Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
JOHNSON WORLDWIDE ASSOCIATES, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 39-1536083
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1326 Willow Road 53177
Sturtevant, Wisconsin (Zip Code)
(Address of principal executive
offices)
Johnson Worldwide Associates Retirement and Savings Plan
(Full title of the plan)
John D. Crabb Copy to:
President and Chief Executive Officer
Johnson Worldwide Associates, Inc. Benjamin F. Garmer, III
1326 Willow Road Foley & Lardner
Sturtevant, Wisconsin 53177 777 East Wisconsin Avenue
(Name, address and telephone number, Milwaukee, Wisconsin 53202
including area code, of agent for
service)
__________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities to Amount Offering Aggregate Amount of
be to be Price Offering Registration
Registered Registered Per Share Price Fee
Class A
Common Stock, 10,000 $24.125(1) $241,250(1) $100.00
$.05 par value shares
(1) Estimated pursuant to Rule 457(c) under the Securities Act of 1933
solely for the purpose of calculating the registration fee based on
the average of the high and low prices of the Class A Common Stock as
reported by the Nasdaq National Market on July 21, 1995.
_________________________________
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by Johnson
Worldwide Associates, Inc. (the "Company") or the Johnson Worldwide
Associates Retirement and Savings Plan (the "Plan") with the Commission
and are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
September 30, 1994, which includes certified financial statements as of
and for the year ended September 30, 1994.
(b) The Plan's Annual Report on Form 11-K for the year ended
September 30, 1994.
(c) All other reports filed by the Company or the Plan pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since September 30, 1994.
(d) The description of the Company's capital stock contained in
Item 1 of the Company's Registration Statement on Form 8-A, filed
September 25, 1987 with the Securities and Exchange Commission, and any
amendments or reports filed for the purpose of updating such description.
All documents subsequently filed by the Company or the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after
the date of filing of this Registration Statement and prior to such time
as the Company files a post-effective amendment to this Registration
Statement which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and
to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and the
Company's By-laws, directors and officers of the Company are entitled to
mandatory indemnification from the Company against certain liabilities and
expenses (i) to the extent such officers or directors are successful in
the defense of a proceeding and (ii) in proceedings in which the director
or officer is not successful in defense thereof, unless it is determined
that the director or officer breached or failed to perform his duties to
the Company and such breach or failure constituted: (a) a willful failure
to deal fairly with the Company or its shareholders in connection with a
matter in which the director or officer had a material conflict of
interest; (b) a violation of the criminal law unless the director or
officer had reasonable cause to believe his or her conduct was lawful or
had no reasonable cause to believe his or her conduct was unlawful; (c) a
transaction from which the director or officer derived an improper
personal profit; or (d) willful misconduct. It should be noted that the
Wisconsin Business Corporation Law specifically states that it is the
public policy of Wisconsin to require or permit indemnification in
connection with a proceeding involving securities regulation, as described
therein, to the extent required or permitted as described above.
Additionally, under the Wisconsin Business Corporation Law, directors of
the Company are not subject to personal liability to the Company, its
shareholders or any person asserting rights on behalf thereof for certain
breaches or failures to perform any duty resulting solely from their
status as directors except in circumstances paralleling those in
subparagraphs (a) through (d) outlined above.
The indemnification provided by the Wisconsin Business
Corporation Law and the Company's By-laws is not exclusive of any other
rights to which a director or officer may be entitled.
