant on whose behalf assets have been transferred, and the balance of
each such account shall be fully vested at all times. Such direct trustee to
trustee transfers shall not be considered in determining the maximum benefits
permissible under the Plan pursuant to Section 4.07 hereof or as contributions
by the Employer under Sections 3.01 or 13.03 of this Plan.
A Participant may direct the Trustee to invest the entire amount
credited to such Participant's separate account in a particular manner or in a
diversity of manners, subject to prior written approval by the Trustee and the
Plan Administrator. Such individual election shall be made to the Trustee in
writing on a form, and at such time, as prescribed by the Trustee. The Trustee
shall carry out any such direction of such Participant as soon as practicable
after receipt of the individual election, shall segregate such Participant's
account from the general assets of the Trust Fund, and shall earmark the
directed investment as allocable only to such Participant's account.
Any direction by a Participant shall remain in effect until another valid
direction has been made by the Participant or until the Trustee is authorized by
the Participant to permit the amount credited to the Participant's account to be
reinvested as a general asset of the Trust Fund. The Trustee shall be fully
protected in relying upon the latest valid written investment direction of a
Participant, and shall not be
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responsible for any loss caused by its acting on any direction which the Trustee
reasonably believes to be valid. The Trustee shall have no duty to question any
direction, action or inaction of any Participant taken pursuant to this section,
nor shall the Trustee have a duty to review any investment or to make any
suggestions with respect to the investment, reinvestment or disposition of
investments under an individually directed account. Notwithstanding the
foregoing, however, the Trustee shall be responsible in such matters in the case
of its malfeasance, gross negligence or willful misconduct.
Unless, upon prior approval by the Trustee, a Participant directs his
separate account be invested apart from the general assets of the Trust Fund,
each such separate account shall be credited each Plan Year with the net rate of
investment return earned by the Trust Fund, as calculated annually by the Plan
Administrator.
Section 10.16 Custodial Duties. The Trustee may delegate any of its
ministerial powers or duties hereunder, including the signing of any checks
drawn on its account, to any one of its agents or employees. In addition, if an
appropriate election has been made in Item 10 of the Adoption Agreement, the
Trustee may delegate its responsibility to physically hold and safeguard the
assets of the Plan to a custodian which is a duly licensed bank or such other
person who demonstrates to the satisfaction of the Commissioner of Internal
Revenue that the manner in which that other person shall discharge its custodial
duties shall be consistent with the requirements of the Code.
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ARTICLE 11
AMENDMENT AND TERMINATION OF THE PLAN
Section 11.01 Amendment of Prototype Plan Document. By the authority
delegated by the Employer in Item 28 of the Adoption Agreement, the Sponsor
shall have the power, at any time and from time to time, to modify, alter or
amend the Adoption Agreement and/or this prototype plan document, subject to the
provisions of this article. The Sponsor may amend any part of the Plan. For
purposes of Sponsor amendments, the mass submitter shall be recognized as the
agent of the Sponsor. If the Sponsor does not adopt the amendments made by the
mass submitter, it will no longer be identical to or a minor modifier of the
mass submitter plan. A copy of any such amendment or amendments shall be
delivered within thirty (30) days after the adoption thereof to each Employer
who has adopted the prototype plan document, and no such amendment or amendments
shall become effective until at least thirty (30) days after written notice
thereof has been given to each such Employer.
Section 11.02 Amendment of the Adoption Agreement and Plan. The Employer
may (i) change the choice of options in the Adoption Agreement, (ii) add
overriding language in the Adoption Agreement when such language is necessary to
satisfy Section 415 or Section 416 of the Code because of the required
aggregation of multiple plans, and (iii) add certain model amendments published
by the Internal Revenue Service which specifically provide that their adoption
will not cause the Plan to be treated as individually designed. An Employer that
amends the Plan for any other reason, including a waiver of the minimum funding
requirement under Section 412(d) of the Code, shall no longer participate in
this prototype plan and shall be considered to have an individually designed
plan. A copy of any amendments to the Adoption Agreement shall be filed with the
Trustee. Only the Employer which is the entity executing the Adoption Agreement
as the "Employer," and not any organization executing the Plan as an "Adopting
Employer," shall have the authority to amend the Plan under this article.
Section 11.03 Limitations on Amendments. Subject to the provisions of
Section 12.05 hereof, neither the Trustee nor the Employer shall have the right
to amend the prototype plan document, the Plan or the Adoption Agreement in the
following respects.
(a) No amendment may be made which shall vest in any Employer, directly or
indirectly, any interest in, or ownership or control of, any of the
present or subsequent funds set aside for Participants pursuant to the
Plan.
(b) No part of funds of the Trust shall, by reason of any amendment, be
used for or diverted to purposes other than for the exclusive benefit
of Participants, Retired or Separated Participants, or their
Beneficiaries or for administration expenses of the Plan.
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(c) No amendment to the Plan shall be effective to the extent that it has
the effect of decreasing a Participant's accrued benefit.
Notwithstanding the preceding sentence, a Participant's account balance
may be reduced to the extent permitted under Section 412(c)(8) of the
Code. For purposes of this paragraph, a Plan amendment which has the
effect of decreasing a Participant's account balance or eliminating an
optional form of benefit, with respect to benefits attributable to
service before the amendment shall be treated as reducing an accrued
benefit. Furthermore, if the vesting schedule of a Plan is amended, in
the case of an Employee who is a Participant as of the later of the
date such amendment is adopted or the date it becomes effective, the
nonforfeitable percentage (determined as of such date) of such
Employee's Accounts will not be less than the percentage computed under
the Plan without regard to such amendment.
(d) No amendment may be made to Item 16 of the Adoption Agreement under
Section 11.02 hereof by the Employer, or to the Plan by Plan amendment
under Section 11.01 hereof by the Sponsor, that may in any way directly
or indirectly affect the computation of the Participant's
nonforfeitable percentage, unless each Participant who has completed
three (3) or more Years of Service at the date of adoption of such
amendment is given the right to elect irrevocably to have his
nonforfeitable benefits computed without regard to such amendment. For
Participants who do not have at least one (1) Hour of Service in any
Plan Year beginning after December 31, 1988, the preceding sentence
shall be applied by substituting "five (5)" for "three (3)" where such
number appears. Such election must be made within the period beginning
on the date of adoption of the amendment and ending sixty (60) days
after the latest of:
(i) the date the amendment is adopted,
(ii) the date the amendment becomes effective, and
(iii) the date on which the Participant is furnished written notice of
the amendment.
Section 11.04 Removal or Resignation of Trustee. The Trustee may at any
time be removed as Trustee of the Plan by written action of the governing body
of the Employer with or without cause, upon written notice to that effect sent
or delivered to the Trustee, such removal to be effective sixty (60) days after
such notice is given. For purposes hereof, the Employer shall mean only the
entity executing the Adoption Agreement as "Employer", but shall not mean any
organization executing the Plan as an "Adopting Employer".
The Trustee may resign as Trustee of the Plan upon written notice to that
effect sent or delivered to the Employer, such resignation to be effective sixty
(60) days after such notice is given.
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Upon mutual, written agreement by the Employer and the Trustee, the sixty
(60) day period in this section may be waived or a shorter period substituted.
For purposes hereof, the term "Trustee" shall include any individual
Trustee if more than one (1) Trustee exists.
Section 11.05 Successor Trustee and Certain Plan Amendments. In the event
the Employer amends the Plan, other than a modification or amendment of election
of options under the Adoption Agreement, or in the event of the resignation or
removal of the Trustee other than with the approval of the Sponsor, the Employer
shall be required to furnish evidence satisfactory to the Sponsor that it has
adopted a new tax-qualified plan, as an amendment to the Plan, and appoint a
successor trustee in place of the resigned or removed Trustee within one hundred
and twenty (120) days after such resignation or removal. In the absence of such
action, the Employer shall be deemed to have terminated the Plan, and the
termination provisions of this article shall apply.
Within one hundred and twenty (120) days after written notice of removal or
resignation, the Trustee shall file with the Employer affected a written report
setting forth all investments, receipts and disbursements and other transactions
effected by it since the end of the preceding Plan Year. Such report shall be in
the same form and be subject to the same requirements as the annual report.
The Trustee, if not paid by the Employer, is authorized to reserve such sum
of money or to liquidate such property and reserve the proceeds thereof as it
may deem advisable for the payment of its expenses and/or charges in connection
with the settlement of its account or otherwise, and any such balance of such
reserve remaining after the payment of such expenses and charges shall be paid
over to the successor trustee or trustees, or to the Participants in the event
of termination.
Section 11.06 Intent to Continue Plan. The Employer has established the
Plan with the bona fide intention and expectation that from year to year it will
be able, and will deem it advisable, to continue the Plan and to make its
contributions as herein provided. However, the Employer realizes that
circumstances not now foreseen or circumstances beyond its control may make it
either impossible or inadvisable to continue the Plan or to make such
contributions. The Employer shall have the right to modify, suspend, or
discontinue contributions to the Plan at any time and from time to time, and
such action shall not be deemed to be a termination of the Plan unless it
constitutes a complete discontinuance of contributions by the Employer to the
Plan.
Section 11.07 Termination or Partial Termination of the Plan by the
Employer. In the event the Employer concludes that it is impossible or
inadvisable for the Employer to continue the Plan or to continue to make its
contributions as herein provided, the governing body of the Employer shall have
the right to terminate the Plan by an appropriate resolution or resolutions
which shall specify the date of termination. A certified copy of such resolution
or resolutions shall be delivered to the Plan Administrator and the Trustee, and
as soon as possible thereafter the
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Plan Administrator shall send or deliver to each then Participant a notice of
such action.
