EXHIBIT 4.1
UNITIL CORPORATION TAX DEFERRED SAVINGS AND INVESTMENT PLAN
Amendment and Restatement Effective as of January 1, 1989
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TABLE OF CONTENTS
Page
INTRODUCTION...................................................................1
ARTICLE I
DEFINITIONS....................................................................3
1.01 Account......................................................3
1.02 Affiliated Employer..........................................3
1.03 Beneficiary..................................................3
1.04 Board of Directors or Board..................................3
1.05 Code or Internal Revenue Code................................3
1.06 Compensation.................................................3
1.07 Disability...................................................4
1.08 Effective Date...............................................4
1.09 Employee.....................................................4
1.10 Employee Contributions.......................................5
1.11 Employer.....................................................5
1.12 Employer Matching Contributions..............................5
1.13 Employment Commencement Date.................................5
1.14 Entry Date...................................................5
1.15 Fund or Trust Fund...........................................5
1.16 Highly Compensated Employee..................................6
1.17 Hour of Service..............................................7
1.18 Normal Retirement Age........................................8
1.19 One-Year Break in Service....................................8
1.20 Participant..................................................9
1.21 Pay Reduction Contributions..................................9
1.22 Plan.........................................................9
1.22 Plan Administrator...........................................9
1.23 Plan Year....................................................9
1.24 Rollover Contributions.......................................9
1.25 Trust or Trust Agreement....................................10
1.26 Trustee.....................................................10
1.27 Valuation Date..............................................10
1.28 Year of Service.............................................10
ARTICLE II
ELIGIBILITY AND PARTICIPATION.................................................11
2.01 Eligibility.................................................11
2.02 Election of Pay Reduction Contributions and/or
Employee Contributions......................................11
2.03 Reemployment................................................11
ARTICLE III
PARTICIPANT AND EMPLOYER CONTRIBUTIONS........................................12
3.01 Amount of Pay Reduction Contributions and/or
Employee Contributions......................................12
3.02 Changes in Pay Reduction Contributions and/or
Employee Contributions......................................12
3.03 Applicability of Code Sections 401(k) and 401(m) Rules......12
3.04 Employer Matching Contributions.............................13
3.05 Payment of Contributions to Trustee.........................13
3.06 Non-Discrimination Provisions...............................13
3.07 Maximum Limitations on Allocations to Members...............15
3.08 Limited Return of Contributions.............................16
3.09 Rollover Contributions......................................16
ARTICLE IV
INVESTMENT OF ASSETS..........................................................17
4.01 In General..................................................17
4.02 Dividends, Interest, Etc....................................17
4.03 Investment Directions.......................................17
4.04 Investment Options..........................................17
ARTICLE V
MAINTENANCE AND VALUATION OF ACCOUNTS.........................................19
5.01 Participants Accounts.......................................19
5.02 Valuation of Trust Fund and Allocation of Increases
and Decreases to Participants...............................19
ARTICLE VI
WITHDRAWALS DURING EMPLOYMENT.................................................20
6.01 General Rules...............................................20
6.02 Acceptable Purposes for Withdrawals.........................20
6.03 Withdrawal Rules for Pay Reduction Contributions............20
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ARTICLE VII
VESTING..............................................................22
7.01 Vesting in Pay Reduction, Employee and
Rollover Contributions......................................22
7.02 Instances of Full Vesting in Employer Matching
Contributions...............................................22
7.03 Vesting Schedule for Employer Matching Contributions........22
7.04 Forfeitures.................................................22
7.05 Vesting Upon Reemployment...................................23
7.06 Suspension Account..........................................23
ARTICLE VIII
DISTRIBUTION OF BENEFITS......................................................25
8.01 Retirement or Termination of Employment.....................25
8.02 Death.......................................................25
8.03 Timing of Payment...........................................25
8.04 Deferral of Payment.........................................25
8.05 Forms, Manner and Medium of Payment.........................25
8.06 Designation of Beneficiary..................................26
8.07 Required Distributions......................................26
8.08 Payments to Alternate Payees................................28
8.09 Direct Rollovers............................................28
ARTICLE IX
EMPLOYEE LOANS................................................................30
9.01 Eligibility for Loans.......................................30
9.02 Limitations, Terms and Conditions for Loans.................30
9.03 Separate Loan Accounts......................................31
ARTICLE X
TOP-HEAVY PROVISIONS..........................................................32
10.01 Aggregation Group...........................................32
10.02 Determination Date..........................................32
10.03 Top Heavy Plan..............................................32
10.04 Minimum Allocation..........................................33
ARTICLE XI
TRUST ADMINISTRATION..........................................................35
11.01 Trust Agreement.............................................35
11.02 Trustee's Right to Retain Cash..............................35
11.03 Selection of Accountants, Etc...............................35
11.04 Trust Expenses, Etc.........................................35
11.05 Trust Agreement Part of Plan................................36
ARTICLE XII
ADMINISTRATION OF THE PLAN....................................................37
12.01 Appointment of Administrator................................37
12.02 Authority to Delegate.......................................37
12.03 Authority to Establish Rules, Etc...........................37
12.04 Instructions, Decisions, Compensation, Etc..................37
12.05 Maintenance of Accounts, Etc................................37
12.06 Responsibility of Delegates.................................38
12.07 Claims Procedure............................................38
ARTICLE XIII
AMENDMENT AND TERMINATION.....................................................39
13.01 Amendment...................................................39
13.02 Termination.................................................39
13.03 Procedure Upon Termination..................................39
13.04 Merger......................................................39
13.05 Retroactive Amendments......................................40
ARTICLE XIV
MISCELLANEOUS.................................................................41
14.01 Mergers, Etc. with Employer.................................41
14.02 Non-Alienation of Benefits..................................41
14.03 Participant and Employee Rights.............................41
14.04 Incapacity of Payee.........................................42
14.05 Actions by the Employer.....................................42
14.06 Governing Law...............................................42
14.07 Titles, Etc.................................................42
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INTRODUCTION
Effective as of July 1, 1987, the Concord Electric Company Tax Deferred
Savings and Investment Plan, initially adopted effective as of January 1, 1985
by Concord Electric Company, a wholly owned subsidiary of UNITIL Corporation
("UNITIL"), and the UNITIL Corporation Tax Deferred Savings and Investment Plan,
initially adopted effective as of January 1, 1985 by UNITIL Service Corp., also
a wholly owned subsidiary of UNITIL, were amended and restated and consolidated,
under the name of UNITIL Corporation Tax Deferred Savings and Investment Plan
(the "Plan").
Effective as of January 1, 1989, the Plan was also adopted by Exeter &
Hampton Electric Company, also a wholly owned subsidiary of UNITIL, for its
employees who were not covered by a collective bargaining agreement and was
merged with that portion of the Exeter & Hampton Electric Company Thrift Savings
Plan relating to those employees. Effective as of January 1, 1990, the Plan was
also adopted by said Exeter & Hampton Electric Company for its remaining,
collective-bargaining employees and merged with the remaining portion of said
Exeter & Hampton Electric Company Thrift Savings Plan relating to those
employees.
Pursuant to an Amended, and Restated Agreement and Plan of Merger dated May
23, 1991 by and among Fitchburg Gas and Electric Light Company ("Fitchburg"),
UNITIL and UMC Electric Company, Inc. ("UMC"), UNITIL acquired all of the issued
and outstanding voting stock of Fitchburg and merged UMC, a wholly owned
subsidiary of UNITIL, with and into Fitchburg ("Fitchburg Merger"), effective as
of April 29, 1992.
Prior to the Fitchburg Merger, Fitchburg had established, initially
effective as of July 1, 1987, the Fitchburg Gas and Electric Light Company Tax
Deferred Savings and Investment Plan ("Fitchburg Management Plan") and the
Fitchburg Gas and Electric Light Company Union Tax Deferred Savings and
Investment Plan ("Fitchburg Union Plan"). As a result of the Fitchburg Merger,
the Fitchburg Management Plan was merged with the Plan, effective as of May 8,
1992. Also, the Fitchburg Union Plan is to be merged with the Plan, effective as
of January 1, 1994, with a one percent employer matching contribution added
effective as of May 1, 1994 for all participants covered by the applicable
collective-bargaining agreement.
The Plan is funded by a trust under a Trust Agreement entered into by the
Employer and The First National Bank of Boston, as current Trustee thereunder,
which Trust Agreement was an amendment, restatement and consolidation dated June
27, 1987, effective as of July 1, 1987, of the trusts under certain of the other
plans described above that were merged with the Plan and has been further
amended to provide for the merger with the Plan of the remaining such other
plans (collectively, the "Prior Plans").
Accordingly, UNITIL and its above-described subsidiaries (the "Employer")
have adopted this amendment and restatement of the Plan, and to the extent
applicable, of each of the Prior Plans, generally effective as of January 1,
1989, in order to (i) take into account the above-described events, and (ii)
comply with the provisions of the Tax Reform Act of 1986 and subsequent
legislation and related regulations, to the extent they have not already been
taken into account or complied with.
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It is the intent of the Employer that the Plan and the trust thereunder
shall be established and maintained as (1) an employee benefit plan which
complies with the Employee Retirement Income Security Act of 1974, as amended
("ERISA"); and (2) a plan that is designed to qualify as a profit- sharing for
purposes of sections 401(a), 401(k), 401(m), 402, 412, 417 and 501(a) of the
Code, regardless of whether the Employer has current or accumulated earnings or
profits for the Employer taxable year ending with or within the relevant Plan
Year.
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ARTICLE I
DEFINITIONS
1.01 Account.
"Account" means the sum held for a Participant or Beneficiary at any
time, reflecting all Pay Reduction Contributions, Employer Matching
Contributions, Rollover Contributions, Employee Contributions and the
investment thereof. Unless specified otherwise, the net value of such
Account shall be determined as of the Valuation Date coincident with
or next preceding any distribution event.
1.02 Affiliated Employer.
"Affiliated Employer" means the Employer and any corporation which is
a member of a controlled group of corporations (as defined in section
414(b) of the Code) which includes the Employer; any trade or business
(whether or not incorporated) which is under common control (as
defined in section 414(c) of the Code) with the Employer; any
organization (whether or not incorporated) which is a member of an
affiliated service group (as defined in section 414(m) of the Code)
which includes the Employer; and any other entity required to be
aggregated with the Employer pursuant to regulations under section
414(o) of the Code.