In 1987, the Company entered into individual indemnity
agreements with certain of its directors and officers. Such agreements
generally expand the indemnification rights of such directors and officers
beyond the current provisions of the Wisconsin Business Corporation Law
and Article Ten of the Company's By-Laws. Generally, the agreements state
that the director or officer who is a party thereto shall be indemnified
against expenses, amounts paid in settlement and judgments, fines,
penalties and/or other amounts incurred with respect to any threatened,
pending or completed proceeding (including, without limitation,
proceedings brought under and/or predicated upon the Securities Act of
1933 and/or the Securities Exchange Act of 1934); provided that such
indemnification is not available with respect to (i) acts or omissions to
act of such director or officer finally adjudicated to have been in bad
faith or to involve intentional misconduct or knowing violation of law;
(ii) the recovery of remuneration paid to or other personal benefits
received by such director or officer from the Company or its affiliates,
the receipt of which shall be finally adjudicated to have been in
violation of applicable law; or (iii) the recovery of profits pursuant to
Section 16(b) of the Securities Exchange Act of 1934 made by such officer
or director from a purchase and sale of securities of the Company. In
addition, the Company is not liable for indemnification of settlement
amounts unless it has consented in writing to such settlement.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Company under certain
circumstances.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
(4) Johnson Worldwide Associates Retirement and Savings
Plan
(5) Opinion of Foley & Lardner
(23.1) Consent of KPMG Peat Marwick LLP
(23.2) Consent of Foley & Lardner (contained in Exhibit 5
hereto)
(24) Power of Attorney relating to subsequent amendments
(included on the signature page to this
Registration Statement)
The Registrant hereby undertakes to submit the Plan and any
amendment thereto to the Internal Revenue Service ("IRS") in a timely
manner and has made or will make all changes required by the IRS in order
to qualify the Plan under Section 401 of the Internal Revenue Code.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement to
include any material information with respect to the plan of distribution
not previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Sturtevant, and
State of Wisconsin, on this 30th day of June, 1995.
JOHNSON WORLDWIDE ASSOCIATES,
INC.
By: /s/ John D. Crabb
John D. Crabb
President and Chief Executive
Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated. Each person whose signature
appears below constitutes and appoints John D. Crabb, Robert L. Inslee and
Carl G. Schmidt, and each of them individually, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and
revocation, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-
in-fact and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, may lawfully do or cause
to be done by virtue hereof.
Signature Title Date
/s/ John D. Crabb President, Chief Executive June 30, 1995
John D. Crabb Officer and Director
(Principal Executive Officer)
/s/ Carl G. Schmidt Senior Vice President, Chief June 30, 1995
Carl G. Schmidt Financial Officer, Secretary
and Treasurer (Chief Financial
Officer and Principal
Accounting Officer)
/s/ Samuel C. Johnson Director June 30, 1995
Samuel C. Johnson
/s/ Raymond F. Farley Director June 30, 1995
Raymond F. Farley
___________________ Director June __, 1995
Thomas F. Pyle, Jr.
____________________ Director June __, 1995
Donald W. Brinckman
/s/ Helen P. Johnson- Director June 30, 1995
Leipold
Helen P. Johnson-
Leipold
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of
1933, the members of the Johnson Worldwide Associates Retirement and
Savings Plan Administrative Committee, who administer the Plan, have duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Sturtevant, and
State of Wisconsin, on this 30th day of June, 1995.
JOHNSON WORLDWIDE ASSOCIATES
RETIREMENT AND SAVINGS PLAN
By: /s/ Robert L. Inslee
Robert L. Inslee
By: /s/ Carl G. Schmidt
Carl G. Schmidt
By: /s/ Margaret C. Hebeler
Margaret C. Hebeler
By: _________________________________
Martha MacMillen
Members of the Johnson Worldwide
Associates Retirement and Savings Plan
<PAGE>
EXHIBIT INDEX
JOHNSON WORLDWIDE ASSOCIATES, INC.