If a determination is made that the Plan has experienced a complete or
partial termination, the accounts of affected Participants shall become
nonforfeitable without regard to Section 8.02 hereof.
Section 11.08 Termination of the Plan on Happening of Certain Events. The
Plan shall automatically terminate upon the happening of any of the following
events:
(a) Discontinuance or 1iquidation of the Employer's business;
(b) The merger or consolidation of the Employer with any other corporation
or business organization, or the sale by the Employer of substantially
all of its assets to any corporation or business organization which
shall fail to adopt and continue the Plan within ninety (90) days from
the effective date of such consolidation, merger or sale of assets.
(c) Complete discontinuance of contributions by the Employer to the Plan.
Section 11.09 Distribution of Trust Fund Upon Complete Termination. Upon
complete termination of the Plan, each Participant, Retired or Separated
Participant, or Beneficiary shall be entitled to receive any amounts then
credited to his Accounts in the Trust Fund. The Trustee shall make payment of
such amounts pursuant to the provisions of Section 8.06 hereof as if the former
Participants of the Plan upon termination were Separated Participants; provided,
however, that if the Plan does not offer an annuity option and the Employer does
not maintain any other defined contribution plan (other than an employee stock
ownership plan as defined in Section 4975(e)(7) of the Code), the Participant's
account balance may, without the Participant's consent, be distributed to the
Participant. Upon the distribution of all of the Trust Funds as aforesaid, the
Trustee shall be discharged from all obligations under the Trust and no
Participant, Retired or Separated Participant, or Beneficiary shall have any
further rights or claim therein.
Section 11.10 Successor Organization. In the event of a merger or
consolidation of any Employer or transfer of all or substantially all of its
assets to any corporation, partnership or association, provision may be made by
such successor corporation, partnership or association for its election of the
continuance of this Plan as to such successor entity. Such successor shall, upon
its election to continue this Plan, be substituted in place of the transferor
Employer by an instrument duly authorizing such substitution and duly executed
by such Employer and its successor. Upon notice of such substitution,
accompanied by a certified copy of the resolutions of the governing body of such
Employer and the governing body of its successor authorizing such substitution
and delivered to the Trustee, the Trustee shall be authorized to recognize such
successor in the place of the transferor Employer.
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Section 11.11 Minimum Benefit Upon Plan Merger. Consolidation or
Transfer of Assets. In the event of any merger or consolidation of the Plan
with, or the transfer of assets or liabilities of the Plan to, any other plan or
trust, each Participant, Retired or Separated Participant and Beneficiary shall
be entitled upon any subsequent termination of the successor plan or trust
immediately after the merger, consolidation or transfer to a benefit in an
amount not less than he would have been entitled to receive if the Plan had
terminated immediately before the merger, consolidation or transfer.
Section 11.12 Termination of Plan with Respect to an Adopting Employer.
In the event that two or more Employers participate in a single Trust Fund
pursuant to the provisions of Section 4.08 hereof, each Adopting Employer
reserves the right to terminate its participation in the Plan in accordance with
Section 11.07 hereof, and the occurrence of either of the events set out in
Section 11.08 hereof with respect to an Adopting Employer shall constitute
termination of such Adopting Employer's Plan. In the event of any such
termination, the Trustee shall segregate the portion of the Trust Fund
attributable to participation in the Plan by the Employees of such Employer, and
the amount so segregated shall be subject to the provisions of Section 11.09
hereof.
Section 11.13 Special Distribution Rules. Elective Deferrals, Qualified
Non-elective Contributions, and Qualified Matching Contributions, and Income
allocable to each are not distributable to a Participant or his Beneficiary in
accordance with such Participant's or Beneficiary's election, earlier than upon
separation from Service, death, or Disability. However, such amounts may also be
distributed upon:
(a) termination of the Plan without the establishment of another
defined contribution plan;
(b) the disposition by a corporation to an unrelated corporation of
substantially all of the assets (within the meaning of section
409(d)(2) of the Code) used in a trade or business of such
corporation if such corporation continues to maintain this Plan
after the disposition, but only with respect to Employees who
continue employment with the corporation acquiring such assets;
(c) the disposition by a corporation to an unrelated entity of such
corporation's interest in a subsidiary (within the meaning of
section 409(d)(3) of the Code) if such corporation continues to
maintain this Plan, but only with respect to Employees who
continue employment with such subsidiary.
(d) the attainment of age fifty-nine and one-half (59-1/2) in the
case of a profit-sharing plan.
(e) the hardship of the Participant as described in Section 5.01.
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All distributions that may be made pursuant to one or more of
the foregoing distributable events are subject to the spousal
and Participant consent requirements (if applicable) contained
in Sections 401(a)(11) and 417 of the Code.
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ARTICLE 12
CERTAIN PROVISIONS AFFECTING THE EMPLOYER
Section 12.01 Duties of the Employer. The Employer shall furnish the
Trustee and the Plan Administrator with the information required herein. The
Employer shall make its contributions as the same may be appropriated by due
action, which contributions may be in cash or in other property acceptable to
the Trustee. The Employer shall keep accurate books and records with respect to
its Employees and their compensation.
Section 12.02 Right of Employer to Discharge Employees. The adoption and
maintenance of the Plan shall not be deemed to constitute a contract between the
Employer and any Employee, or to be a consideration for, or an inducement or
condition of, the employment of any person. Nothing herein contained, nor any
action taken hereunder, shall be deemed to give to any Employee the right to be
retained in the Service of the Employer or to interfere with the right of the
Employer to discharge any Employee at any time, nor shall it be deemed to give
to the Employer the right to require the Employee to remain in its Service, nor
shall it interfere with the Employee's right to terminate his Service at any
time.
Section 12.03 Information to be Furnished. As soon as practicable after
the close of each Plan Year, the Employer shall deliver to the Plan
Administrator a full and complete list of all Employees entitled to participate
in the Plan during such Plan Year, together with the information required to
perform the allocation described in Article 4 hereof with respect to such Plan
Year. As soon as possible after the completion of the Adoption Agreement, and
from time to time thereafter, the Employer and the Plan Administrator shall
certify to the Trustee the names and specimen signatures of any representatives
of the Employer who have authority to act on its behalf with respect to the
Plan.
Section 12.04 Communications from Employer to Trustee. All notices,
certifications, directions, information and other communications from the
Employer to the Trustee shall be in writing subscribed by an officer of the
Employer. The Trustee may rely upon and shall be protected in acting upon any
information furnished to it by the Employer as aforesaid. Any certification by
the Employer of the information required or permitted to be certified to the
Trustee pursuant to the provisions of the Plan, shall, for all purposes of the
Plan, be binding upon all parties in interest; provided that whenever any
Employee proves to the satisfaction of the Employer that his age, period of
employment or his compensation as so certified is incorrect, the Employer shall
correct such certification unless the Employee is deemed to be stopped.
Section 12.05 No Reversion to Employer. The Employer has no beneficial
interest in the Trust Fund, and no part of the Trust Fund shall revert or be
repaid to the Employer, directly or indirectly, except:
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(a) in the event of initial non-qualification as described in
Section 15.07 hereof, in which case the contribution with
interest, if any, shall be returned to the Employer within one
(1) year after the date such initial qualification is denied;
(b) in the event that a contribution is made to the Plan conditioned
upon qualification of the Plan as amended, such contribution
shall be returned to the Employer upon the determination that
the amended Plan fails to qualify under the Code; provided that:
(i) the Plan amendment is submitted to the Internal Revenue
Service for qualification within one (1) year after the
date the amendment is adopted, and
(ii) such contribution that was made conditioned upon the
Plan's requalification is returned to the Employer
within one (1) year after the date the Plan's
requalification is denied;
(c) in the event that the deduction of an Employer contribution to
the Plan under Section 404 of the Code is disallowed, in which
case the contribution (to the extent disallowed) shall be
returned to the Employer, upon the request of the Employer,
within one (1) year after the disallowance of the deduction; or
(d) in the event that any Employer contribution is made by mistake
of fact, in which case the amount of such mistaken contribution
shall be returned to the Employer provided no more than one (1)
year has elapsed since the date of payment by the Employer of
the mistaken contribution.
Section 12.06 Indemnification of Trustee. While not relieving the
Trustee of any responsibility or liability for its acts or failure to act
hereunder, the Employer agrees to indemnify the Trustee against any liability,
cost or damage that the Trustee may incur in the exercise or performance of its
duties and powers hereunder, except in the case of malfeasance, gross
negligence or willful misconduct by the Trustee.
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ARTICLE 13
TOP HEAVY PLANS
Section 13.01 Top Heavy Plans. The provisions of this article are
designed to meet the requirements of Section 416 of the Code and shall apply in
every Plan Year beginning after December 31, 1983, in which this Plan is a Top
Heavy Plan. Accordingly, if the Plan is a Top Heavy Plan in any Plan Year
beginning after December 31, 1983, the provisions of this article shall
automatically supersede any conflicting provisions in the Plan or Adoption
Agreement. If the Plan covers employees of two or more Employers who are not
members of the same Controlled Group, the determination as to whether the Plan
is a Top Heavy Plan and the application of the minimum benefit and vesting
requirements shall apply separately as to such Employers.