1.03 Beneficiary.
"Beneficiary" means the person or persons designated by a Participant,
or otherwise identified, pursuant to the provisions of Section 8.06 of
the Plan, to receive distributions of such Participant's Account upon
his death.
1.04 Board of Directors or Board.
"Board of Directors" or "Board" means the board of directors of each
respective Employer.
1.05 Code or Internal Revenue Code.
"Code" or "Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time.
1.06 Compensation.
"Compensation" means total compensation as defined in Code section
415(c)(3) from the Employer in any one calendar year received by an
Employee during the period in which he is eligible to participate in
the Plan, including any amount which is contributed on behalf of an
Employee by the Employer through a salary reduction agreement and
which is not includible in the gross income of the Employee under
section 125, 402(e), 402(h) or 403(b) of the Code, but excluding
solely for the purposes of determining Employer Matching Contributions
hereunder any overtime pay and commissions. In no event shall an
Employee's annual Compensation for the purpose of determining any
benefits
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provided under the Plan exceed (i), for periods occurring prior to
January 1, 1994, $200,000, and (ii), for periods occurring after
December 31, 1993, $150,000. These limitations shall be adjusted at
such times and in such manner as provided under section 401(a)(17) of
the Code.
In determining the Compensation of a Participant for purposes of this
limitation, the rules of Code section 414(q)(6) shall apply, except
that in applying such rules, the term "family" shall include only the
spouse of the Participant and any lineal descendants of the
Participant who have not attained age 19 before the close of the year.
If, as a result of the application of such rules the adjusted $200,000
or $150,000 limitation, as applicable, is exceeded, then the
limitation shall be prorated among the affected individuals in
proportion to each such individual's Compensation as determined under
this Section 1.06 prior to the application of this limitation.
1.07 Disability.
"Disability" means totally and permanently disabled as determined by
the Plan Administrator (a) on medical evidence furnished by a licensed
physician approved by the Plan Administrator, (b) on evidence that the
Participant is eligible for disability benefits under any long term
disability plan sponsored by an Affiliated Employer but administered
by an independent third party, or (c) on evidence that the Participant
is eligible for total and permanent disability benefits under the
Social Security Act in effect at the date of disability.
1.08 Effective Date.
"Effective Date" means January 1, 1989, the effective date of the Plan
(or applicable Prior Plan) as restated and amended among other things
to comply with the Tax Reform Act of 1986 and subsequent legislation
and applicable regulations thereunder, provided, however, that (i)
Section 8.07 hereof shall instead be effective as of January 1, 1985,
(ii) Sections 3.06 and 3.07 shall instead be effective as of January
1, 1987, (iii) Sections 3.09 and 8.09 hereof shall instead be
effective as of January 1, 1993, and (iv) Sections 13.04 (second
paragraph) hereof shall instead be effective as of January 1, 1994, in
each case superseding the corresponding provisions of the Plan (or
applicable Prior Plan) previously in effect. As so restated as of such
various dates, the respective provisions of the Plan shall apply only
to Employees who terminate their employment or participation in the
Plan (or applicable Prior Plan) on or after those respective dates.
The rights and benefits, if any, of each other Employee shall be
determined in accordance with the provisions of the Plan (or
applicable Prior Plan) in effect on the date such Employee terminated
his employment.
1.09 Employee.
"Employee" means any person employed by the Employer. The term
"Employee" shall also include any "leased employee" deemed to be an
employee of the Employer or any Affiliated Employer, provided,
however, that no such leased employee shall thereby be eligible to
participate in the Plan. The term "leased employee" means any person
(other than an employee of the recipient) who, pursuant to an
agreement between the recipient
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and any other person ("leasing organization"), has performed services
for the recipient (or for the recipient and related persons determined
in accordance with Section 414(n)(6) of the Code) on a substantially
full-time basis for a period of at least one year, where such services
are of a type historically performed by employees in the business
field of the recipient employer. Contributions or benefits provided 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.
A leased employee shall not be considered an employee of the recipient
if: (a) such employee is covered by a money purchase pension plan
providing: (1) a non-integrated employer contribution rate of at least
10 percent of compensation, but including amounts contributed 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, (2) immediate participation, and
(3) full and immediate vesting; and (b) leased employees do not
constitute more than 20 percent of the recipient's non-highly
compensated workforce.
1.10 Employee Contributions.
"Employee Contributions" means amounts contributed by a Participant on
an after-tax basis pursuant to Section 3.01.
1.11 Employer.
"Employer" means UNITIL Corporation and each of the following
wholly-owned subsidiaries thereof which have adopted the Plan: Concord
Electric Company, Exeter & Hampton Electric Company, Fitchburg Gas and
Electric Light Company, and UNITIL Service Company. The term Employer
also includes any other organization that has adopted the Plan with
the consent of the Employer and any successor of the Employer.
1.12 Employer Matching Contributions.
"Employer Matching Contributions" mean the amounts contributed by the
Employer pursuant to Sections 3.04.
1.13 Employment Commencement Date.
"Employment Commencement Date" means the date on which an Employee
first rendered an Hour of Service to the Employer.
1.14 Entry Date.
"Entry Date" means January 1 and July 1 of each Plan Year.
1.15 Fund or Trust Fund.
"Fund" or "Trust Fund" means all property held by the Trustee for
purposes of the Plan.
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1.16 Highly Compensated Employee.
"Highly Compensated Employee" means each highly compensated active
employee and each highly compensated former employee.
A highly compensated active employee includes any Employee who
performs service for the Employer during the determination year and
who, during the look-back year: (a) received compensation from the
Employer in excess $75,000; (b) received compensation from the
Employer in excess of $50,000 and was a member of the top- paid group
for such year; or (c) was an officer of the Employer and received
compensation during the year in excess of 50 percent of the dollar
limitation in effect under section 415(b)(1)(A) of the Code. A highly
compensated active employee is also an Employee who meets both of the
following requirements: (a) an Employee who would be included in the
preceding sentence if the determination year were substituted for the
look-back year; and (b) the Employee is one of the 100 Employees who
received the most compensation from the Employer during the
determination year. A highly compensated active employee is also any
Employee who was a 5 percent owner at any time during the look-back
year or the determination year.
The number of officers treated as Highly Compensated Employees must be
at least 1, but it cannot exceed the lesser of (a) 50, or (b) the
greater of (1) 3 or (2) 10 percent of all Employees.
The dollar amounts reflected above shall be adjusted for inflation at
the same time and in the same manner as the indexing of dollar limits
under section 415(d) of the Code.
For purposes of this Section 1.16, the determination year shall be the
Plan Year. The look-back year shall be the calendar year ending with
the Plan Year for which testing is being performed.
The definition of compensation for purposes of this Section 1.16 shall
be total compensation received from the Employer as defined in section
414(q)(7) of the Code.
If, during the look-back year or the determination year, an Employee
is a family member of either (a) a 5 percent owner; or (b) a Highly
Compensated Employee who is one of the ten most highly paid Employees
ranked on the basis of compensation received from the Employer, the
Employee/family member and the 5 percent owner or top ten Highly
Compensated Employee shall be aggregated and treated as a single
Employee receiving compensation and contributions and benefits equal
to the sum of the respective amounts each receives. A family member is
defined as: (a) a spouse; (b) lineal ascendants and descendants; and
(c) the spouses of 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 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.
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The term highly compensated former employee includes any Employee who
separated from service (or who was deemed to have separated from
service) prior to the determination year and who was treated as a
Highly Compensated Employee in either: (a) his separation year; or (b)
any determination year ending on or after his 55th birthday.
1.17 Hour of Service.
"Hour of Service" means, with respect to any person, the following:
(a) Each hour for which such person is directly or indirectly paid,
or entitled to payment, by the Employer or an Affiliated Employer
for the performance of duties during the period in connection
with which the term is used.
(b) Each hour for which such person is directly or indirectly paid,
or entitled to payment, on account of any of the following
periods during which no duties are performed (irrespective of
whether the employment relationship has terminated), provided,
however, that no more than 501 Hours of Service shall be credited
under this Subsection (b) to any person on account of any single
continuous period during which he performs no duties, and
provided, further, that no such hours shall be credited with
respect to a payment that is made or due under a plan maintained
solely for the purpose of complying with applicable workers
compensation, unemployment compensation or disability insurance
laws:
(i) Periods of time during which such person has been excused
from work by the Employer or an Affiliated Employer by
reason of vacation, holiday, illness, incapacity (including
disability), layoff or jury duty, provided that, in the
event that such person fails to return to work upon the
expiration of the period for which he has been so excused,
his employment shall be deemed to terminate upon such
expiration;
(ii) Periods covered by leaves of absence authorized in writing
by the Employer or an Affiliated Employer, provided that, in
the event the person in question fails to return to the
active employ of the Employer or an Affiliated Employer upon
the expiration of the period of such authorized leave of
absence, his employment shall be deemed to terminate upon
such expiration;
(iii)Periods of service with the Armed Forces of the United
States if the person in question leaves the employ of the
Employer or an Affiliated Employer to enter, and directly
enters, such Armed Forces, provided that, in the event that
such person fails to return to the employ of the Employer or
an Affiliated Employer within ninety (90) days after his
release from such Armed Forces (or within such further
period as the Employer or an Affiliated Employer may allow)
without intervening employment elsewhere, his employment
shall terminate upon the expiration of such ninety (90) days
or such further period.
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(c) To the extent not already credited under Subsection (a) or (b) of
this Section 1.17, each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by the
Employer or an Affiliated Employer, subject to the limitation of
501 Hours of Service set forth in Subsection (b) of this Section
1.17 in crediting Hours of Service for back pay awarded or agreed
to with respect to periods described in said Subsection (b).
(d) To the extent not already described under Subsection (a), (b) or
(c) of this Section 1.17, each hour as then determined by the
Employer or an Affiliated Employer to be credited for periods
covered by leaves of absence authorized by it, provided, however,
that all such determinations shall be uniform in nature and
applicable to all persons similarly situated.
The provisions relating to the special rule for determination of hours
of service for reasons other than the performance of duties and to the
crediting of hours of service to computation periods in Section
2530.200b-2(b) and (c), respectively, of the United States Department
of Labor Regulations are incorporated herein by reference.
Notwithstanding the foregoing provisions of this Section 1.17, but
subject to the limitation of 501 Hours of Service set forth in
Subsection (b), for the purposes of determining the Hours of Service
of any person compensated on a salaried or commission basis, each day
for which such person shall have completed one Hour of Service as
otherwise herein provided shall be deemed the equivalent of ten (10)
Hours of Service.