RETIREMENT AND SAVINGS PLAN
Exhibit No. Exhibit
(4) Johnson Worldwide Associates Retirement and
Savings Plan
(5) Opinion of Foley & Lardner
(23.1) Consent of KPMG Peat Marwick LLP
(23.2) Consent of Foley & Lardner (contained in Exhibit
5 hereto)
(24) Power of Attorney relating to subsequent
amendments (included on the signature page to
this Registration Statement)
EXHIBIT 4
JOHNSON WORLDWIDE ASSOCIATES
RETIREMENT AND SAVINGS PLAN
(As Amended and Restated Effective October 1, 1989)
<PAGE>
JOHNSON WORLDWIDE ASSOCIATES
RETIREMENT AND SAVINGS PLAN
(As Amended and Restated Effective October 1, 1989)
Table of Contents
Page
ARTICLE I. DEFINITIONS AND CONSTRUCTION . . . . . . . . . . . . . . 2
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . 2
(a) "Affiliate" . . . . . . . . . . . . . . . . . . . . . 2
(b) "Basic Deposits" . . . . . . . . . . . . . . . . . . . 2
(c) "Beneficiary" . . . . . . . . . . . . . . . . . . . . 2
(d) "Board" . . . . . . . . . . . . . . . . . . . . . . . 2
(e) "Code" . . . . . . . . . . . . . . . . . . . . . . . . 2
(f) "Committee" . . . . . . . . . . . . . . . . . . . . . 2
(g) "Company" . . . . . . . . . . . . . . . . . . . . . . 3
(i) "Compensation" . . . . . . . . . . . . . . . . . . . 3
(j) "Deferred Profit Sharing Contribution" . . . . . . . 4
(k) "Employee" . . . . . . . . . . . . . . . . . . . . . . 4
(l) "Employer" . . . . . . . . . . . . . . . . . . . . . 5
(m) "ERISA" . . . . . . . . . . . . . . . . . . . . . . . 5
(n) "Highly Compensated Employee" . . . . . . . . . . . . 5
(o) "Investment Manager" . . . . . . . . . . . . . . . . . 6
(p) "Matching Contribution" . . . . . . . . . . . . . . . 7
(q) "Net Profits" . . . . . . . . . . . . . . . . . . . . 7
(r) "Participant" . . . . . . . . . . . . . . . . . . . . 7
(s) "Plan" . . . . . . . . . . . . . . . . . . . . . . . . 7
(t) "Plan Year" . . . . . . . . . . . . . . . . . . . . 7
(u) "Supplemental Contributions" . . . . . . . . . . . . . 7
(v) "Trust Fund" . . . . . . . . . . . . . . . . . . . . . 7
(w) "Trustee" . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.02 Construction of Terms . . . . . . . . . . . . . . 8
ARTICLE II. PARTICIPATION AND CREDITED SERVICE . . . . . . . . . . . 9
Section 2.01. Participation Requirements . . . . . . . . . . . 9
Section 2.02. Leased Employees Ineligible to Participate. . . . 9
Section 2.03. Service Within Controlled Group . . . . . . . . . 9
ARTICLE III. PARTICIPANT DEPOSITS AND EMPLOYER CONTRIBUTIONS . . . 10
Section 3.01. Election To Make Basic Deposits . . . . . . . . . 10
Section 3.02. Employer Contributions . . . . . . . . . . . . . 11
(a) Matching Contribution . . . . . . . . . . . . . . . . 11
(b) Deferred Profit Sharing Contribution . . . . . . . . . 11
(c) Payment of Contributions . . . . . . . . . . . . . . . 11
Section 3.03. Returnable Contributions . . . . . . . . . . . . 12
Section 3.04. No Liability for Future Contributions . . . . . . 12
Section 3.05. Rollover Contributions . . . . . . . . . . . . . 12
Section 3.06. Maximum Deposit Dollar Limit . . . . . . . . . . 13
Section 3.07. Average Deferral Percentage Test. . . . . . . . . 14
Section 3.08. Average Contribution Percentage Test. . . . . . . 15
Section 3.09. Adjustment in Application of Limitations . . . . 17
Section 3.10. Correction of Contribution Errors . . . . . . . . 17
Section 3.11. Code Section 415 Limitations . . . . . . . . . . 18
ARTICLE IV. PARTICIPANT ACCOUNTS . . . . . . . . . . . . . . . . . 20
Section 4.01. Participant Accounts . . . . . . . . . . . . . . 20
Section 4.02. Establishment of Investment Funds. . . . . . . . 20
Section 4.03. Participant Investment Designation. . . . . . . . 20
Section 4.04. Change in Investment Direction . . . . . . . . . 20
Section 4.05. Special Rules Applicable to Company Stock Fund. . 20
Section 4.06. Participant Responsibility for Investment
Elections. . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.07. Allocation of Changes in Value . . . . . . . . . 21
Section 4.08. Annual Statement for Participants . . . . . . . . 22
Section 4.09. Short-Term Investment of Contributions . . . . . 22
ARTICLE V. DISTRIBUTION OF BENEFITS . . . . . . . . . . . . . . . . 23