Section 13.02 Definitions. For purposes of this article, and only this
article, unless a term defined in this article is the subject of explicit
reference elsewhere in the Plan, the following terms when used herein, unless
the context specifically or clearly indicates otherwise, shall have the meanings
set forth hereinafter:
(a) "Compensation" shall mean, for each Employee, Compensation as
that term is defined in Section 415(c)(3) of the Code, plus
amounts contributed by the Employer pursuant to a salary
reduction agreement which are excludable from the employee's
gross income under Section 125, Section 402(a)(8), Section
402(h) or Section 403(b) of the Code. However, "Compensation"
shall not include compensation in excess of two hundred thousand
dollars ($200,000), as adjusted by the Secretary at the same
time and in the same manner as under Section 415(d) of the Code.
(b) "Determination Date" shall mean, with respect to any Plan Year
subsequent to the first Plan Year, the last day of the preceding
Plan Year. For the first Plan Year of the Plan, the
Determination Date shall be the last day of such Plan Year.
(c) "Key Employee" shall mean any Employee or former Employee (or
Beneficiary of such Employee or former Employee) who, at any
time during the determination period, was (i) an officer of the
Employer having an annual Compensation greater than fifty
percent (50%) of the maximum dollar limitation in effect under
Section 415(b)(1)(A) of the Code for any such Plan Year, (ii) an
owner (or a person considered an owner under Section 318 of the
Code) of one (1) of the ten (10) largest interests in the
Employer if such interest is directly or indirectly greater than
one half percent (1/2%), and such individual's Compensation
exceeds the maximum dollar limitation under Section 415(c)(1)(A)
of the Code for any such Plan Year, (iii) an owner of more than
five percent (5%) of the Employer or
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(iv) an owner of more than one percent (1%) of the
Employer who has an annual Compensation of more than one
hundred and fifty thousand dollars ($150,000). The
determination period is the Plan Year containing the
Determination Date and the four (4) preceding Plan
Years. The determination of who is a Key Employee shall
be made in accordance with Section 416(i)(1) of the Code
and regulations thereunder.
(d) "Non-Key Employee" shall mean any Employee who is not a Key
Employee.
(e) "Permissive Aggregation Group" shall mean the Required
Aggregation Group of plans plus any other plan or plans of the
Employer which, when considered as a group with the Required
Aggregation Group, would continue to satisfy the requirements of
Sessions 401(a)(4) and 410 of the Code.
(f) "Present Value" shall mean the present value of a benefit based
only on the interest and mortality rates specified in Item 20 of
the Adoption Agreement if the Employer also maintains a defined
benefit pension plan.
(g) "Required Aggregation Group" shall mean as follows:
(1) each qualified plan of the Employer in which at least
one (1) Key Employee participates or participated at any
time during the determination period (regardless of
whether the plan terminated), and
(2) any other qualified plan of the Employer which enables a
plan described in the preceding subsection (1) to meet
the requirements of Sections 401(a)(4) or 410 of the
Code.
(h) "Super Top Heavy Plan" shall mean, for any Plan Year beginning
after December 31, 1983, the Plan if it would be a Top Heavy
Plan under Section 13.02(i) hereof if the words "ninety percent
(90%)" were substituted for the words "sixty percent (60%) in
subsection 13.02(i) hereof.
(i) "Top Heavy Plan" shall mean, for any Plan Year beginning after
December 31, 1983, the Plan if any of the following conditions
exists:
(1) If the Top Heavy Ratio for this Plan exceeds sixty
percent (60%) and this Plan is not part of any Required
Aggregation Group or Permissive Aggregation Group of
plans.
(2) If this Plan is a part of a Required Aggregation Group
of plans, but not part of a Permissive Aggregation
Group, and the Top Heavy Ratio for the Required
Aggregation Group of plans exceeds sixty percent (60%).
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(3) If this Plan is a part of a Required Aggregation Group
and is also a part of a Permissive Aggregation Group,
and the Top Heavy Ratio for the Permissive Aggregation
Group exceeds sixty percent (60%).
(j) "Top Heavy Ratio" shall mean as follows:
(1) If the Employer maintains one (1) or more qualified
defined contribution plans (including any simplified
employee pension plan under Section 408(k) of the Code),
but the Employer has not maintained any qualified
defined benefit pension plan which during the five (5)
year period ending on the Determination Date(s) has or
has had accrued benefits, then the Top Heavy Ratio for
this Plan alone or for the Required or Permissive
Aggregation Group, as appropriate, is a fraction, the
numerator of which is the sum of the account balances of
all Key Employees thereunder as of the Determination
Date(s) (including any part of any account balance
distributed in the five (5) year period ending on the
Determination Date(s)), and the denominator of which is
the sum of all account balances (including any part of
any account balance distributed in the five (5) year
period ending on the Determination Date(s)), both
computed in accordance with Section 416 of the Code and
the regulations thereunder. Both the numerator and
denominator of the Top Heavy Ratio are increased to
reflect any contribution not actually made as of the
Determination Date(s), but which is required to be taken
into account on that date under Section 416 of the Code
and the regulations thereunder.
(2) If the Employer maintains one (1) or more qualified
defined contribution plans (including any simplified
employee pension plan under Section 408(k) of the Code),
and the Employer maintains or has maintained one (1) or
more qualified defined benefit pension plans which
during the five (5) year period ending on the
Determination Date(s) has or has had accrued benefits,
then the Top Heavy Ratio for the Required or Permissive
Aggregation Group, as appropriate, is a fraction, the
numerator of which is the sum of account balances for
all Key Employees thereunder determined in accordance
with subsection (j)(l) herein and the present value of
accrued benefits for all Key Employees thereunder as of
the Determination Date(s), and the denominator of which
is the sum of the account balances for all Participants
thereunder determined in accordance with subsection
(j)(l) herein and the present value of accrued benefits
for all Participants thereunder as of the Determination
Date(s), all determined in accordance with Section 416
of the Code and regulations thereunder. The accrued
benefits under a qualified defined benefit pension plan
in both
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the numerator and denominator of the Top Heavy Ratio are
increased for any distribution of an accrued benefit
made in the five (5) year period ending on the
Determination Date(s).
(3) For purposes of the preceding subsections (j)(1) and
(j)(2), the value of account balances and the present
value of accrued benefits shall be determined as of the
most recent Top Heavy Valuation Date that falls within
or ends with the twelve (12) month period ending on the
Determination Date, except as provided in Section 416 of
the Code and the regulations thereunder for the first
and second plan years of a qualified defined benefit
pension plan. The account balances and accrued benefits
of a Participant (i) who is a Non-Key Employee, but who
was a Key Employee in a prior year, or (ii) who has not
been credited with at least one (1) Hour of Service with
any Employer maintaining the relevant qualified plan at
any time during the five (5) year period ending on the
Determination Date shall be disregarded. The calculation
of the Top Heavy Ratio, and the extent to which
distributions, rollovers and transfers are taken into
account shall be made in accordance with Section 416 of
the Code and the regulations thereunder. Deductible
employee contributions shall not be taken into account
for purposes of computing the Top Heavy Ratio. When
aggregating plans, the value of account balances and
accrued benefits shall be calculated with reference to
the determination dates that fall within the same
calendar year.
The accrued benefit of a Participant other than a Key
Employee shall be determined under (i) the method, if
any, that uniformly applies for accrual purposes under
all defined benefit plans maintained by the Employer, or
(ii) if there is no such method, as if such benefit
accrued not more rapidly than the slowest accrual rate
permitted under the fractional rule of Section 411(b)(C)
of the Code.
(k) "Top Heavy Valuation Date" shall mean, with respect to any Plan
Year, for this Plan, the Determination Date, and shall mean with
respect to any Plan Year for a defined benefit pension plan
maintained by the Employer, the day within the twelve (12) month
period-ending on the determination date for such defined benefit
pension plan as of which the actuarial determination of the
minimum funding standard is calculated.
Section 13.03 Minimum Allocations in Single Plan. Notwithstanding the
provisions of Section 4.01 hereof, and before any contributions are allocated
thereunder, minimum Employer Contributions shall be made and allocated pursuant
to this section in a Plan Year in which the Plan is Top Heavy.
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(a) Profit Sharing Plans. If the Plan is a profit sharing plan, then
the Employer contributions (and Forfeitures, if Forfeitures are
to be allocated in the same manner as Employer contributions)
shall be allocated to the Employer Account of each Participant
as follows.
(1) Minimum Allocation. First, Employer contributions (and
Forfeitures, if to be allocated) shall be allocated to
each Participant in the proportion which his
Compensation bears to the total Compensation paid to all
Participants; provided, however, that no Employee shall
receive under this stage of the minimum top-heavy
allocation more than three percent (3%) of his
Compensation as an allocation. In any Plan Year in which
the Plan is a Paired Plan (or has elected to be treated
as a Paired Plan), the figure of three percent (3%)
shown in the immediately preceding sentence may be
modified pursuant to the provisions of Section 14.03 or
Section 14.04.
(2) Integrated Minimum Allocation. Second, if an integrated
allocation formula has been elected in Item 13(b) of the
Adoption Agreement, additional Employer contributions
(and Forfeitures, if to be allocated) shall be allocated
to each Participant who is eligible to share in the
allocation of Employer Contributions pursuant to Section
4.01, in the proportion which his Compensation in excess
of the integration level elected in Item 13(b)(1) of the
Adoption Agreement bears to the total such excess
Compensation paid to all such Participants; provided,
however, that no Employee shall receive under this stage
of the allocation a higher percentage of his
Compensation in excess of said integration level than
the lesser of (i) the percentage of his Compensation
allocated to him in the first stage of the minimum
top-heavy allocation described in (1) above, or (ii),
the percentage specified in Item 13(b)(2) of the
Adoption Agreement.