1.18 Normal Retirement Age.
"Normal Retirement Age" means an Employee's attainment of age 65 or,
if later, the 5th anniversary of the date he first became a
Participant.
1.19 One-Year Break in Service.
"One-Year Break in Service" means a Plan Year in which a person is
credited with less than 501 Hours of Service, provided, however, that
solely for purposes of determining a One-Year Break in Service, any
person who is on maternity or paternity leave shall be credited with
501 Hours of Service during the first Plan Year in which he would have
sustained a One-Year Break in Service.
For this purpose, maternity or paternity leave means termination of
employment or absence from work due to the pregnancy of the Employee,
the birth of a child of the Employee, the placement of a child in
connection with the adoption of the child by the Employee, or the
caring for the Employee's child during the period immediately
following the child's birth or placement for adoption. The Plan
Administrator shall determine, under rules of uniform application and
based on information provided by the Employee, whether or not the
Employee's termination of employment or absence from work is due to
maternity or paternity leave.
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1.20 Participant.
"Participant" means an Employee who has become such in accordance with
Section 2.01, and for whose Account an amount remains in the Trust
Fund.
1.21 Pay Reduction Contributions.
"Pay Reduction Contributions" means the amounts contributed by the
Employer on behalf of a Participant through salary reduction pursuant
to Section 3.01.
1.22 Plan.
"Plan" means the UNITIL Corporation Tax Deferred Savings and
Investment Plan as herein set forth, and as may be amended from time
to time, and to the extent applicable, any Prior Plan.
For the purposes hereof, "Prior Plan" means--
(i) each of the Concord Electric Company Tax Deferred Savings and
Investment Plan, as adopted by Concord Electric Company, and
UNITIL Corporation Tax Deferred Savings and Investment Plan, as
adopted by UNITIL Service Corp. (each consolidated into the Plan
as of July 1, 1987);
(ii) the Exeter & Hampton Electric Company Thrift Savings Plan (merged
in part with the Plan as of January 1, 1989);
(iii)the Fitchburg Gas and Electric Light Company Tax Deferred
Savings and Investment Plan (merged with the Plan as of May 8,
1992); and
(iv) the Fitchburg Gas and Electric Light Company Tax Deferred Savings
and Investment Plan (merged with the Plan as of January 1, 1994).
1.22 Plan Administrator.
"Plan Administrator" means the Employer.
1.23 Plan Year.
"Plan Year" means a twelve (12) month period commencing January I and
ending on December 31.
1.24 Rollover Contributions.
"Rollover Contributions" means an amount contributed by a Participant
pursuant to Section 3.09.
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1.25 Trust or Trust Agreement.
"Trust" or "Trust Agreement" means the trust agreement entered into
with the Trustee, pursuant to Article XI herein, as amended from time
to time.
1.26 Trustee.
"Trustee" means the Trustee or Trustees acting as such under a Trust
Agreement, including any successor or successors.
1.27 Valuation Date.
"Valuation Date" means the any of the date established by the Plan
Administrator for the valuation of the assets and liabilities of the
Trust. Valuation Dates shall occur on March 31, June 30, September 30
and December 31 of each Plan Year and on such other dates as the Plan
Administrator deems necessary.
1.28 Year of Service.
"Year of Service" means each Plan Year during which an Employee has
completed at least 1,000 Hours of Service.
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ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.01 Eligibility.
Each Employee who was a Participant in the Plan on December 31, 1987
shall automatically be a Participant in the amended and restated Plan
on January 1, 1989. Each other Employee (other than a leased Employee)
shall become a Participant on the Entry Date coinciding with or next
following the date on which he has both attained 18 years of age and
complete 1,000 Hours of Service in an "Employment Year" (regardless of
whether the Employment Year has then been completed). The initial
"Employment Year" for an Employee shall be the 12-month period
commencing on his "Employment Commencement Date," and succeeding
Employment Years shall be Plan Years commencing with the Plan Year in
which occurs the first anniversary date of his Employment Commencement
Date. His "Employment Commencement Date" shall be the date he was
first credited with an Hour of Service.
2.02 Election of Pay Reduction Contributions and/or Employee Contributions.
A Participant may elect at any time, by completing and delivering to
the Plan Administrator a form approved by it for the purpose, a
percentage of his Compensation to be contributed to the Plan on his
behalf as a Pay Reduction Contribution and/or an Employee
Contribution. The Participant shall specify a whole percentage of
Compensation and may elect to contribute the amount in any combination
of Pay Reduction Contributions and Employee Contributions, provided,
however, that the Employer may impose reasonable, nondiscriminatory
restrictions on the percentages so elected and contributed in order to
ensure that no Pay Reduction Contributions exceed the amount
deductible by the Employer under section 404 of the Code. In no event
shall a Participant be permitted to make Pay Reduction Contributions
and Employee Contributions aggregating in excess of 12 percent of his
Compensation. Notwithstanding anything herein to the contrary, if the
amount of Pay Reduction Contributions made on behalf of a Participant
reaches the limit referenced in Section 3.01 in any calendar year, all
additional contributions made on behalf of the Participant will
automatically be made as Employee Contributions.
2.03 Reemployment.
A Participant who resumes employment with an Affiliated Employer after
a termination of employment shall be treated as a Participant
immediately upon his rehire and may elect to become a Participant as
of the next payroll period following his return to active employment.
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ARTICLE III
PARTICIPANT AND EMPLOYER CONTRIBUTIONS
3.01 Amount of Pay Reduction Contributions and/or Employee Contributions.
In each Plan Year a Participant may authorize Pay Reduction
Contributions as described in Section 2.02. Pay Reduction
Contributions by a Participant are not to exceed $7,627 (for 1989), or
such higher indexed amount as set by the Secretary of the Treasury.
This maximum shall be reduced if the Participant participates in other
plans of the Employer or plans of another employer to which amounts
are contributed on his behalf at his election in accordance with
section 401 (k) of the Code. This maximum also may be reduced for
Highly Compensated Employees in the event that the Plan does not pass
the applicable nondiscrimination test described in Section 3.06(a). In
each Plan Year, the Participant may also authorize Employee
Contributions as described in Section 2.02. This amount may be reduced
for Highly Compensated Employees in the event the Plan does not pass
the applicable nondiscrimination test described in Section 3.06(a).
3.02 Changes in Pay Reduction Contributions and/or Employee Contributions.
The amount of Pay Reduction Contributions and Employee Contributions
authorized by the Participant to be made on his behalf by the Employer
shall remain in effect until such time as he shall change the rate or
suspend such contributions by filing with the Plan Administrator a
form prescribed for such purpose. A Participant may increase his
contributions by completing and filing another election form with the
Plan Administrator at least 30 days (or such shorter period as the
Plan Administrator may permit) before the date on which the
modification is scheduled to take effect. A modification increasing
contributions shall only take effect on January 1st or July 1st.
A Participant may decrease or suspend his contributions at any time by
filing an election form with the Plan Administrator to that effect.
Any such election to decrease or suspend contributions shall take
effect as of the next following payroll period. A Participant may
resume making contributions as of the any following January 1st or
July 1st, provided he files an election form with the Plan
Administrator at least 30 days (or such shorter period as the Plan
Administrator may permit) before the date on which the resumption is
to take effect.
3.03 Applicability of Code Sections 401(k) and 401(m) Rules.
All Pay Reduction Contributions shall be subject to the rules set
forth in section 401(k) of the Code and the regulations issued
thereunder. All Employee Contributions shall be subject to the rules
set forth in section 401(m) of the Code and the regulations issued
thereunder. The Plan Administrator shall maintain separate accounting
records for Pay Reduction Contributions and Employee Contributions.
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3.04 Employer Matching Contributions.
In each Plan Year, the Employer shall make such, if any, Employer
Matching Contributions within the meaning of Code section 401(m)(4)(a)
on behalf of each Participant, equal to the Participant's aggregate
Pay Reduction Contributions and Employee Contributions made in that
Plan Year as are deemed matchable under the following table:
Matchable Contributions
Collective-bargaining Employees of Fitchburg Gas
and Electric Light Company
o Prior to May 1, 1994 Nil
o From May 1, 1994 through April 30, 1995 1 percent
o From May 1, 1995 through April 30, 1996 2 percent
o After April 30, 1996 3 percent
All other Employees 3 percent
Notwithstanding any other provisions of the Plan, no Employer Matching
Contributions shall be made if they would exceed the amount deductible
by the Employer under section 404 of the Code, and no Employer
Matching Contributions shall be made or allocated to a Participant
with respect to any Pay Reduction Contributions required to be
returned to the Participant pursuant to Section 3.06(c) or (d), or
with respect to any Voluntary Contribution required to be returned to
the Participant pursuant to Section 3.06(e).
3.05 Payment of Contributions to Trustee.
As promptly as practicable after each pay period, the Employer shall
remit to the Trust Fund the aggregate amount of Pay Reduction
Contributions deducted by the Employer for such pay period, but in no
event later than 30 days after the close of the Plan Year. The
Employer shall remit to the Trust Fund the aggregate amount of
Employee Contributions made by the Participants for such pay period
within the time required by Code section 401(m) and the regulations
issued thereunder. Any Employer Matching Contributions to the Trust
Fund for each Plan Year shall be paid within the time required by law
in order for the Employer to obtain a tax deduction under the
provisions of the Code for such Plan Year.
3.06 Non-Discrimination Provisions.
(a) In General. The Plan shall at all times meet the applicable tests
under section 401(k)(3) and 401(m)(2) of the Code and the
regulations promulgated thereunder, which are incorporated herein
by reference.
(b) Compensation. For the purposes of such tests, compensation shall
mean all amounts paid to an Employee by the Employer (including
amounts for periods prior to becoming a Participant) for personal
services as reported on the Employee's Federal Income Tax
Withholding Statement (Form W-2) and excluding any benefits paid
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under the Plan, but including any amount which is contributed by
the Employer pursuant to a salary reduction agreement and which
is not includible in his gross income under sections 125,
402(a)(8), 402(h) or 403(b) of the Code. For this purpose,
compensation shall not exceed (i), for periods occurring prior to
January 1, 1994, $235,840, and (ii), for periods occurring after
December 31, 1993, $150,000, each such amount to be adjusted at
such times and in such manner as provided under section
401(a)(17) of the Code.
(c) Correction of Excess Deferrals. If during any taxable year of a
Participant, the total amount of his salary reduction
contributions to all qualified cash or deferred arrangements
exceeds $7,000 (as from time to time adjusted by the Secretary of
the Treasury), then the amounts in excess of $8,994 (as adjusted
as aforesaid) are to be included in the Participant's gross
income for the taxable year to which such deferral relates.