Section 5.01. Termination of Employment . . . . . . . . . . . . 23
Section 5.02. Death Benefits . . . . . . . . . . . . . . . . . 23
Section 5.03. General Rules Regarding Form and Time of
Distribution . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.04. Distribution Legal Requirements . . . . . . . . . 24
Section 5.05. Payment for Minor or Incompetent Person . . . . . 25
Section 5.06. Withdrawals For Reasons Other Than Financial
Hardship . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 5.07. Hardship Withdrawals . . . . . . . . . . . . . . 26
Section 5.08. Loans to Eligible Borrowers . . . . . . . . . . . 28
(a) Terms and Conditions. . . . . . . . . . . . . . . . . 28
(c) Loan Accounting and Default . . . . . . . . . . . . . 30
(d) Automatic Suspension Upon Default . . . . . . . . . . 30
(e) Administrator Authority . . . . . . . . . . . . . . . 30
(f) Borrower Definition . . . . . . . . . . . . . . . . . 31
Section 5.09. Transfer of Eligible Rollover Distributions . . . 31
ARTICLE VI. ADMINISTRATION AND PLAN COMMITTEE . . . . . . . . . . 33
Section 6.01. Appointment of Members . . . . . . . . . . . . . 33
Section 6.02. Responsibility and Authority of the Committee . . 33
Section 6.03. Use of Professional Services . . . . . . . . . . 33
Section 6.04. Fees and Expenses . . . . . . . . . . . . . . . . 34
Section 6.05. Organization and Procedure . . . . . . . . . . . 34
Section 6.06. Delegation of Authority and Responsibility . . . 34
Section 6.07. Claims Procedure . . . . . . . . . . . . . . . . 34
Section 6.08. Communications . . . . . . . . . . . . . . . . . 35
Section 6.09. Agent for Service of Process . . . . . . . . . . 36
ARTICLE VII. TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.01. Appointment of Trustee . . . . . . . . . . . . . 37
Section 7.02. Trust Fund . . . . . . . . . . . . . . . . . . . 37
Section 7.03. Investment Manager . . . . . . . . . . . . . . . 37
ARTICLE VIII. FIDUCIARIES AND ALLOCATION OF RESPONSIBILITIES . . . . 38
Section 8.01. Fiduciaries . . . . . . . . . . . . . . . . . . . 38
Section 8.02. Allocation of Fiduciary Responsibilities . . . . 38
Section 8.03. General Limitation on Liability . . . . . . . . . 38
Section 8.04. Multiple Fiduciary Capacities . . . . . . . . . . 38
ARTICLE IX. AMENDMENT AND TERMINATION . . . . . . . . . . . . . . 39
Section 9.01. Amendment . . . . . . . . . . . . . . . . . . . . 39
Section 9.02. Termination . . . . . . . . . . . . . . . . . . . 39
Section 9.03. Vesting and Distribution of Assets upon
Termination . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE X. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . 41
Section 10.01. Participants To Furnish Information . . . . . . . 41
Section 10.02. Non-Guarantee of Employment or Other Benefits . . 41
Section 10.03. Mergers, Consolidations and Transfers of Plan
Assets . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 10.04. Spendthrift Clause . . . . . . . . . . . . . . . 41
Section 10.05. Exclusive Benefit . . . . . . . . . . . . . . . . 41
Section 10.06. Successors and Assigns . . . . . . . . . . . . . 42
Section 10.07. Committee Member and Trustee Indemnification . . 42
Section 10.08. Limitation on Claims Against Trust Fund . . . . . 42
Section 10.09. Qualified Domestic Relations Orders . . . . . . . 42
Section 10.10. Top-Heavy Plan Restrictions . . . . . . . . . . . 42
Section 10.11. Effective Date of Plan Provisions . . . . . . . . 44
<PAGE>
JOHNSON WORLDWIDE ASSOCIATES
RETIREMENT AND SAVINGS PLAN
Prior to October 1, 1988, various subsidiaries or affiliates of
the Company maintained qualified profit sharing plans for the benefit of
employees eligible to participate therein (hereinafter called the "Prior
Plans"). Effective October 1, 1988, the Prior Plans were merged together
and amended to restated to create the present plan, known as the Johnson
Worldwide Associates Retirement and Savings Plan and Trust (hereinafter
called the "Plan"). The Company deems it desirable to amend and restate
anew the Plan in its entirety to incorporate amendments made to the Plan
since it became effective; to reflect current legal requirements, and to
reflect a general redesign of the Plan's structure and operation.