(3) Restricted Regular Allocation. Third, any Employer
contributions (and Forfeitures, if to be allocated)
remaining unallocated shall be allocated pursuant to the
provisions of Section 4.01 hereof; provided, however,
that all allocations under the Plan pursuant to Section
4.01 shall be determined with respect to Compensation as
that term is defined in Section 1.10 hereof, but subject
to the dollar limitation set forth in Section 13.02(a)
hereof. Further, if an integrated allocation formula has
been elected in Item 13(b) of the Adoption Agreement,
the percentage disparity selected in Item 13(b)(2) of
the Adoption Agreement shall be reduced, for purposes of
the allocation pursuant to Section 4.01, by the
percentage of the Participant's Compensation in excess
of the
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integration level which has been allocated to him
pursuant to the "Integrated Minimum Allocation"
described in (2) above.
(b) Money Purchase Pension Plans and Target Benefit Pension Plans.
If the Plan is either a money purchase pension plan or a target
benefit pension plan, then the Employer contributions allocated
to the Employer Account of each Participant shall be the greater
of the following.
(1) Minimum Allocation. A minimum allocation equal to the
lesser of (i) three percent (3%) of such Participant's
Compensation or (ii) an amount equal to such
Participant's Compensation multiplied by the largest
percentage of Employer contributions which would have
been allocated on behalf of any Key Employee for that
Plan Year with respect to such Key Employee's
Compensation under Session 4.01 hereof; or
(2) Restricted Regular Allocation. The regular allocation
equal to an amount determined pursuant to Section 4.01
hereof; provided, however, that the allocation pursuant
to Section 4.01 hereof shall be determined with respect
to Compensation as that term is defined in Section 1.10
hereof, but subject to the dollar limitation set forth
in Section 13.02(a) hereof.
If the allocation performed according to this Section 13.03(b)
results in the allocation of Employer contributions in excess of
the amount of such contributions which would have been allocated
if the Plan had not been Top Heavy, then the Employer shall
contribute an amount equal to the amount of such excess, in
addition to the contribution required under Section 3.01(c) for
the Plan Year.
(c) Minimum Allocation Requirements. The minimum allocation provided
for in subsections (a)(1) and (b)(l) hereof shall be made even
though, under other Plan provisions, the Participant would not
otherwise be entitled to receive an allocation, or would have
received a lesser allocation, for the Plan Year because of the
following:
(1) the Participant's failure to complete one thousand
(1,000) Hours of Service.
(2) the Participant's failure to make mandatory Employee
contributions, if any, required for participation in the
Plan; or
(3) the Participant's Compensation was less than any stated
required amount.
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This subsection shall not apply, however, to any
Participant who was not employed by the Employer on the
last day of the Plan Year.
In determining Employer contributions under this
section, Elective Deferral Contributions, Matching
Contributions or benefits under Chapter 2 of the Code
(relating to taxes on self-employed income), Chapter 21
of the Code (relating to the Federal Insurance
Contribution Act) or any other Federal or State laws
(including Title II of the Social Security Act) shall
not be taken into account.
The minimum allocations required hereunder (to the
extent required to be nonforfeitable under Section
416(b) of the Code) shall not be forfeitable under
subsections 411(a)(3)(B) (regarding the suspension of
benefits upon reemployment of a retiree) or 411(a)(3)(D)
(regarding withdrawal of mandatory contributions) of the
Code.
Section 13.04 Minimum Vesting Schedules. For any Plan Year in which this
Plan is a Top Heavy Plan, the minimum vesting schedule as elected by the
Employer in Item 14(b) of a nonstandardized Adoption Agreement, or Item 16 of a
standardized Adoption Agreement, shall automatically apply to the Plan;
provided, however, that if the Plan is a non-standardized plan and if the
Employer has selected a regular vesting schedule in Item 16 of the Adoption
Agreement under which the vested percentage for that Plan Year is greater than
that provided in Item 20(b) of the Adoption Agreement, then the greater vested
percentage under Item 16 shall apply. This vesting provision applies to all
benefits within the meaning of Section 411(a)(7) of the Code (except those which
are otherwise immediately nonforfeitable when contributed to the Plan, if any),
including benefits accrued before the effective date of Section 416 of the Code
and benefits accrued before the Plan became a Top Heavy Plan. Further, no
decrease in a Participant's nonforfeitable percentage may occur in the event the
Plan's status as a Top Heavy Plan changes for any Plan Year. However, this
section does not apply to the account balances of any Employee who does not have
an Hour of Service after the Plan has initially become a Top Heavy Plan, and
such Employee's vested interest in his Employer Account and Matching Account
shall be determined without regard to this section.
In the absence of an alternative affirmative election by the Employer,
the vesting schedule stated at option (ii) of Item 20(b) of a non-standardized
Adoption Agreement, or option (b) of Item 16 of a standardized Adoption
Agreement, shall apply hereunder.
Section 13.05 Special Limitations on Top Heavy Allocations in Multiple
Plans: "Code Section 415(e) Buy-Back". If for any Plan Year the Plan is a Top
Heavy Plan, and the Employer maintains or has ever maintained a qualified
defined benefit pension plan, then in applying the limitations of Section 4.07
of the Plan the words "one hundred percent (100%)" shall be substituted for the
words "one hundred and twenty-five percent (125%)" in both the Defined Benefit
Fraction and the Defined Contribution Fraction, as such terms are defined in
Section 4.07 of the Plan, unless the Employer elects to "buy-back" the use of
the "one hundred
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twenty-five percent (125%)" limit with respect to any Plan Year in which the
Plan is not Super Top Heavy by providing minimum benefits in excess of those
otherwise required pursuant to the provisions of Section 13.03. An Employer
accomplishes this "Code Section 415(e) Buy-Back" by electing to retain the use
of the "one hundred twenty-five percent (125%)" limit in Item 20(c)(1)(i) of a
non-standardized Adoption Agreement or Item 20(b)(1)(i) of a standardized
Adoption Agreement and by agreeing in such Item either (1) to provide the
required increased minimum benefits under the defined benefit plan or (2) to
provide the required increased minimum benefits in this Plan according to one
(1) of the following methods.
(a) If the PLan is a Paired Plan, then the minimum accrual
provisions of Sections 14.03 shall apply automatically.
(b) If the Plan is not a Paired Plan, the Employer may nevertheless
elect to provide the minimum accruals set out in Section 14.03
by electing (in Item 20(c)(1)(ii) of a non-standardized Adoption
Agreement or Item 20(b)(1)(ii) of a standardized Adoption
Agreement) to be subject to the Paired Plan provisions of
Article 14.
(c) If the Plan is not a Paired Plan, the Employer may elect (by
setting out overriding provisions in Item 20(c)(1)(ii) of a
non-standardized Adoption Agreement or Item 20(b)(1)(ii) of a
standardized Adoption Agreement) to provide the minimum accruals
required by Code Section 416(h)(2) by some method other than
that set out in Section 14.03.
If the Plan is one (1) of multiple qualified plans maintained by the
Employer and is not a Paired Plan, nor is to be considered to be a Paired Plan,
and the Employer has not elected to utilize the Code Section 415(e) Buy-Back
provisions, then the Employer shall provide (by setting out overriding
provisions in Item 20(c)(1)(ii) of a non-standardized Adoption Agreement or Item
20(b)(1)(ii) of a standardized Adoption Agreement) minimum benefit accruals
pursuant to Section 416(f) of the Code.
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ARTICLE 14
PAIRED PLANS
Section 14.01 Paired Plans. The provisions of this article shall apply
if either:
(a) this Plan is a Paired Plan or,
(b) this Plan is not a Paired Plan, but is to be considered to be
subject to the Paired Plan provisions of this article under Item
20(c)(1)(ii) of a non-standardized Adoption Agreement or Item
20(b)(1)(ii) of a standardized Adoption Agreement.
Under this article, Sections 14.03 and 14.04 shall apply with respect to Plan
Years in which the Plan is paired, or considered as paired, hereunder with a
defined benefit pension plan maintained by the Employer, while Sections 14.05
and 14.06 shall apply with respect to Plan Years in which the Plan is paired, or
considered as paired, hereunder with another defined contribution plan
maintained by the Employer, whether or not the Plan is also paired, or
considered as paired, hereunder with a defined benefit pension plan.
With respect to such Paired Plans, the term "Compensation" shall have
the meaning set forth in Section 13.02(a) hereof.
Section 14.02 Multiple Benefits From Super Top Heavy Paired Plans. In
any Plan Year in which the Plan is a Paired Plan with a defined benefit pension
plan, and the Plan is or becomes a Super Top Heavy Plan, as defined in Section
13.02(h), then the "Code Section 415(e) Buy-Back", as that term is defined in
Section 13.05 hereof, shall not be available.
Section 14.03 Minimum Defined Contribution Plan Allocations Under Top
Heavy Paired Plans With Code Section 415(e) Buy-Back. In any Plan Year in which
the Plan is a Paired Plan (or has elected to be treated as a Paired Plan) with a
qualified defined benefit pension plan, when the Plans are considered Top Heavy
Plans, but are not Super Top Heavy Plans, and the Employer has elected to
utilize the Code Section 415(e) Buy-Back, minimum nonintegrated allocations
shall be made under this section.