Notwithstanding anything in the Plan to the contrary, if prior to
March 1 following the close of the Participant's taxable year,
the Participant notifies the Plan that he requests a return of
part or all of his prior Plan Year's Pay Reduction Contributions
which exceed said $7,000 limit (and any income allocable to such
amounts) pursuant to section 402(g) of the Code and the
regulations thereunder, the Plan may (but is not required to)
return (not later than the first April 15 after the Participant's
taxable year ends) the amount of the Participant's Pay Reduction
Contributions with allocable income which the Participant
requested to be returned. The Participant's request will be
limited solely to Pay Reduction Contributions deemed made in the
immediately prior taxable year. A Participant whose Pay Reduction
Contributions for a taxable year, standing alone, exceed the
limit imposed by section 402(g) of the Code shall be deemed to
have notified the Plan and requested the return of the amount by
which the Pay Reduction Contributions exceed that limit. The Plan
Administrator shall establish such rules and regulations as it
deems necessary to carry out the effect of this provision. The
Plan Administrator will apply its rules and regulations uniformly
with respect to each Participant.
(d) Correction of Excess Contributions. If the Pay Reduction
Contributions made on behalf of Participants cause the Plan to
fail the applicable nondiscrimination test described in Section
3.06(a), then any excess contributions and any allocable income
shall be returned to the affected Participants not later than 12
months after the close of the Plan Year in which the excess
contribution was made. Any excess contributions to be distributed
shall be reduced by excess deferrals previously distributed under
Section 3.06(c).
If a distribution becomes necessary, it will be first applied to
the Participant who is the Highly Compensated Employee electing
the highest percentage of Pay Reduction Contributions pursuant to
Section 2.02 until the applicable nondiscrimination test
described in Section 3.06(a) is met or until such Participant's
election pursuant to Section 2.02 is reduced to the same
percentage level as the Participant who is the Highly Compensated
Employee electing the second highest percentage of Pay Reduction
Contributions pursuant to Section 2.02. If further limitations
are required, then the two Participants' elections pursuant to
Section
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2.02 shall be reduced until the applicable nondiscrimination test
of Section 3.06(a) is met or until the two Participants'
elections are reduced to the same percentage level as the
Participant who is the Highly Compensated Employee electing the
third highest percentage of Pay Reduction Contributions pursuant
to Section 2.02, and such distributions shall continue to be made
in a similar manner from the Participants who are Highly
Compensated Employees making the highest percentage elections to
the lowest until the applicable nondiscrimination test described
in Section 3.06(a) is satisfied. Excess contributions shall be
allocated to Participants who are subject to the family
aggregation rules of section 414(q)(6) of the Code in the manner
prescribed by the regulations.
(e) Correction of Excess Aggregate Contributions. If the Employer
Matching Contributions and Employee Contributions made on behalf
of Participants cause the Plan to fail the applicable
discrimination test under Section 3.06(a), then any excess
aggregate contributions and any allocable income shall be
distributed to the affected Participants, no later than 12 months
after the close of the Plan Year in which the excess aggregate
contribution was made.
If such distribution becomes necessary, it will be first applied
to the Participant who is the Highly Compensated Employee with
the highest aggregate contribution percentage of Employee
Contributions pursuant to Section 2.02 and Employer Matching
Contributions pursuant to Section 3.04(b) ("Aggregate
Contribution Percentage") until the applicable nondiscrimination
test of Section 3.06(a) is met or until such Participant's
Aggregate Contribution Percentage is reduced to the same
percentage level as the Participant who is the Highly Compensated
Employee with the second highest Aggregate Contribution
Percentage. If further limitations are required, then both such
Participants' percentages shall be reduced until the applicable
nondiscrimination test of Section 3.06(a) is met or until the two
Participants' Aggregate Contribution Percentages are reduced to
the same percentage level as the Participant who is the Highly
Compensated Employee with the third highest Aggregate
Contribution Percentage and such distributions shall continue to
be made in a similar manner from the Participants who are Highly
Compensated Employees with the highest Aggregate Contribution
Percentages to the lowest until the applicable nondiscrimination
test of Section 3.06(a) is satisfied. 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.
3.07 Maximum Limitations on Allocations to Members.
The limitations of section 415 of the Code and the regulations
thereunder are hereby incorporated herein by reference, provided,
however, that if the maximum benefit limitations of section 415(e) of
the Code would otherwise be exceeded, a reduction shall be made in the
benefit payable under, first, any qualified defined benefit plan, and
thereafter, any other qualified defined contribution plan, maintained
by the Employer to the extent necessary to prevent such excess, all in
accordance with section 415 of the Code and the regulations
thereunder.
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3.08 Limited Return of Contributions.
In the event of a mistake of fact, or the disallowance of a deduction
(or the deemed disallowance of a deduction in accordance with
applicable regulations, rulings or procedures), Employer contributions
and the earnings thereon affected by such mistake or disallowance,
respectively, shall be returned to the Employer within one (1) year of
the mistaken payment of the contribution or disallowance of the
deduction, as the case may be, and likewise, Participants'
contributions and earnings thereon will be returned to Participants.
3.09 Rollover Contributions.
In addition to Pay Reduction Contributions made in accordance with
this Article III:
(a) Each Employee may contribute to the Plan up to the entire amount
of cash received in a lump sum distribution from another
qualified defined contribution or defined benefit retirement plan
intended to meet the requirements of section 401(a) of the
Internal Revenue Code, provided that such amount must be received
by the Trustee within sixty (60) days of the Employee's receipt
of the lump sum distribution; and
(b) Each Employee may direct the trustee, custodian or other
fiduciary holding assets for his benefit under the terms of a
qualified defined contribution or defined benefit plan of another
employer to transfer to the Plan, pursuant to section 401(a)(31)
of the Code, all or a portion of such assets.
Before accepting any such amount from an Employee or other person
under this Section (a "Rollover Contribution"), the Employer shall
determine to its satisfaction that such contribution does not contain
amounts from sources which would adversely affect the continued
qualification of the Plan. A Rollover Contribution shall not be
considered an annual addition for purposes of Section 3.07.
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ARTICLE IV
INVESTMENT OF ASSETS
4.01 In General.
Each Participant shall direct that all contributions made in
accordance with Article III be invested in one or more of the
investment funds maintained by the Trustee in accordance with
procedures established by the Plan Administrator.
4.02 Dividends, Interest, Etc.
Dividends, interest and other distributions received by the Trustee
with respect to any investment fund shall be reinvested in the
investment fund from which such dividends, interest and other
distributions were received.
4.03 Investment Directions.
Investment directions given by a Participant shall be made in writing
to the Plan Administrator on a form prescribed for such purpose and
shall continue in effect until changed by such Participant by written
notice to the Plan Administrator on a form prescribed for such
purpose, subject to such other rules as the Plan Administrator in its
discretion may impose. Investment directions may be changed with
regard to future and past contributions as of such dates and otherwise
in such manner as from time to time prescribed by the Plan
Administrator, provided that no Participant shall be permitted to make
any such change more frequently than once each calendar quarter. Such
election may provide that all future contributions are to be invested
in one fund or split among any of the funds in any whole percentages.
Such election may also or in the alternative provide that existing
Account balances may be transferred out of one fund and into another
fund or funds in any whole percentages. In the event a Participant
does not make an election as to the investment of the contributions
made on his behalf, such contributions shall be invested in the Fund
A, as referenced in Section 4.04 hereof.
4.04 Investment Options.
The Plan Administrator, in its discretion, may expand, modify or
otherwise alter the funds available as investment vehicles under the
Plan. As of the Effective Date, the investment funds available are as
follows:
Fund A Guaranteed Investment Fund
A fund invested primarily in guaranteed investment contracts and
guaranteed annuity contracts issued by one or more insurance
companies.
Fund B Conservative Investment Fund (Fidelity Puritan Fund)
A fund invested in stocks and bonds, placing emphasis on
investment return and stability.
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Fund C Aggressive Investment Fund (Fidelity Magellan Fund)
A fund invested in stocks, placing more emphasis on investment
return and less on stability.
Fund D Company Stock Fund
A fund invested primarily in qualifying employer securities (as
defined in section 4975(e)(8) of the Code) of UNITIL Corporation.
Part or all of such fund shall be invested in such qualifying
employer securities of UNITIL Corporation, except for investments
on an interim basis in short-term fixed income investments made
pending purchase of shares of such qualifying employer
securities. All cash dividends received by the Trustee with
respect to the qualifying employer securities held in this fund
shall be retained in such fund and invested in qualifying
employer securities. Notwithstanding the foregoing, the Plan
Administrator may establish such uniform rules with respect to
this qualifying employer security fund as it deems necessary and
appropriate. All rights, including voting and tendering rights,
attributable to such qualifying employer securities (whether
whole or fractional shares) shall be exercised pursuant to the
terms of the Trust Agreement.
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ARTICLE V
MAINTENANCE AND VALUATION OF ACCOUNTS
5.01 Participants Accounts.
There shall be established for each Participant a separate Account in
the Trust Fund which shall reflect all Employee Contributions,
Employer Matching Contributions, Pay Reduction Contributions, Rollover
Contributions, and the investment thereof. Each participant will be
furnished a statement of his Account at least annually.
5.02 Valuation of Trust Fund and Allocation of Increases and Decreases to
Participants.
The interest of a Participant in the Trust Fund shall be valued at
fair market value and adjusted as of each Valuation Date to preserve
such Participant's proportionate interest in the fund or funds in
which the assets of his Account are invested. As of each Valuation
Date, each such fund or funds shall be adjusted to reflect the effect
of income collected accrued, realized and unrealized profits and
losses, expenses and all other transactions during the period between
such Valuation Date and the last preceding Valuation Date with respect
to such fund or funds.
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ARTICLE VI
WITHDRAWALS DURING EMPLOYMENT
6.01 General Rules.
Subject to Section 6.03, a Participant whose employment with the
Employer has not terminated may withdraw all or part of his vested
Account for one of the purposes specified in Section 6.02. The Plan
Administrator shall determine the amount and timing of any such
payment.
6.02 Acceptable Purposes for Withdrawals.
Subject to Section 6.03, the purposes acceptable for withdrawals under
Section 6.01 are as follows:
(a) purchase, construction, improvement or preservation of a
principal place of residence for the Participant;
(b) education of the Participant or any dependent;
(c) unusual expenses associated with illness or accident of the
Participant or any dependent;
(d) unusual expenses associated with death of any dependent; and
(e) any similar severe financial need of the Participant or any
dependent.