ARTICLE I. DEFINITIONS AND CONSTRUCTION
Section 1.01. Definitions. The following words and phrases
when used in the Plan shall have the following respective meanings, unless
the context clearly indicates otherwise:
(a) "Affiliate" means one or more corporations, trades or
businesses that, together with the Company, constitute a controlled group
of corporations within the meaning of Section 414(b) of the Code, a group
of trades or businesses under common control within the meaning of Section
414(c) of the Code, an affiliated service group within the meaning of
Section 414(m) of the Code or a designated group within the meaning of
Section 414(o) of the Code.
(b) "Basic Deposits" means the amounts designated by a
Participant pursuant to Section 3.01 hereof which are contributed to the
Plan by the Employers in lieu of payment of an equal amount to the
Participant as immediately taxable Compensation.
(c) "Beneficiary" means the person or persons designated by a
Participant or otherwise entitled to receive benefits in the event of the
Participant's death as provided herein. A Participant shall designate
his Beneficiary on the form and in the manner prescribed by the Committee
and such designation may be changed or withdrawn by the Participant at any
time. The most recent valid designation on file with the Committee at
the time of the Participant's death shall be the Beneficiary.
Notwithstanding the foregoing, in the event the Participant is married at
the time of his death, the Beneficiary shall be the Participant's
surviving spouse unless such spouse consented in writing to the
designation of an alternative Beneficiary after notice of the spouse's
rights and such consent was witnessed by a Plan representative appointed
by the Committee or a notary public. In the event no valid designation of
Beneficiary is on file with the Committee at the date of death or no
designated Beneficiary survives him, the Participant's spouse shall be
deemed the Beneficiary; in the further event the Participant is unmarried
or his spouse does not survive him, the Participant's estate shall be
deemed to be his Beneficiary.
(d) "Board" means the board of directors of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as
interpreted by applicable regulations and rulings issued pursuant thereto,
all as amended and in effect from time to time.
(f) "Committee" means the committee appointed pursuant to
Section 6.01 hereof to administer the Plan.
(g) "Company" means Johnson Worldwide Associates, Inc., a
Wisconsin corporation, or any successor thereto.
(h) "Company Stock" means non-voting common stock of the
Company. An investment fund established under Section 4.02 to invest in
Company Stock shall be known as the "Company Stock Fund."
(i) "Compensation" means, with respect to periods on or after
October 1, 1994, a Participant's regular wages or earnings for the
Participant's normal work period (in the case of Basic and Supplemental
Contributions) or for the Plan Year (in the case of Deferred Profit
Sharing Contributions), determined in accordance with the following rules:
(i) Compensation shall be determined prior to
reduction for any Basic Deposits or
Supplemental Contributions to this Plan or any
other salary reduction contributions to any
other plan maintained by the Company or an
Affiliate that are excluded from the
Participant's gross income under Sections 125
or 402(a)(8) of the Code;
(ii) Compensation shall include the regular wages or
earnings payable to the Participant for any
period of time during which the Participant is
absent from work on a paid vacation;
(iii) Compensation shall include any shift premium
payable to the Participant that is not in the
nature of overtime compensation;
(iv) Except for Participants employed in
Binghampton, New York, Compensation shall not
include bonuses or other incentive
compensation, commissions and sales incentive
payments. For Participant's employed in
Binghampton, New York, Compensation shall
include the value of any incentive payments
with respect to any Participant whose base
salary or wage is expected to constitute
seventy-five percent (75%) or less of his
taxable earnings;
(v) Compensation shall not include overtime pay or
other pay for work in excess of the
Participant's normal work schedule, the value
of any stock options granted to the
Participant, Employer contributions to this
Plan or any other employee benefit plan,
imputed income attributable to the Participant
as a result of the Participant's participation
in employee benefit programs, medical or other
expense reimbursement, moving expense
reimbursement or allowance, car allowances,
severance or termination pay, and any other
form of additional remuneration and/or expense
reimbursement which the Committee, in its sole
discretion, designates as not being
Compensation hereunder in accordance with
uniform rules, regulations and standards as may
from time to time be prescribed by the
Committee.