(a) Any Employee who is a Participant otherwise entitled to receive
top heavy allocations from this Paired Plan, but who is not
entitled to receive a minimum benefit from the defined benefit
pension Paired Plan, shall receive a minimum nonintegrated
allocation of four percent (4%) of Compensation under
subsections 13.03(a)(1) or 13.03(b)(1) of this Paired Plan
instead of three percent (3%) of Compensation.
(b) If the Employer has elected to provide the required increased
minimum benefits in this Plan, then each Employee
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who participates in this Paired Plan and who also participates
in the defined benefit pension Paired Plan shall receive a
minimum nonintegrated allocation of seven and one-half percent
(7-1/2%) of Compensation under subsections 13.03(a)(1) or
13.03(b)(1) of this Paired Plan instead of three percent (3%) of
Compensation.
(c) If the Employer has elected to provide the required increased
minimum benefits in the defined benefit pension Paired Plan,
then each Employee who participates in this Paired Plan and who
also participates in the defined benefit pension Paired Plan
shall not be entitled to receive a minimum allocation under this
Plan.
Section 14.04 Minimum Defined Contribution Plan Allocations Under Super
Top Heavy Paired Plans or Without Code Section 415(e) BuyBack. In any Plan Year
in which the Plan is a Paired Plan (or has elected to be treated as a Paired
Plan) with a qualified defined benefit pension plan, if the Paired Plans are
considered Super Top Heavy or if the Employer has elected not to utilize the
Code Section 415(e) Buy-Back, then minimum nonintegrated allocations shall be
made under this section.
(a) Any Employee who is a Participant otherwise entitled to receive
top heavy allocations from this Paired Plan, but who does not
participate in the defined benefit pension Paired Plan, shall
receive a minimum nonintegrated allocation of three percent (3%)
of Compensation under 13.03(a)(1) of this Paired Plan.
(b) If the Employer has elected to provide the required increased
benefits in this Plan, then each Employee who is a Participant
in this Paired Plan and who also participates in the defined
benefit pension Paired Plan shall receive a minimum
nonintegrated allocation of five percent (5%) of such
Participant's Compensation under subsections 13.03(a)(1) or
13.03(b)(1) this Paired Plan instead of three percent (3%) of
Compensation.
(c) If the Employer has elected to provide the required increased
minimum benefits in the defined benefit pension Paired Plan,
then each Employee who participates in this Paired Plan and who
also participates in the defined benefit pension Paired Plan
shall not be entitled to receive a minimum allocation under this
Plan.
Section 14.05 Defined Contribution Paired Plans Prevention of
Duplication of Allocations. In any Plan Year in which the Plan is a Paired Plan
with a defined contribution plan, the Employer shall provide each Employee who
is a Participant in this Paired Plan and who participates in the other defined
contribution Paired Plan the minimum nonintegrated allocation specified under
this article only in that Paired Plan indicated in Item 20(c)(1)(iii) of a
non-standardized Adoption Agreement or Item 20(b)(1)(iii) of a standardized
Adoption Agreement.
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Section 14.06 Forfeitures in Paired Plans. If this Plan is a Paired
Plan, then the minimum nonintegrated allocations provided by this Plan under
this article shall include in their computation Forfeitures, if Forfeitures are
to be allocated in the same manner as Employer contributions pursuant to Item 8
of the Adoption Agreement.
Section 14.07 Integrated Paired Plans. If the Paired Plans involve
integration with Social Security, then only one (1) Paired Plan shall be
integrated.
Section 14.08 Limitation of Excess Benefits in Paired Defined
Contribution and Defined Benefit Plans. In any Limitation Year in which this
Plan is a Paired Plan with a defined benefit plan maintained by the Employer,
then either the Annual Addition credited under this Plan or the additional
annual benefit accrued under the paired defined benefit plan, as elected in Item
21(b) of the Adoption Agreement, shall not cause the sum of the Defined Benefit
Fraction and the Defined Contribution Fraction to exceed one (1.0).
Notwithstanding any other provision of the affected plan or its Adoption
Agreement to the contrary, if the Annual Addition or benefit that would
otherwise be accrued on the Participant's behalf during the Limitation Year
under the affected plan would cause this limitation to be exceeded, then the
accruals under the affected plan shall be reduced so that the sum of the
fractions equals one (1.0).
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ARTICLE 15
MISCELLANEOUS PROVISIONS
Section 15.01 Allocation of Responsibility Among Fiduciaries for Plan
and Trust Administration. The Employer, the Plan Administrator (and the
Committee, if appointed pursuant to Section 9.01 hereof), the Investment
Manager, if any, and the Trustee shall be named Fiduciaries under the Plan, but
only with respect to their respective specific responsibilities under the Plan.
Each Fiduciary shall have only those specific powers, duties,
responsibilities and obligations as are specifically given it under the Plan.
Each Fiduciary warrants that any directions given, information furnished, or
action taken by it shall be in accordance with the provisions of the Plan
authorizing or providing for such direction, information or action. Furthermore,
each Fiduciary may rely upon any such direction, information or action of any
other Fiduciary as being proper under the Plan and is not required under the
Plan to inquire into the propriety of any such direction, information or action.
It is intended under the Plan that each Fiduciary shall be responsible for the
proper exercise of its own powers, duties, responsibilities and obligations
under the Plan and shall not be responsible for any act or failure to act of
another Fiduciary. No Fiduciary guarantees the Trust Fund in any manner against
investment loss or depreciation in asset value.
Each Fiduciary shall discharge its duties set forth in the Plan solely
in the interests of the Participants, Retired or Separated Participants and
their Beneficiaries and:
(a) for the exclusive purpose of:
(1) providing benefits to such persons; and
(2) defraying reasonable expenses of administering the Plan;
(b) with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a
like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims.
Section 15.02 Alienation or Assignment of Benefits. The right of any
Participant, Separated or Retired Participant, or Beneficiary in any benefit or
to any payment hereunder or to any segregated account shall not be anticipated,
conveyed, assigned, mortgaged or encumbered either by voluntary or involuntary
action or by operation of law, except as permitted herein; nor shall any such
right or interest be in any manner subject to levy, attachment, execution,
garnishment or any other seizure under legal, equitable or other process, except
pursuant to a qualified domestic relations order, as defined in Section 414(p)
of the Code, or pursuant to a domestic relations order entered before January 1,
1985, under which payment of benefits under that order has commenced as of such
date. Otherwise, such interest in this Plan shall be payable only in accordance
with the provisions hereof; provided, however, that
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distributions pursuant to a qualified domestic relations order may be made
without regard to the age or employment status of the Participant.
Section 15.03 Headings. The headings and sub-headings of Articles and
Sections are included solely for convenience of reference, and if there be any
conflict between such headings and the text of the Plan, the text shall control.
Section 15.04 Construction of the Plan. All legal questions pertaining
to the Plan shall be determined in accordance with the laws of the state in
which the Employer principally does business, except insofar as they have been
superseded by the provisions of ERISA, and all contributions hereunder shall be
deemed to have been made in that state. For purposes hereof, the Employer shall
mean only the entity executing the Adoption Agreement as "Employer", but shall
not mean any organization executing the Plan as an "Adopting Employer.
In the construction of the Plan, the masculine gender shall include the
feminine, and the singular shall include the plural, unless the context clearly
indicates otherwise.
Section 15.05 Claims to Plan Benefits. Each Participant, Retired or
Separated Participant, Beneficiary or any other person who shall claim the right
to any payment or benefit under the Plan, shall look only to the Trust Fund for
such payment or benefit and shall not have any right, claim or demand therefor
against the Employer.
Section 15.06 Legally Incompetent. If any Participant, Retired or
Separated Participant, or Beneficiary is a minor, or is in the judgment of the
Plan Administrator otherwise legally incapable of personally receiving and
giving a valid receipt for any payment due him hereunder, the Plan Administrator
may, unless and until claim shall have been made by a guardian or conservator of
such person duly appointed by a court of competent jurisdiction, direct that
such payment, or any part thereof, be made to such person or to such person's
spouse, child, parent, brother or sister, or other person deemed by the Plan
Administrator to be a proper person to receive such payment. Any payment so made
shall be, to the extent of the payment, a complete discharge to the Employer,
the Plan Administrator (and the Committee, if appointed pursuant to Section 9.01
hereof) and the Trustee of any liability under the Plan.
Section 15.07 Non-Qualification Exclusion. The Employer which is the
entity executing the Adoption Agreement as the "Employer" (but not any
organization executing the Plan as an "Adopting Employer"), if required for
evidence of qualification under Revenue Procedure 89-9, shall apply to the
Internal Revenue Service for a determination of the qualification of its Plan
and Trust under the provisions of Sections 401(a) and 501(a), respectively, of
the Code within ninety (90) days after the date of adoption of the Plan by the
Employer, or within ninety (90) days after the date of any amendment to the
Plan, unless an extension of time for such filing is approved by the Trustee.
Such application for a determination shall be made with due regard for the
requirement that notice of such application be given to each person who
qualifies as an interested party.
If an Employer's Plan fails to meet the requirements for qualification,
the Employer shall be precluded from including this prototype plan document as
part of its Plan until such time as all requirements are
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met. If the Plan established by an Adopting Employer at any time fails to
retain qualification, such Plan shall cease to participate as a prototype plan
under Revenue Procedure 89-9. If the Employer's Plan fails to attain or retain
qualification, such Plan shall be considered an individually designed plan.