6.03 Withdrawal Rules for Pay Reduction Contributions.
A Participant who (i) has attained age 59-1/2 or (ii) is experiencing
hardship due to an immediate and heavy financial need, and who in
either event otherwise has an acceptable purpose under Section 6.02,
may make a withdrawal from his Pay Reduction Contributions Account,
but not more than the aggregate amount of his Pay Reduction
Contributions and earnings credited thereto prior to January 1, 1989,
reduced by any previous withdrawals. For purposes of this Section
6.03, a distribution will be considered to be made on account of an
immediate and heavy financial need if it is made for any of the
following reasons, but shall be limited to the amount necessary to
satisfy that need (including any amounts necessary to pay federal,
state and local taxes and penalties reasonably anticipated to result
from the distribution):
(i) Purchase of a dwelling unit to be used as a principal
residence of the Participant;
(ii) Payment of tuition and related educational fees for the next
12 months of post-secondary education for the Participant or
his spouse or dependents;
(iii)Expenses of the Participant, his spouse, children and other
dependents for medical care described in section 213(d) of
the Code which have been previously incurred or are
necessary for these persons to obtain such care
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<PAGE>
and which are not covered by insurance or a medical plan
maintained by the Employer; or
(iv) Payment necessary to prevent the eviction of the Participant
from his principal residence or the foreclosure of a
mortgage on the Participant's principal residence.
A Participant who requests a distribution pursuant to this Section
6.03 must have obtained all other distributions (other than hardship
distributions) and nontaxable (at the time of the loan) loans, if any,
currently available to him under all plans maintained by the
Affiliated Employer. For this purpose, plan loans will not be deemed
to be "currently available" to the Participant if taking the plan loan
will not alleviate (in whole or in part) the Participant's financial
hardship need or if repaying any such loan would itself cause a
financial hardship for such Participant. A Participant who receives a
distribution from his Pay Reduction Contributions account pursuant to
this Section 6.03: (1) may not make Pay Reduction Contributions the
period of twelve (12) months immediately following the distribution,
and (2) in the calendar year immediately following the calendar year
in which the distribution occurs (the "distribution calendar year")
the Participant's Pay Reduction Contributions shall be limited to (i)
the limit established by section 402(g) of the Code, reduced by (ii)
the amount of the Participant's Pay Reduction Contributions in the
distribution calendar year.
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ARTICLE VII
VESTING
7.01 Vesting in Pay Reduction, Employee and Rollover Contributions.
The portion of a Participant's Account attributable to Pay Reduction
Contributions, Employee Contributions and Rollover Contributions and
the earnings thereon shall be fully vested and nonforfeitable at all
times.
7.02 Instances of Full Vesting in Employer Matching Contributions.
The portion of a Participant's Account attributable to Employer
Matching Contributions and the earnings thereon shall be fully vested
and nonforfeitable upon:
(i) attainment of Normal Retirement Age;
(ii) death; or
(iii) Disability.
7.03 Vesting Schedule for Employer Matching Contributions.
Except as provided in Section 7.02, the portion of a Participant's
Account attributable to Employer Matching Contributions and the
earnings thereon shall be vested according to the following table:
Years of Vesting Service Vested Percentage
Fewer than 1 Nil
1 but fewer than 2 33%
2 but fewer than 3 67%
3 or more 100%
In applying this table, there shall be excluded any Years of Service
excluded under the applicable Prior Plan.
If a new vesting schedule takes effect because of an amendment to the
Plan, each Participant who has at least three Years of Vesting Service
at the time the new schedule takes effect may elect to have his vested
percentage determined in accordance with the old schedule.
7.04 Forfeitures.
A Participant who is not fully vested in his Employer Matching
Contributions Account shall forfeit the nonvested portion thereof upon
the later of the following events:
(a) the date on which there is no vested balance in his Employer
Matching Contributions Account; or
(b) the termination of his employment with the Employer.
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In any event, however, a Participant shall forfeit the nonvested
portion of his Employer Matching Contributions Account upon incurring
five (5) consecutive One-Year Breaks in Service.
Until such forfeiture occurs, the Participant shall retain all the
rights of an active Participant under Article IV to direct the
investment of any amounts so credited to his Account. Forfeitures of
Employer Matching Contributions shall be used to reduce Employer
Matching Contributions otherwise required for the Plan Year and
reallocated at the end of the Plan Year as part of such Employer
Matching Contributions.
If a Participant whose Account has experienced a forfeiture is
reemployed by an Affiliated Employer before he has incurred at least
five (5) consecutive One-Year Breaks in Service, the balance forfeited
by the Participant shall be restored to his Account as of the
Valuation Date next following his return to employment with an
Affiliated Employer. The restoration shall be made first out of
amounts forfeited as of that Valuation Date and then, if that amount
is insufficient, out of an additional contribution made by the
Employer in an amount sufficient to effect the restoration.
7.05 Vesting Upon Reemployment.
A Participant who incurs one or more consecutive One-Year Breaks in
Service before returning to employment with an Affiliated Employer
shall have his Years of Vesting Service determined according to the
following rules:
(a) If the Participant incurred fewer than five (5) consecutive
One-Year Breaks in Service, then all of his Years of Vesting
Service will be taken into account in determining the vesting of
his Account immediately upon his reemployment.
(b) If the Participant incurred five (5) or more consecutive One-Year
Breaks in Service, then no Year of Service completed after his
reemployment will be taken into account in determining the
vesting of his Account as of any time before he incurred the
first One-Year Break in Service.
7.06 Suspension Account.
Notwithstanding any provisions hereof to the contrary, if a
Participant who prior to having completed the Years of Service to
become entitled to a vested right to his entire Employer Matching
Contributions Account (and prior to having incurred five (5)
consecutive One-Year Breaks in Service with respect to the amount
distributed) receives a distribution from such Employer Matching
Contributions Account, then upon each such distribution a separate
account (a "Suspension Account") shall be established for him
hereunder. On any particular date prior to the occurrence of five (5)
consecutive One-Year Breaks in Service, the Participant shall be
entitled to a nonforfeitable portion of the balance of his Suspension
Account, payable as otherwise herein provided, equal to an amount
determined by the following formula:
X = P(AB + D) - D,
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where, for the purposes of applying the formula, X is said portion; P
is the applicable percentage from the table specified in Section 7.03
as of such particular date; AB is the balance in the Suspension
Account as of such particular date; D is the amount which was last
distributed from the Suspension Account or from his Employer Matching
Contributions Account when the Suspension Account was established. The
establishment of a Suspension Account for a Participant whose
employment with the Employer has terminated shall not prevent a
forfeiture of any portion of his Participant Account hereunder from
occurring and a reallocation thereof, all in accordance with the
general provisions hereof, provided, however, that any such forfeiture
shall be restored in the event such person again becomes a Participant
hereunder prior to incurring five (5) consecutive One Year Break in
Service with respect to such forfeiture. Except as otherwise provided
in this Section 7.06, any Suspension Account shall be treated as
though it were the Participant's Employer Matching Contributions
Account from which it was derived for all purposes hereof. Any
restoration of a Participant's Account balances shall be made first
from then-current forfeitures of other Participants' Accounts (and
such amounts shall not be dealt with as provided in Section 7.04) and
second from additional contributions of the Employer (which shall not
be allocated to any other Participants).
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ARTICLE VIII
DISTRIBUTION OF BENEFITS
8.01 Retirement or Termination of Employment.
Benefits are payable to the Participant upon his incurring a
Disability, or upon retirement from or other termination of employment
with the Affiliated Employers. Payment of such benefit shall be made
as soon as practicable pursuant to Section 8.03, or in accordance with
Section 8.04.
8.02 Death.
In the event of the death of a Participant, the full amount credited
to his Account shall be paid from the Trust Fund to his Beneficiary.
Such payment shall be made as soon as practicable pursuant to Section
8.03 unless the Beneficiary elects to defer receipt of the benefit
pursuant to Section 8.04 below.
8.03 Timing of Payment.
Subject to Section 8.04, benefit payments under this Section 8.03
shall be made as soon as practicable, but in no event later than the
60th day following the last day of the Plan Year in which the latest
of the following events occurs:
(a) the Participant's sixty-fifth (65th) birthday;
(b) the Participant's date of termination; or
(c) the tenth anniversary of the Participant's commencement of
participation.
8.04 Deferral of Payment.
Notwithstanding the provisions of this Article VIII (other than
Section 8.07), if a Participant's Account balance exceeds $3,500 or
has ever exceeded $3,500 at the time of a prior distribution, it shall
not be immediately distributable without such Participant's consent
before the Participant has reached his Normal Retirement Age.
In the event of deferral of payment under this Section 8.04, the
unpaid portion of the Participant's Accounts in the applicable funds
shall be credited or debited with gains, losses or income of such
funds as provided in Section 5.02.
8.05 Forms, Manner and Medium of Payment.
Each Participant who separates from service with the Affiliated
Employer because of death, retirement at or after the attainment of
Normal Retirement Age or otherwise, or incurs a Disability may elect
(or in the event of the Participant's death, the Participant's
Beneficiary may elect) to receive his benefits as either:
(a) a lump sum; or
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<PAGE>
(b) a series of substantially equal annual installments.
A Participant (or Beneficiary) who elects a series of installments may
at any time elect to receive the balance of his benefits in a lump
sum.
All benefits hereunder shall be payable in cash, except that any
portion of a Participant's benefit which is invested in shares of
qualifying employer securities in the qualifying employer securities
separate investment Fund D hereunder (other than fractional shares)
shall be paid in such shares, provided, however, that the Participant
or Beneficiary may request the Trustee to liquidate such shares at the
Participant's or Beneficiary's expense and pay the cash proceeds
instead.
8.06 Designation of Beneficiary.
Each Participant shall have the right to designate one or more
Beneficiaries and contingent Beneficiaries to receive any benefit to
which such Participant may be entitled hereunder in the event of his
death prior to the complete distribution of such benefit, by filing a
written designation with the Plan Administrator on a form prescribed
by the Plan Administrator. However, if a Participant is married and
has not designated his or her spouse as his sole primary Beneficiary,
the spouse must consent to and acknowledge the effect of the
designation in writing, unless the spouse cannot be located or in such
other circumstances as permitted by regulation. The spouse's consent
must be witnessed by a notary public or Plan representative. Such
Participant may thereafter change such designation at any time and for
any number of times, with the consent of his or her spouse, if
married, by filing a new designation with the Plan Administrator. A
Beneficiary designation shall become effective only upon its receipt
by the Plan Administrator.