Funds held in Trust on behalf of the Employer shall be segregated, or otherwise
disposed of, for the exclusive benefit of the Employer's Employees within sixty
(60) days after the date of determination of disqualification. Provided,
however, that if the Employer which is the entity executing the Adoption
Agreement as the "Employer" shall fail to receive an initial letter of
qualification from the Internal Revenue Service, all contributions to the Plan
by the Employer or any Adopting Employer shall be returned to such Employer
pursuant to Section 12.05 hereof and the Trustee shall be discharged from all
obligation thereunder.
Section 15.08 Control of Trades or Businesses by Owner Employee. If this
Plan provides contributions or benefits for one (1) or more Owner-Employees who
control both the business for which this Plan is established and one (1) or more
other trades or businesses, then this Plan and the plan established for other
trades or businesses shall, when considered as a single plan, satisfy Code
Sections 401(a) and (d) for the employees of this and all other trades or
businesses.
If the Plan provides contributions or benefits for one (1) or more
Owner-Employees who control one (1) or more other trades or businesses, then the
employees of the other trades or businesses shall be included in a plan which
satisfies Code Sections 401(a) and (d) and which provides contributions and
benefits not less favorable than provided for Owner-Employees under this Plan.
If an individual is covered as an Owner-Employee under the plans of two
(2) or more trades or businesses which are not controlled, and the individual
controls a trade or business, then the contributions and benefits of the
employees under the plan of the trades or businesses which are controlled shall
be as favorable as those provided for the Owner-Employee under the most
favorable plan of the trade or business which is not controlled.
For purposes of the preceding paragraphs, an Owner-Employee, or two (2)
or more Owner-Employees, shall be considered to control a trade or business if
the Owner-Employee, or two (2) or more Owner-Employees together:
(1) own the entire interest in an unincorporated trade or business,
or
(2) in the case of a partnership, own more than fifty percent (50%)
of either the capital interest or the profits interest in the
partnership.
For purposes of the preceding sentence, an Owner-Employee, or two (2) or
more Owner-Employees shall be treated as owning any interest in a partnership
which is owned, directly or indirectly, by a partnership which such
Owner-Employee, or such two (2) or more Owner-Employees, are considered to
control within the meaning of the preceding sentence.
15-3
<PAGE>
IN WITNESS WHEREOF, Equitable Securities Corporation has caused this
Prototype Defined Contribution Plan and Trust to be executed by its duly
authorized representative on this 15th day of March, 1990.
EQUITABLE SECURITIES CORPORATION
By: /s/ H. Larimore Smith
---------------------------
Title: Chief Financial Officer
-------------------------
<PAGE>
FIRST AMENDMENT
TO THE
EQUITABLE SECURITIES CORPORATION PROTOTYPE
DEFINED CONTRIBUTION PLAN AND TRUST
BASIC PLAN DOCUMENT #01
WHEREAS, Equitable Securities Corporation sponsors the Equitable
Securities Corporation Prototype Defined Contribution Plan and Trust in order to
assist Employers in adopting a defined contribution plan and trust which is
qualified under Section 401(a) and Section 501(a) of the Code, respectively; and
WHEREAS, Equitable Securities Corporation desires to conform the Plan
and Trust to the final regulations issued under the Tax Reform Act of 1986, and
to make those amendments permitted by Revenue Procedure 92-41;
NOW THEREFORE, effective on the dates described below, the plan is
hereby amended as shown below. Except where indicated otherwise, the amendments
below shall be effective on the first day of the Plan Year commencing in 1992.
Section l.ll(a) is amended by deleting from the last sentence thereof
the phrase, "other than determining the Average Deferral Percentage of Section
3.05 and the Average Contribution Percentage of Section 3.06,".
Section l.ll(b) is amended by deleting from the first sentence of the
second paragraph thereof the phrase, "other than determining the Average
Deferral Percentage of Section 3.05 and the Average Contribution Percentage of
Section 3.06,".
1
<PAGE>
Effective on the first day of the Plan Year commencing in 1993, Section
1.11 is amended by adding to the end thereof the following subsection (d):
"(d) 'W-2 Earnings' shall mean wages within the meaning of Section
3401(a) of the Code and all other payments of compensation to the
Employee by the Employer (in the course of the Employer's trade or
business) for which the Employer is required to furnish the Employee a
written statement under Sections 6041(d), 6051(a)(3) and 6052 of the
Code, determined without regard to any rules under Section 3401(a) of
the Code that limit the remuneration included in wages based on the
nature or location of the employment or the services performed."
Section 1.30(a) is amended by adding to the end thereof the following:
"Notwithstanding the above, (and notwithstanding anything to the
contrary in the Adoption Agreement) at the election of the Plan
Administrator, the election to make the calendar year calculation, as
provided in Section 1.414(g)-lT, Q&A 14(b), of the Treasury
Regulations, shall be made and shall apply for a Plan Year. In this
case, the look-back year for the Plan Year shall be the calendar year
ending with or within the applicable Plan Year, and the determination
year shall be the period of time, if any, which extends beyond the
look-back year and ends on the last day of the Plan Year for which
testing is being performed (the "lag period"). If the lag period is
less than twelve (12) months long, then the dollar amounts applicable
under (a)(l), (a)(2), and (a)(3) above shall be prorated based upon the
number of months in the lag period."
Section 1.73(a) is amended by deleting the words "Item 11" from the
second paragraph and replacing them with the words "Item 17."
Section 2.03 shall be amended by adding to the end thereof the following
paragraph:
"If the Plan uses Adoption Agreement #002 or #006 (savings plan), the
participation of an Employee shall be subject to the requirement that
the Employee make Employee Contributions if such requirement is elected
in Item 9(a)(1) of the Adoption Agreement. If a Participant ceases to
make required Employee Contributions, he shall be treated in the same
manner as a Participant who has changed his classification of employment
to an excluded classification as described in the preceding paragraph."
2
<PAGE>
Section 3.01(c)(2) is amended by adding to the end thereof the following
paragraph (iii)
"(iii) Waiver of Service Requirement. The Plan Administrator may elect
to waive the requirement in this Section 3.01(c)(2) of a
specified number of Hours of Service, or the requirement that a
Participant be in Service on the Valuation Date, or both
requirements, with respect to a group of Participants or
Separated Participants for a Plan Year, if such waiver is
necessary in order to satisfy the requirements of Section 410(b)
of the Code for such Plan Year.
The last paragraph of Section 3.01 is amended by deleting the phrase,
"if only partners participate, shall be allowed if such election" and replacing
it with the phrase, "if partners may participate, shall be allowed only if such
election".
Section 3.03(c) is amended, effective January 1, 1993, by adding the
following paragraph immediately after the first paragraph:
"If Rollover Contributions are permitted by Item 9 of the Adoption
Agreement, the Plan shall permit a Participant to make a Rollover
Contribution in the form of a direct trustee to trustee transfer,
provided that: (1) the transferor plan is described in the preceding
paragraph as a plan from which Rollover Contributions are accepted; (2)
the direct transfer is made pursuant to the Participant's election; (3)
the amount transferred is no greater than the amount that would be
accepted as a Rollover Contribution in accordance with the preceding
paragraph; and (4) the transferor plan is required by section
401(a)(31) of the Internal Revenue Code to permit the transfer. The
amount contributed in accordance with this paragraph shall be allocated
to the Participant's Rollover Account."
The second paragraph of Section 3.04 is amended by adding to the end
thereof the following:
"In the event that the Participant's elective deferrals (within the
meaning of Section 402(g)(3) of the Code) made under this Plan and all
other plans maintained by the Employer (without taking into account any
plan not maintained by the Employer) during any calendar year exceed
the limitation contained in Section 402(g) of the Code in effect at the
beginning of such calendar year, the Participant shall be deemed to
have made the notification referred to in the preceding sentence with
respect to such Excess Elective Deferrals
3
<PAGE>
(calculated without regard to any plan not maintained by the Employer).
If the Participant has not actually made such notification, and if the
Participant has made Elective Deferrals to more than one plan
maintained by the Employer, the Employer shall select the plan to which
the Excess Elective Deferrals shall be assigned."
Section 3.04 is amended by adding to the end thereof the following
paragraph:
"Effective with the first Plan Year commencing in 1992, the amount
in (ii) in the preceding paragraph shall be replaced with zero
($0) unless Item 8(j)(2) of the Adoption Agreement (as modified by the
Supplemental Adoption Agreement, if any) is elected. The Plan
Administrator may elect, for any Plan Year, to replace the amount in
(i) in the preceding paragraph, with an amount computed using the
method that is used by the Plan to allocate Income to Participants'
Accounts, provided such method is reasonable, nondiscriminatory (within
the meaning of Section 401(a)(4) of the Code) and is used consistently
for all Participants and for all corrective distributions under the
Plan for the Plan Year."
Section 3.05(a) is amended by adding to the end thereof the
following:
"For Plan Years commencing in 1992 and later, the Compensation used in
determining the Average Deferral Percentage shall be limited to
Compensation received by the Employee for the period in which he is a
Participant, if this is the method elected in Item 7 of the Adoption
Agreement (as modified by the Supplemental Adoption Agreement, if any).
If this method has been elected with respect to Plan Years commencing
before 1992, then this method shall automatically be elected for Plan
Years commencing in 1992 and later, unless a contrary election is
made."
Section 3.05(c) is amended by deleting the last six words of the first
paragraph ("the manner prescribed by the regulations") and replacing them with
the following:
"proportion to the contributions with respect to each family member
that are included in the numerator of the ratio described in Section
3.05(a) in the definition of "Average Deferral Percentage."
4
<PAGE>
Section 3.05(d) is amended by adding to the end thereof the following
paragraph:
"Effective with the first Plan Year commencing in 1992, the amount
in (2) above shall be replaced with zero ($0) unless Item 8(j)(2) of
the Adoption Agreement (as modified by the Supplemental Adoption
Agreement, if any) is elected. The Plan Administrator may elect, for
any Plan Year, to replace the amount in (1) above with an amount
computed using the method that is used by the Plan to allocate Income
to Participants' Accounts, provided such method is reasonable,
non-discriminatory (within the meaning of Section 401(a)(4) of the
Code) and is used consistently for all Participants and for all
corrective distributions under the Plan for the Plan Year."
Section 3.06(c)(3) is amended by adding to the end thereof the
following:
"For Plan Years commencing in 1992 and later, the Compensation used in
determining the Average Contribution Percentage shall be limited to
Compensation received by the Employee for the period in which he is a
Participant, if this is the method elected in Item 7 of the Adoption
Agreement (as modified by the Supplemental Adoption Agreement, if any).
If this method has been elected with respect to Plan Years commencing
before 1992, then this method shall automatically be elected for Plan
Years commencing in 1992 and later, unless a contrary election is
made."
Section 3.06(d) is amended by deleting from the second sentence the
phrase ("the manner prescribed by regulations") and replacing it with the
following:
"proportion to the Contribution Percentage Amount of each family
member."
Section 3.06(e) is amended by adding to the end thereof the following
paragraph:
"Effective with the first Plan Year commencing in 1992, the amount
in (ii) in the preceding paragraph shall be replaced with zero ($0)
unless Item 8(j)(2) of the Adoption Agreement (as modified by the
Supplemental Adoption Agreement, if any) is elected. The Plan
Administrator may elect, for any Plan Year, to replace the amount in
(i) in the preceding paragraph, with an amount computed using the
method that is used by the Plan to allocate Income to
5
<PAGE>
Participants' Accounts, provided such method is reasonable,
non-discriminatory (within the meaning of Section 401(a)(4) of the
Code) and is used consistently for all Participants and for all
corrective distributions under the Plan for the Plan Year."
Section 4.01(b) is amended by adding to the end thereof the
following:
"No Matching Contribution shall be allocated with respect to any
Employee Contribution or Elective Deferral Contribution that is
returned or distributed to the Participant in accordance with Section
3.04 (Limit on Elective Deferrals), Section 3.05 (ADP test), Section
3.06 (ACP test) or Section 4.07 (Maximum Annual Additions). In the
event that such a Matching Contribution is allocated to the Matching
Account of a Participant, such Matching Contribution shall be forfeited
as of the last day of the Plan Year in which it was allocated. Any
Matching Contributions forfeited in accordance with the preceding
sentence shall not be included in the ACP test in Section 3.06."
Section 4.01(c)(1) is amended by adding to the end thereof the
following paragraph (iii)
"(iii) Waiver of Service Requirement. The Plan Administrator may
elect to waive the requirement in this Section 4.01(c)(1) of a
specified number of Hours of Service, or the requirement that
a Participant be in Service on the Valuation Date, or both
requirements, with respect to a group of Participants or
Separated Participants for a Plan Year, if such waiver is
necessary in order to satisfy the requirements of Section
410(b) of the Code for such Plan Year.
Effective on the first day of the Plan Year commencing in 1991, Section
4.07(a)(4) is deleted and replaced with the following provision:
"(4) If, as a result of the allocation of forfeitures, a reasonable
error in estimating a Participant's annual Compensation, a
reasonable error in determining the amount of elective
deferrals (within the meaning of Section 402(g)(3) of the
Code) that may be made with respect to any individual under
the limits of this Section 4.07, or other facts and
circumstances that justify the availability of the rules set
forth below, there is an Excess Amount, then such excess shall
be disposed of as follows:
(i) Any Employee Contributions (whether voluntary or
mandatory) shall be returned to the Participant, and
any Elective Deferral Contributions shall be
6
<PAGE>
distributed to the Participant, to the extent such return or
distribution would reduce the Excess Amount. The amounts
returned or distributed shall include Income on such amounts
determined in the same manner as Income is determined in
Section 3.04 (however, if such method of determining Income is
not permitted by regulations, then Income shall be determined
in a manner consistent with any applicable regulations). Any
amount distributed or returned in accordance with this
paragraph (i) shall not be included as an Elective Deferral
Contribution or Employee Contribution for purposes of the ADP
test in Section 3.05, the ACP test in Section 3.06, or the
limit on Elective Deferrals in Section 3.04. The consent of
the Participant or the Participant's Spouse shall not be
required to make any return or distribution in accordance with
this paragraph (i).
(ii) If after the application of paragraph (i) an Excess Amount
still exists, and the Participant is covered by the Plan at
the end of the Limitation Year, then any remaining Excess
Amount in the Participant's Accounts shall be used to reduce
Employer contributions (including any allocation of
Forfeitures) for such Participant in the next Limitation Year,
and each succeeding Limitation Year if necessary.
(iii) If after the application of paragraph (i) an Excess Amount
still exists, and the Participant is not covered by the Plan
at the end of a Limitation Year, then the Excess Amount shall
be held unallocated in a suspense account which shall be
applied to reduce future Employer contributions (including any
allocation of Forfeitures) for all remaining Participants in
the next Limitation Year, and each succeeding Limitation Year
if necessary.
(iv) If a suspense account is in existence at any time during a
Limitation Year pursuant to this section, then it shall not
participate in the allocation of the Trust's investment gains
and losses. If a suspense account is in existence at any time
during a particular Limitation Year, all amounts in the
suspense account must be allocated and reallocated to
Participants' accounts before any employer contributions or
any employee contributions may be made to the plan for that
Limitation Year. For purposes of this paragraph (iv) Excess
Amounts may not be distributed to Participants or former
Participants."
The second paragraph of Section 5.01(a)(2) is amended by adding to
the end thereof the following:
"The amount computed under clause (ii) above may, in the discretion
of the Plan Administrator (applied in a uniform and
non-discriminatory basis), include any amounts necessary to pay
any federal, state or local income taxes or penalties
reasonably anticipated to result from the distribution."
7
<PAGE>
Section 5.01(a)(2) is amended by replacing the first paragraph
designated (i) (regarding medical expenses as an immediate and heavy financial
need) with the following:
"(i) Expenses incurred or necessary for medical care, described in
Section 213(d) of the Code, of the Participant or former
Participant, his spouse, or his dependents (as defined in
Section 152 of the Code);"
Section 5.01(a)(2) is amended by replacing the first paragraph
designated (iii) (regarding tuition as an immediate and heavy financial need)
with the following:
"(iii) Payment of tuition and related educational fees for the next
twelve (12) months of post secondary education for the
Participant or former Participant, his spouse, children or
dependents;"
Section 5.01(b) is amended by adding the following sentence after the
first sentence of the last paragraph:
"The Participant may withdraw any part of his Account attributable
to direct transfers made to the Plan pursuant to Section 10.15
(Trustee to Trustee Transfers) by making a written application
to the Plan Administrator at any time, subject to any
restrictions on such withdrawals that are required to be
carried over from the transferor plan."
Effective January 1, 1993, Section 6.03 shall be amended by adding to
the end thereof the following subsection (f):
"(f) Direct Rollover. This subsection (f) applies to distributions
made on or after January 1, 1993. Notwithstanding any
provision of the plan to the contrary that would otherwise
limit a distributee's election under this subsection (f), a
distributee may elect, at the time and in the manner
prescribed by the plan administrator, to have any portion of
an eligible rollover distribution paid directly to an eligible
retirement plan specified by the distributee in a direct
rollover.
Definitions applicable to this subsection (f):
(1) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of
8
<PAGE>
the balance to the credit of the distributee, except that an
eligible rollover distribution does not include any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies of the distributee and the
distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the extent
such distribution is required under section 401(a)(9) of the
Internal Revenue Code; and the portion of any distribution
that is not includible in gross income (determined without
regard to the exclusion for net unrealized appreciation with
respect to employer securities).
(2) Eligible retirement plan: An eligible retirement plan is an
individual retirement account described in section 408(a) of
the Code, an individual retirement annuity described in
section 408(b) of the Code, an annuity plan described in
section 403(a) of the Code, or a qualified trust described in
section 401(a) of the Code, that accepts the distributee's
eligible rollover distribution. However, in the case of an
eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account
or individual retirement annuity.
(3) Distributee: A distributee includes an employee or former
employee. In addition, the employee's or former employee's
surviving spouse and the employee's or former employee's
spouse or former spouse who is the alternate payee under a
qualified domestic relations order, as defined in section
414(p) of the Code, are distributees with regard to the
interest of the spouse or former spouse.
(4) Direct rollover: A direct rollover is a payment by the Plan to
the eligible retirement plan specified by the distributee."
Section 9.05 is amended by deleting the words "Item 18" in the first
sentence and replacing them with the words "Item 15."
Section 10.02(1) is amended by adding to the end thereof the
following:
"Expenses that are paid by the Plan may be allocated to the
accounts of the Participants and Separated Participants in a
manner determined by the Plan Administrator that is equitable,
uniform and non-discriminatory. If appropriate, such expenses
shall reduce the amount of Income allocated on the next
Valuation Date. Expenses
9
<PAGE>
that relate solely to the account of one Participant or Separated
Participant may be allocated to that person's account."