If a Participant fails to designate a Beneficiary pursuant to this
Section 8.06, or if no Beneficiary survives the Participant, payment
shall be made to the persons listed in the first of the following
categories which contains one or more persons surviving the
Participant: (i) his spouse; (ii) natural and adopted children and
survivors of them, in equal shares; (iii) parents and survivors of
them, in equal shares; or (iv) executor or administrator.
8.07 Required Distributions.
Notwithstanding any provision in the Plan to the contrary, the
distribution of a Participant's benefits whether under the Plan or
through the purchase of an annuity contract, shall be made in
accordance with the following requirements and shall otherwise comply
with Code section 401(a)(9) and the regulations thereunder (including
Treasury Regulation section 1.401(a)(9)-2), the provisions of which
are incorporated herein by reference:
(a) A Participant's benefits shall be distributed to him no later
than April 1st of the calendar year following the calendar year
in which the Participant attains age 70- 1/2, provided, however,
that such date shall instead be the April 1st of the calendar
year following the later of the calendar year of his retirement
or attainment of age
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70-1/2 if he attained age 70-1/2 before January 1, 1988, and was
not a 5% owner (determined under Code section 416, but without
regard to whether the Plan is top- heavy). Alternatively,
distributions to a Participant must begin no later than the
applicable April 1st as determined under the preceding sentence
and must be made over the life of the Participant (or the lives
of the Participant and the Participant's designated Beneficiary)
or a period certain measured by the life expectancy of the
Participant (or the joint and last survivor life expectancy of
the Participant and his designated Beneficiary) in accordance
with applicable regulations.
(b) If the distribution of a Participant's interest has begun in
accordance with the method selected in Section 8.05 and the
Participant dies before his entire interest has been distributed
to him, the remaining portion of such interest shall be
distributed at least as rapidly as under the method of
distribution selected pursuant to Section 8.05 as of his date of
death.
(c) If a Participant dies before he has begun to receive any
distribution of his interest under the Plan, his death benefit
shall be distributed to his Beneficiaries by December 31st of the
calendar year in which the fifth anniversary of his date of death
occurs. It shall be paid to the Participant's Beneficiary by
either of the following methods, as elected by the Participant
(or if no election has been made prior to the Participant's
death, by his Beneficiary), subject to the rules specified below
in this Section 8.07:
(i) One lump-sum payment in cash;
(ii)Payment in monthly, quarterly, semi-annual, or annual cash
installments over a period to be determined by the
Participant or his Beneficiary. After periodic installments
commence, the Beneficiary shall have the right to direct the
Trustee to reduce the period over which such periodic
installments shall be made, and the Trustee shall adjust the
cash amount of such periodic installments accordingly.
(d) The five-year distribution requirements of subsection (c) above
shall not apply to any portion of the deceased Participant's
interest which is payable to or for the benefit of a designated
Beneficiary. In such event, such portion may at the election of
the Participant (or the Participant's designated Beneficiary) be
distributed over the life of such designated Beneficiary (or over
a period not extending beyond the life expectancy of such
designated Beneficiary) provided such distribution begins not
later than December 31st of the calendar year immediately
following the calendar year in which the Participant died.
However, in the event the Participant's spouse (determined as of
the date of the Participant's death) is his Beneficiary, the
requirement that the distributions commence within one year of a
Participant's death shall not apply. In lieu thereof,
distributions must commence on or before the later of: (1)
December 31st of the calendar year immediately following the
calendar year in which the Participant died; or (2) December 31st
of the calendar year in which the Participant would have attained
age 70-1/2. If the surviving spouse dies before the distributions
to such
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spouse begin, then the five-year distribution requirement of
subsection (c) above shall apply as if the spouse were the
Participant.
(e) For purposes of this Section 8.07, the election by a designated
Beneficiary to be excepted from the five-year distribution
requirement must be made no later than December 31st of the
calendar year following the calendar year of the Participant's
death. Except, however, with respect to a designated Beneficiary
who is the Participant's surviving spouse, the election must be
made by the earlier of: (1) December 31st of the calendar year
immediately following the calendar year in which the Participant
died or, if later, the calendar year in which the Participant
would have attained age 70-1/2; or (2) December 31st of the
calendar year which contains the fifth anniversary of the date of
the Participant's death. An election by a designated Beneficiary
must be in writing and shall be irrevocable as of the last day of
the election period stated herein. In the absence of an election
by the Participant or a designated Beneficiary, the five-year
distribution requirement shall apply.
(f) For purposes of this Section 8.07, the life expectancy of a
Participant and a Participant's spouse may, at the election of
the Participant or the Participant's spouse, be redetermined
annually in accordance with treasury regulations. The election,
once made, shall be irrevocable. If no election is made by the
time distributions must commence, then the life expectancy of the
Participant and the Participant's spouse shall not be subject to
recalculation. Life expectancy and joint and last survivor
expectancy shall be computed using the return multiples in Tables
V and VI of Treasury Regulation Section ss. 1.72-9.
(g) The Plan Administrator may direct the Trustee to segregate into a
separate savings account the amount of payment owed to a
Participant or Beneficiary whom it is unable to locate.
8.08 Payments to Alternate Payees.
Notwithstanding any other provision of the Plan, the Plan
Administrator may authorize payment to an alternate payee in
accordance with the terms of a qualified domestic relations order in
any form available to Participants or Beneficiaries under this Article
VIII, and such payment may be made before the Participant to whom the
qualified domestic relations order applies has separated from service
or reached the earliest retirement age, within the meaning of section
414(p) of the Code.
8.09 Direct Rollovers.
(a) Notwithstanding any other provision of the Plan to the contrary
that would otherwise limit a Distributee's election under this
Section 8.09, with respect to any distribution made on or after
January 1, 1993, a Distributee of a benefit under the Plan may
elect, at the time and in the manner prescribed by the Plan
Administrator, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee, in a Direct Rollover.
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(b) Definitions. For the purposes of this Section 8.09, the following
words and phrases when used herein shall have the following
meanings and shall be in addition to any other words and phrases
defined elsewhere in the Plan:
(1) Eligible Rollover Distribution. An "Eligible Rollover
Distribution" is any distribution of all or any portion of
the balance to the credit of the Distributee, except: 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 and the
Distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the extent
it is required under section 401(a)(9) of the Code; and the
portion of any distribution that is not includible in the
Distributee's 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; except that in
the case of an Eligible Rollover Distribution to the
surviving spouse of a Participant, an Eligible Retirement
Plan is only an individual retirement account or individual
retirement annuity.
(3) Distributee. A "Distributee" is an Employee or former
Employee for whose Account an amount remains in the Trust
Fund, a Beneficiary who is the surviving spouse of a former
Participant, or an alternate payee who is the spouse or
former spouse of an Employee or former Employee.
(4) Direct Rollover. A "Direct Rollover" is a payment by the
Plan to the Eligible Retirement Plan specified by the
Distributee.
(c) The provisions of this Section 8.09 shall be administered in
accordance with the terms of a "Direct Rollover Program," not
inconsistent with this Section 8.09 or with any provision of
section 401(a)(31) or 402 of the Code, which is adopted and
amended from time to time by the Plan Administrator, and which is
incorporated herein by this reference.
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ARTICLE IX
EMPLOYEE LOANS
9.01 Eligibility for Loans.
Each Participant shall be eligible to apply for a loan from the net
vested value of his Account in the Plan, excluding, however, any
portion thereof derived from Employee Contributions. For purposes of
this Section 9.01, the term "Participant" includes Employees with an
Account balance and former such Employees who are parties in interest
as defined at Section 3(14) of ERISA.
9.02 Limitations, Terms and Conditions for Loans.
Subject to the following provisions hereof, a Participant may borrow
from the net vested value of his Account an amount as of any Valuation
Date which, when aggregated with all of his outstanding loans under
the Plan, is not in excess of one-half of his vested Account as of the
date on which the loan is approved, and in no event greater than
$50,000 less his highest outstanding loan balance for the prior
12-month period. In addition to such rules and regulations as the Plan
Administrator may, from time to time, adopt in writing and which are
hereby incorporated herein by reference, all loans shall comply with
the following terms and conditions:
(a) An application for a loan shall be made in writing to the Plan
Administrator.
(b) Each loan shall be for a minimum of $1,000.
(c) Only one loan may be outstanding at any time, and no more than
one loan may be granted in any 12-month period.
(d) The period of repayment for any loan shall in no event exceed
five (5) years. Repayment of principal and interest shall be made
in substantially equal installments, not less frequently than
quarterly, on a payroll deduction basis in the case of active
Participants and by remittance of a check directly to the Plan
Administrator in the case of Participants on a leave of absence.
(e) Each loan shall be made against collateral being the assignment
of the borrower's entire right, title and interest in and to the
Trust Funds representing 50% of the total vested Account of that
borrower, supported by the borrower's collateral promissory note
for the amount of the loan, including interest, payable to the
order of the Trustee.
(f) Each loan shall bear interest at a rate to be fixed by the Plan
Administrator and, in determining the interest rate, the Plan
Administrator shall take into consideration interest rates
currently being charged by persons in the business of lending
money under similar circumstances. The Plan Administrator shall
not discriminate among Participants in the matter of interest
rate but loans granted at different times may bear different
interest rates if, in the opinion of the Plan Administrator, the
difference in rates is justified by a change in general economic
conditions or the practices of commercial lenders.
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(g) While any loan amount remains outstanding, no distribution shall
be made from the Participant's Account with respect to the
portion of the Account balance representing the value of the loan
as an asset of the Account. If a Participant does not repay his
loan according to the terms agreed upon by the Participant and
Plan Administrator, the Plan Administrator may, upon termination
of his employment, reduce the balance of the Participant's
Accounts in the Plan by the outstanding loan amount and any
interest then due, or, alternatively, exercise such rights or
remedies as it may have as a creditor of the Participant. Any
expenses incurred by the Plan Administrator in exercising such
rights or remedies shall be chargeable to the Participant's
Account to the fullest extent permitted by law.
9.03 Separate Loan Accounts.
If a Participant has a loan in accordance with this Article IX, a
separate loan account shall be established as part of his Account
under the Plan. Interest and principal repayments under the terms of
the loan shall be credited to the Participant's Account, and a
delinquency or default in repayment of the loan shall not affect the
balance of any Account other than the Participant's. All repayments
and interest shall be invested in accordance with the Participant's
current loan investment elections in force at the time of the
repayment.
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ARTICLE X
TOP-HEAVY PROVISIONS
The following definitions apply for purposes of this Article X:
10.01 Aggregation Group.
"Aggregation Group" means a group of retirement plans, either a
"Required Aggregation Group" or a "Permissive Aggregation Group," as
hereinafter determined.
(i) Required Aggregation Group. In determining a Required Aggregation
Group hereunder, each retirement plan of the Employer or an
Affiliated Employer qualified under section 401(a) of the Code,
in which a Key Employee is a participant, and each such other
plan (including terminated plans or Keogh plans, if any) of the
Employer or an Affiliated Employer which enables any plan in
which a Key Employee within the meaning of section 416(i) of the
Code participates to meet the requirements of sections 401(a)(4)
or 410 of the Code, will be required to be aggregated. Such group
shall be known as a "Required Aggregation Group."
In the case of a Required Aggregation Group, each plan in the
group will be considered a Top-Heavy Plan if the Required
Aggregation Group is a Top-Heavy Group. No plan in the Required
Aggregation Group will be considered a Top- Heavy Plan if the
Required Aggregation Group is not a Top-Heavy Group.
(ii)Permissive Aggregation Group. The Employer also may include any
other plan not required to be included in the Required
Aggregation Group, provided the resulting group, taken as a
whole, would continue to satisfy the provisions of sections
401(a)(4) and 410 of the Code. Such group shall be known as a
"Permissive Aggregation Group."
In the case of a Permissive Aggregation Group, only a plan that
is part of the Required Aggregation Group will be considered a
Top-Heavy Plan if the Permissive Aggregation Group is a Top-Heavy
Group. No plan in the Permissive Aggregation Group will be
considered a Top-Heavy Plan if the Permissive Aggregation Group
is not a Top-Heavy Group.
10.02 Determination Date.
"Determination Date" means the last day of the preceding Plan Year,
except for the initial Plan Year, in which case Determination Date
means the last day of such Plan Year.
10.03 Top Heavy Plan.
(a) The Plan shall be a "Top Heavy Plan" for any Plan Year in which,
as of the Determination Date, (1) the Present Value of Accrued
Benefits of Key Employees and (2) the sum of the aggregate
Accounts of Key Employees under the Plan and all
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plans of an Aggregation Group, exceeds sixty percent (60%) of the
Present Value of Accrued Benefits and the aggregate Accounts of
all Key and Non-Key Employees under the Plan and all other plans
of an Aggregation Group. The Present Value of Accrued Benefits
and/or the sum of the aggregate Accounts, for this purpose, shall
include distributions made within the Plan Year that includes the
Determination Date and the four preceding Plan Years.
If any Participant is a Non-Key Employee for any Plan Year, but
such Participant was a Key Employee for any prior Plan Year, such
Participant's Present Value of Accrued Benefit and/or aggregate
Account balance shall not be taken into account for purposes of
determining whether the Plan is a Top Heavy Plan (or whether any
Aggregation Group which includes the Plan is a Top Heavy Group).
In addition, if a Participant or Former Participant has not
performed any services for any Employer maintaining the Plan at
any time during the five-year period ending on the Determination
Date, the Present Value of Accrued Benefit and/or the aggregate
Account of such Participant or Former Participant shall not be
taken into account for the purposes of determining whether the
Plan is Top Heavy.
(b) In the case of a defined benefit plan, the "Present Value of
Accrued Benefit" for a Participant other than a Key Employee,
shall be as determined using the single accrual method used for
all plans of the Employer and Affiliated Employers, or if no such
method exists, using a method which results in benefits accruing
not more rapidly than the slowest accrual rate permitted under
section 411(b)(1)(C) of the Code. The determination of the
Present Value of Accrued Benefit shall be determined as of the
most recent valuation date that falls within or ends with the 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 defined benefit plan.
10.04 Minimum Allocation.
Notwithstanding the provisions of Article III, for any Plan Year
during which the Plan is deemed a Top-Heavy Plan, the sum of Employer
contributions and forfeitures allocated to the Account of each non-Key
Employee shall be equal to at least three (3%) of such non-Key
Employee's "compensation." Moreover, if the non-Key Employee is also a
participant in any other defined contribution plan of an Affiliated
Employer, the minimum allocation set forth in this Section 10.04 shall
be reduced by any allocations under such other plan with respect to
the non-Key Employee. However, should the sum of the Employer
contributions and forfeitures allocated to the Account of each Key
Employee for such Top-Heavy Plan Year be less than three percent (3%)
of each Key Employee's Compensation, the sum of the Employer
contributions allocated to the Account of each Non-Key Employee shall
be equal to the largest percentage allocated to the Account of each
Key Employee. For purposes of the minimum allocations: (i)
Compensation shall be defined as it is in Treas. Reg. ss. 1.415-2(d);
and (ii) the percentage allocated to the Account of any Key Employee
shall be equal to the ratio of the sum of the contribution allocated
on behalf of such Key Employee divided by the Compensation for such
Key Employee.
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If a non-Key Employee is a member of both a defined contribution plan
and a defined benefit plan that are both part of a Top-Heavy Group,
then the three percent (3%) minimum allocation percentage in the
preceding paragraph shall instead be (i) zero percent (0%) if such
non-Key Employee is entitled to a minimum top-heavy benefit under Code
section 416 under the defined benefit plan without reference to the
Plan (that is, at least two percent (2%) times average compensation
times years of service up to a maximum of 10 years), or (ii) five
percent (5%) in any other case.
If a Key Employee is a member in both a defined contribution plan and
a defined benefit plan that are both part of a Top-Heavy Group (but
neither of such plans is a Super Top- Heavy Plan as described in
section 416(h)(2)(B) of the Code), the defined contribution and the
defined benefit fractions incorporated by reference into the Plan by
Section 3.07 shall remain unchanged, provided the Account of each
Non-Key Employee receives an extra allocation (in addition to the
minimum allocation set forth above) equal to not less than four and
one-half percent (4-1/2 %) of such Non-Key Employee's Compensation.
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ARTICLE XI
TRUST ADMINISTRATION
11.01 Trust Agreement.
The Employer has entered into a Trust Agreement with a Trustee for the
purpose of holding the Fund. The Trust Agreement shall provide, among
other things, that all funds received by the Trustee thereunder shall
be held, administered, invested (in its discretion or as directed by
an investment advisor designated by the Plan Administrator) subject to
Article IV and distributed by the Trustee, and that no part of the
corpus or income of the Fund held by the Trustee shall be used for, or
diverted to, purposes other than for the exclusive benefit of
Participants or their Beneficiaries except as permitted under Sections
3.08 and 11.04. The Employer shall have the authority to remove such
Trustee or any successor Trustee in writing to this effect. Any
Trustee or any successor Trustee may resign and in this event the
Trustee or successor Trustee shall notify the Employer in writing to
this effect. Upon removal or resignation of a Trustee, the Employer
shall appoint a successor Trustee.
The Employer shall have authority to direct that there shall be more
than one Trustee under the Trust Agreement and to determine the
portion of the assets under the Trust Agreement to be held by each
such Trustee. If such a direction is given, the Employer shall
designate the additional Trustee or Trustees and each Trustee shall
hold and invest and keep records with respect to the portion of such
assets held by it.
The Plan Administrator shall also have the authority to direct that
any portion of the assets shall be invested as directed by an
investment manager (as defined in Section 3(38) of ERISA) designated
by the Plan Administrator.
11.02 Trustee's Right to Retain Cash.
The Trustee may keep uninvested an amount of cash sufficient in its
opinion to enable it to carry out the purposes of the Plan.
11.03 Selection of Accountants, Etc.
The Employer may select a firm of independent pubic accountants to
examine and report on the financial position and the results of
operations of the Fund created under the Plan, at such times as it
deems it proper and/or necessary.
11.04 Trust Expenses, Etc.
The Trustee without written directions may pay from the Fund all
expenses incurred in the administration thereof, including, but
without being limited to, all brokerage fees, taxes of any nature
which may be imposed upon the Fund or upon any asset included therein
or required to pay with respect to the interest of any person therein,
all handling expenses, and the reasonable fees and expenses of legal
counsel, accountants and other agents employed by the Trustee. All
disbursements shall be made out of the Fund only
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to the extent that it is sufficient therefor. The Employer, in its
sole discretion, may reimburse the Fund for expenses charged against
it by the Trustee.
11.05 Trust Agreement Part of Plan.
Any Trust Agreement(s) entered into pursuant to this Article XI shall
form a part of the Plan.
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ARTICLE XII
ADMINISTRATION OF THE PLAN
12.01 Appointment of Administrator.
The Employer may appoint one or more individuals, firms, corporations
or other entities to be the Plan Administrator. The Employer may, at
any time and from time to time, remove such persons as Plan
Administrator, with or without cause. If the Employer determines that
the Plan Administrator shall be a committee of individuals, it shall
appoint a committee (the "Committee") to consist of two (2) or more
persons who may, but need not be, Employees, and who may be Trustees.
A member of the Committee may be removed by the Employer at any time
with or without cause. Vacancies in the Committee may be filled by the
Employer. The Plan Administrator or a member of the Committee may
resign at any time by filing a written notice of the resignation with
the Employer. Each member of the Committee shall serve until such time
as he dies, resigns, or is removed by the Employer. In the absence of
any action by the Employer to appoint a Plan Administrator, the
Employer shall be the Plan Administrator.
12.02 Authority to Delegate.
The Plan Administrator may delegate to any person or entity any of its
powers or duties under the Plan.
12.03 Authority to Establish Rules, Etc.
The Plan Administrator shall, from time to time, establish rules for
the administration of the Plan and the transaction of its business.
Except as herein otherwise expressly provided, the Plan Administrator
shall have the exclusive right to interpret the Plan and to decide any
matters arising thereunder in connection with the administration of
the Plan. It shall endeavor to act by general rules so as not to
discriminate in favor of or against any person. The decisions and the
records of the Plan Administrator shall be conclusive and binding upon
the Employer, Participants, and all other persons having any interest
under the Plan.
12.04 Instructions, Decisions, Compensation, Etc.
Instructions of the Plan Administrator to the Trustee shall be in
writing. All decisions and determinations of the Plan Administrator
shall be recorded, and all such records, together with such other
documents as are required for the administration of the Plan, shall be
preserved. The Plan Administrator shall serve without compensation
from the Fund. The delegates of the Plan Administrator shall be
entitled to reimbursement for reasonable and proper expenses incurred
in the performance of their duties to be paid by the Plan
Administrator.