Section 10.12 is amended by adding to the end thereof the following
paragraph:
"The Plan Administrator may designate the Plan to be an "ERISA
Section 404(c) Plan. This designation shall be made by informing
the Trustee that the Plan shall be an ERISA Section 404(c) Plan,
and by complying in operation with Department of Labor Regulations
Section 2550.404c-1. If the Plan Administrator makes this
designation, then the Plan Fiduciaries shall have the protections
provided by Section 404(c) of the ERISA, specifically that: (a) a
Participant exercising control over the assets in his account shall
not be deemed a fiduciary by reason of his exercise of such
control; and (b) no person who is otherwise a fiduciary shall be
liable for any loss, or by reason of any breach, which results from
such exercise of control."
Section 11.07 is amended by deleting the word "Participants" from the
last paragraph and replacing it with the phrase "Participants and Separated
Participants".
Article 14 is amended by adding to the end thereof the following Section
14.09:
"Section 14.09 Paired Plans if Coverage and Eligibility
Provisions are Not Identical. Notwithstanding any other provision
of this Article 14, in any Plan Year (a) in which this Plan is a
Paired Plan, (b) in which the this Plan and the other Paired Plan
are Top Heavy Plans, and (c) in which the coverage and eligibility
provisions of this Plan and the other Paired Plan are not
identical, each Employee who is a Participant only in this Plan
shall receive the applicable minimum nonintegrated allocation in
this plan, and each Employee who participates only in the other
Paired Plan shall receive the applicable minimum nonintegrated
allocation or benefit in the other Paired Plan, and each Employee
who is a Participant both in this Plan and in the other Paired Plan
shall receive the applicable minimum nonintegrated allocation or
benefit both in this Plan and in the other Paired Plan."
10
<PAGE>
IN WITNESS WHEREOF, Equitable Securities Corporation has caused this
First Amendment to the Equitable Securities Corporation Prototype Defined
Contribution Plan and Trust to be executed by its duly authorized representative
on this 21st day of September, 1993.
EQUITABLE SECURITIES CORPORATION
By: /s/ H. Larimore Smith
----------------------------
Title: Chief Financial Officer
----------------------------
11
<PAGE>
SECOND AMENDMENT
TO THE
EQUITABLE SECURITIES CORPORATION
DEFINED CONTRIBUTION PLAN AND TRUST
BASIC PLAN DOCUMENT #01
WHEREAS, Equitable Securities Corporation sponsors the Equitable
Securities Corporation Prototype Defined Contribution Plan and Trust (the
"Plan") in order to assist Employers in adopting a defined contribution plan and
trust which is qualified under Section 401(a) and Section 501(a) of the Code,
respectively; and
WHEREAS, Equitable Securities Corporation desires to conform the Plan to
the requirements of the Unemployment Compensation Amendments of 1992 and the
Omnibus Budget Reconciliation Act of 1993, and to make those amendments
permitted by Revenue Procedure 93-47 and Revenue Procedure 94-13;
NOW THEREFORE, effective on the dates described below, the Plan is
hereby amended as shown below.
1. Effective on the first day of the Plan Year commencing in 1994,
Section 1.11 is amended using the model amendment language from Revenue
Procedure 94-13 by adding to the end thereof the following subsection (e):
"(e) In addition to other applicable limitations set forth in the Plan,
and notwithstanding any other provision of the Plan to the
contrary, for Plan Years beginning on or after January 1, 1994, the
annual compensation of each Employee taken into account under the
Plan shall not exceed the OBRA '93 annual compensation limit. The
OBRA '93 annual compensation limit is $150,000, as adjusted by the
Commissioner for increases in the cost of living in accordance with
section 401(a)(17)(B) of the Internal Revenue Code. The
cost-of-living adjustment in effect for a calendar year applies to
any period, not exceeding 12 months, over which compensation is
determined (determination period) beginning in such calendar year.
If a determination period consists of fewer than 12 months, the
OBRA '93 annual compensation limit will be multiplied by a
fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is 12.
<PAGE>
For Plan Years beginning on or after January 1, 1994, any reference
in this Plan to the limitation under section 401(a)(17) of the Code
shall mean the OBRA '93 annual compensation limit set forth in this
provision.
If compensation for any prior determination period is taken into
account in determining an employee's benefits accruing in the
current Plan Year, the compensation for that prior determination
period is subject to the OBRA '93 annual compensation limit in
effect for that prior determination period. For this purpose, for
determination periods beginning before the first day of the first
Plan Year beginning on or after January 1, 1994, the OBRA '93
annual compensation limit is $150,000."
2. Effective January 1, 1993, Section 6.03 shall be amended using the
model amendment language from Revenue Procedure 93-47 by adding a new paragraph
to the end of subsection (c)(4) as follows:
"If a distribution is one to which sections 401(a)(11) and 417
of the Internal Revenue Code do not apply, such distribution may
commence less than 30 days after the notice required under section
1.411(a)-11(c) of the Income Tax Regulations is given, provided
that:
(1) the Plan Administrator clearly informs the Participant that the
Participant has a right to a period of at least 30 days after
receiving the notice to consider the decision of whether or not to
elect a distribution (and, if applicable, a particular distribution
option), and
(2) the Participant, after receiving the notice, affirmatively
elects a distribution."
IN WITNESS WHEREOF, Equitable Securities Corporation has caused this
Second Amendment to the Equitable Securities Corporation Prototype Defined
Contribution Plan and Trust to be executed by its duly authorized representative
on this 12th day of December, 1994.
EQUITABLE SECURITIES CORPORATION
By: /s/ H. Larimore Smith
---------------------------------
Title: Chief Financial Officer
--------------------------------
<PAGE>
THIRD AMENDMENT
TO THE
EQUITABLE SECURITIES CORPORATION PROTOTYPE
DEFINED CONTRIBUTION PLAN AND TRUST
BASIC PLAN DOCUMENT #01
WHEREAS, Equitable Securities Corporation sponsors the Equitable
Securities Corporation Prototype Defined Contribution Plan and Trust (the
"Plan") in order to assist Employers in adopting a defined contribution plan and
trust which is qualified under Section 401(a) and Section 501(a) of the Code,
respectively; and
WHEREAS, Equitable Securities Corporation desires to amend the Plan to
incorporate the model amendment permitted by Revenue Procedure 96-55;
NOW THEREFORE, effective on the first day of the first plan year
beginning on or after December 12, 1994, or, if later, 90 days after December
12, 1994, Section 11.11 of the Plan is amended by adding the following model
amendment language from Revenue Procedure 96-55 to the end thereof:
"Notwithstanding any provisions of this plan to the contrary, to the
extent that any optional form of benefit under this plan permits a
distribution prior to the employee's retirement, death, disability, or
severance from employment, and prior to plan termination, the optional
form of benefit is not available with respect to benefits attributable
to assets (including the post-transfer earnings thereon) and
liabilities that are transferred, within the meaning of ss414(1) of the
Internal Revenue Code, to this plan from a money purchase pension plan
qualified under ss401(a) of the Internal Revenue Code (other than any
portion of those assets and liabilities attributable to voluntary
employee contributions)."
IN WITNESS WHEREOF, Equitable Securities Corporation has caused this
Third Amendment to the Equitable Securities Corporation Prototype Defined
Contribution Plan and Trust to be executed by its duly authorized representative
on this 19th day of June, 1997.
EQUITABLE SECURITIES CORPORATION
By: /s/ H. Larimore Smith
---------------------------
Title: Chief Financial Officer
---------------------------
EXHIBIT 5.1
[SUNTRUST BANKS, INC. LETTERHEAD]
November 22, 1999
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As Senior Vice President, Managing Attorney and Secretary for SunTrust
Banks, Inc. (the "Company"), I am familiar with the preparation and filing of
the Company's Registration Statement on Form S-8 (the "Registration Statement"),
as filed with the Securities and Exchange Commission (the "Commission") on or
about November 22, 1999, with respect to 400,000 shares of the Company's common
stock, $1.00 par value per share (the "Plan Shares"), issuable pursuant to the
Equitable Securities Corporation Profit Sharing Plan (the "Plan") as referenced
in the Registration Statement.
I have reviewed the Plan and the Registration Statement, and I have
examined and am familiar with, the original or copies, certified or otherwise,
of the documents, corporate records and other instruments of the Company
relating to the proposed issuance of the Plan Shares which I deem relevant and
which form the basis of the opinion hereinafter set forth.
I am of the opinion that:
1. Under the laws of the State of Georgia, the jurisdiction in which
the Company is incorporated and the jurisdiction in which the Company has its
principal office, the Company is duly incorporated, validly existing and in good
standing; and
2. The issuance of the Plan Shares has been duly authorized by the
Company and, upon issuance pursuant to the terms of the Plan, the Plan Shares
will be legally issued and outstanding, fully paid and nonassessable, and no
personal liability will attach to the holders of the Plan Shares.
The undersigned counsel to the Company hereby consents to the filing of
this opinion with the Commission as Exhibit 5.1 to the Registration Statement.
Sincerely,
/s/ Raymond D. Fortin
---------------------
Raymond D. Fortin
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
February 25, 1999 incorporated by reference in SunTrust Banks, Inc.'s Form 10-K
for the year ended December 31, 1998 and to all references to our Firm included
in this registration statement.
/s/ ARTHUR ANDERSEN LLP
- -----------------------
Atlanta, Georgia
November 22, 1999