12.05 Maintenance of Accounts, Etc.
The Plan Administrator shall maintain accounts showing the fiscal
transactions of the Plan, and shall keep in convenient form such data
as may be necessary for valuations of
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the assets and liabilities of the Plan and giving an account of the
operation of the Plan for the past year. Such valuations shall be
performed as of each Valuation Date, determining the current value of
the assets. Such report shall be submitted to the Employer.
12.06 Responsibility of Delegates.
To the extent that the Employer or the Plan Administrator delegates to
any person or entity any of its power or duties under the Plan, that
delegate shall become responsible for administrative duties so
delegated and references to the Employer or the Plan Administrator
shall apply instead to the delegate.
12.07 Claims Procedure.
A Participant's initial claim for benefits must be made in writing to
the Plan Administrator. In the event that any claim for benefits is
denied in whole or in part, the Participant or Beneficiary whose claim
for benefits has been so denied shall be notified of such denial in
writing by the Plan Administrator within 90 days of receipt of the
claim. The notice advising of the denial shall specify the reason or
reasons for denial, make specific reference to pertinent Plan
provisions, describe any additional material or information necessary
for the claimant to perfect the claim (explaining why such material or
information is needed), and shall advise the Participant or
Beneficiary, as the case may be, of the procedure for the appeal of
such denial. All appeals shall be made by the following procedure:
(a) The Participant or Beneficiary whose claim has been denied shall
file with the Plan Administrator a notice of desire to appeal the
denial. Such notice shall be filed within sixty (60) days of
notification by the Plan Administrator of claim denial, shall be
made in writing, and shall set forth all of the facts upon which
the appeal is based. The Plan Administrator shall not consider
any appeal that is not timely filed.
(b) Within sixty (60) days of receipt of the appeal, the Plan
Administrator shall make a determination as to the merits of the
appeal and notify the claimant.
(c) If necessary due to special circumstances, the ninety (90) day
period for initial determination of a claim and sixty (60) day
period for notification of the determination of an appeal may be
extended to 120 days.
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ARTICLE XIII
AMENDMENT AND TERMINATION
13.01 Amendment.
The provisions of the Plan may be amended by the Employer from time to
time and at any time in whole or in part, provided that no amendment
shall be effective unless the Plan as so amended shall be for the
exclusive benefit of the Participants and their Beneficiaries, and
that no amendment shall operate to deprive any Participant of any
rights or benefits fully vested in him under the Plan prior to such
amendment.
13.02 Termination.
While it is the Employer's intention to continue the Plan indefinitely
in operation the right is, nevertheless, expressly reserved to
terminate the Plan in whole or in part at any time. Any such
termination shall be effected only upon conditions that such action is
taken under the Trust Agreement as shall render it impossible for any
part of the corpus of the Fund or the income thereof to be used for,
or diverted to, purposes other than for the exclusive benefit of the
Participants and their Beneficiaries except to the extent permitted in
Section 3.08.
13.03 Procedure Upon Termination.
If the Plan is to be terminated at any time the Employer shall give
written notice to the Trustee. The Trustee shall thereupon revalue the
assets of the Fund and the individual Accounts of the Participants as
of the date of termination, partial termination, or discontinuance of
contributions, and, after discharging and satisfying any obligations
of the Plan, shall allocate all unallocated assets to the Accounts of
the Participants at the date of termination. Upon termination of the
Plan or complete discontinuance of contributions, all individual
Participant Accounts shall be fully vested and shall not thereafter be
subject to forfeiture in whole or in part. Upon a partial termination
of the Plan, the provisions of the preceding sentence shall apply to
the Accounts of Participants as to whom the partial termination
applies. The Plan Administrator, in its sole discretion, shall
instruct the Trustee either (1) to pay over to each affected
Participant, in accordance with Article VIII, the net value of his
Account or (2) to continue to manage and administer the assets of the
Trust for the benefit of the Participants to whom distributions will
be made in later periods in the manner provided in Article VIII.
13.04 Merger.
No merger or consolidation with, or transfer of any of the Plan's
assets or liabilities to any other plan shall occur at any time unless
each Participant would (if the Plan had then terminated) receive a
benefit greater than the benefit the Participant would have been
entitled to receive immediately before the merger, consolidation or
transfer (if the Plan had then terminated).
With respect to the contemplated merger, effective as of January 1,
1994, of the Fitchburg Gas and Electric Light Company Union Tax
Deferred Savings and Investment
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Plan ("Fitchburg Union Plan") with the Plan, and subject to the
foregoing paragraph and to the favorable determination by the Internal
Revenue Service as to the qualification of the amendment and
restatement of the Plan generally effective as of January 1, 1989, and
the trust hereunder, and if necessary or desirable, the expiration
without disapproval of the appropriate time period after proper prior
notice is given to the Internal Revenue Service of the proposed
transfer of assets provided for by the following provisions of this
Section 13.04, the Trustee hereunder shall receive all assets of the
Fitchburg Union Plan, which assets shall be transferred to it by the
trustee under the Fitchburg Union Plan, to be held under the Plan in
separate predecessor plan accounts for the respective former Fitchburg
Union Plan participants.
Similarly, any other assets being held in predecessor plan accounts
under the Plan prior to its amendment and restatement generally
effective as of January 1, 1989, shall continue to be held hereunder
in such accounts.
13.05 Retroactive Amendments.
Notwithstanding the provisions of Section 13.01 or of any other
provisions hereof, any modifications or amendment of the Plan may be
made, retroactively, if necessary, which the Employer deems necessary
or appropriate to conform the Plan to, or to satisfy the conditions
or, any law, governmental regulation or ruling, or to permit the Plan
or the Trust to meet the requirements of the Internal Revenue Code, or
of any subsequent federal revenue law.
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ARTICLE XIV
MISCELLANEOUS
14.01 Mergers, Etc. with Employer.
If any persons become employees of the Employer as the result of
merger or consolidation or as the result of acquisition of all or part
of the assets or business of another corporation, the Employer shall
determine to what extent, if any, previous service with such
corporation shall be recognized as service for purposes of eligibility
in the Plan, but subject to the continued qualification of the Plan
and Trust as tax exempt under the Code. Any corporation may terminate
its participation in the Plan upon appropriate action by it if such
corporation ceases to be an Affiliated Employer, in which event the
funds of the Plan held on account of Participants in the employ of
such corporation and any unpaid balances of the Accounts of
Participants who have separated from the employ of such corporation
shall be distributed as provided in Section 13.03 in the event of
termination of the Plan.
14.02 Non-Alienation of Benefits.
None of the payments, benefits or rights of any Participant shall be
subject to any claim of any creditor of such Participant and, in
particular, shall be free from attachment, garnishment, trustee's
process, or any other legal or equitable process available to any
creditor of such Participant. No Participant shall have the right to
alienate, commute, pledge, encumber or assign any of the benefits or
payments which he may expect to receive, contingently or otherwise,
under the Plan, except the right to designate a Beneficiary or
Beneficiaries as herein before provided and the right to assign up to
50% of the vested balance of his Account as collateral security for a
loan to him pursuant to Article IX.
The preceding paragraph also shall apply to the creation, assignment
or recognition of a right to any benefit payable with respect to a
Participant pursuant to a domestic relations order, unless such order
is a qualified domestic relations order as defined in section 414(p)
of the Code.
14.03 Participant and Employee Rights.
Neither the establishment of the Plan, nor any modification thereof,
nor the creation of the Fund, Trust or Account, nor the payment of any
benefits shall be construed as giving any Participant or Employee of
the Employer or any person whomsoever, any legal or equitable right
against the Employer, the Trustee, or the Plan Administrator, unless
such right shall be specifically provided for in the Trust or the Plan
or conferred by affirmative action of the Plan Administrator or in
accordance with the terms and provisions of the Plan; or as giving any
Participant or Employee of the Employer the right to be retained in
the service of the Employer and all Participants and other Employees
shall remain subject to discharge to the same extent as if the Plan
had never been adopted.
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14.04 Incapacity of Payee.
If the Plan Administrator deems any person incapable of receiving
benefits to which the Participant is entitled by reason of minority,
illness, infirmity or other incapacity, it may direct the Trustee to
make payment directly for the benefit of such person or to any person
selected by the Plan Administrator to disburse it, whose receipt shall
be complete acquittance thereof. Such payments shall, to the extent
thereof, discharge all liability of the Employer, the Plan
Administrator, the Trustee and the Fund.
14.05 Actions by the Employer.
Notwithstanding anything herein to the contrary, any of the actions
the Employer takes in accordance with Articles XI through XIII shall
be taken by majority vote of each Board of Directors, provided,
however, that any particular Employer that has adopted the Plan may
withdraw from further participation at any time with respect to some
or all of its Employees by action of its Board of Directors without
the approval of any other Board of Directors.
14.06 Governing Law.
Except as provided differently by federal law, the Plan shall be
construed under the laws of the state of New Hampshire.
14.07 Titles, Etc.
The titles of Articles are included for convenience only and if there
shall be any conflict between the titles and the text of the Plan, the
text shall control.
IN WITNESS WHEREOF, the Employer has caused this instrument to be executed
by its duly authorized representative this 23rd day of December,1994.
(CORPORATE SEAL) UNITIL CORPORATION
Attest: /s/ Gail A. Siart By: /s/ Michael J. Dalton
----------------- ---------------------
Its Secretary Its President
(CORPORATE SEAL) UNITIL SERVICE CORP.
Attest: /s/ Gail A. Siart By: /s/ Peter J. Stulgis
----------------- --------------------
Its Secretary Its President
(CORPORATE SEAL) CONCORD ELECTRIC COMPANY
Attest: /s/ Sandra L. Walker By: /s/ Michael J. Dalton
-------------------- ---------------------
Its Secretary Its President
42
<PAGE>
(CORPORATE SEAL) EXETER & HAMPTON ELECTRIC
COMPANY
Attest: /s/ Sandra L. Walker By: /s/ Michael J. Dalton
-------------------- ---------------------
Its Secretary Its President
(CORPORATE SEAL) FITCHBURG GAS AND ELECTRIC
LIGHT COMPANY
Attest: /s/ Thomas J. Conry, Jr. By: /s/ Michael J. Dalton
------------------------ ---------------------
Its Clerk Its President
43