Additional rules concerning Compensation for periods prior to October 1,
1994 are set forth in Appendix B. Further, for Plan Years commencing
prior to October 1, 1994, the maximum Compensation taken into account for
any Participant with respect to any Plan Year shall be two hundred
thousand dollars ($200,000) or such higher amount permitted pursuant to
Code Section 401(a)(17) due to cost of living increases. For Plan Years
commencing after September 30, 1994, the maximum Compensation taken into
account for any Participant with respect to any Plan Year shall be one
hundred fifty thousand dollars ($150,000) or such amount permitted
pursuant to Code Section 401(a)(17) due to cost of living increases. In
the event of a short Plan Year or other determination period of less than
twelve (12) months, the annual limitation shall equal an amount determined
by multiplying the otherwise applicable annual compensation limit for such
year by a fraction, the numerator of which is the number of months in the
short period, and the denominator of which is twelve (12). For purposes
of calculating this maximum for any five percent (5%) owner or Highly
Compensated Employee who is in the group of ten (10) employees paid the
greatest Compensation for the Plan Year, then, in accordance with Code
Section 414(q), Compensation of a spouse or lineal descendant under age
nineteen (19) as of the last day of the Plan Year shall be treated as if
paid to the Employee. If the Compensation of the aggregated family group
exceeds the limitation in effect for that Plan Year, the limitation for
such Plan Year shall be prorated among the affected family members in
proportion to each member's Compensation as determined without regard to
the maximum annual limit.
(j) "Deferred Profit Sharing Contribution" means the
discretionary amount contributed by an Employer pursuant to Section
3.02(b) hereof.
(k) "Employee" means an individual who is classified by an
Employer as a common law employee, other than (i) a "leased employee"
within the meaning of Section 414(n) of the Code, (ii) an employee the
terms and conditions of whose employment is governed by a collective
bargaining agreement where retirement benefits were the subject of good
faith bargaining, or (iii) a student regularly attending an educational
institution and working for an Employer either as a formal and accredited
part of the regular curriculum of such institution or within such
institution's customary vacation days and/or periods between its academic
terms.
(l) "Employer" means the Company and any Affiliate which may
from time to time be designated by the Board as an Employer under the Plan
and which adopts the Plan by appropriate corporate action. When the Plan
is extended to an Affiliate, the Board may limit the participation of such
Affiliate to participation in only certain programs or portions of the
Plan or to only certain employees or classes of employees.
(m) "ERISA" means the Employee Retirement Income Security Act
of 1974, as interpreted and applied under regulations and rulings issued
pursuant thereto, all as amended and in effect from time to time.
(n) "Highly Compensated Employee" means an employee of the
Company or any Affiliate who, during the current or immediately preceding
Plan Year, satisfies any of the following conditions:
(i) The employee was at any time a five percent
(5%) owner within the meaning of Code Sections
414(q)(3) and 416(i);
(ii) The employee received "compensation" from the
Company or any Affiliate that, in the
aggregate, exceeds $75,000 as indexed in
accordance with Code Section 414(q) for cost-
of-living adjustments;
(iii) The employee received "compensation" from the
Company or any Affiliates that, in the
aggregate, exceeds $50,000 as indexed in
accordance with Code Section 414(q) for cost-
of-living adjustments, and the employee is
among the highest paid twenty percent (20%) of
all employees of the Company and Affiliates.
For this purpose, employees who have not
completed six (6) months of service as of the
end of calendar year, employees who normally do
not work more than six months in any year,
employees who normally work fewer than 17.5
hours per week, employees who have not attained
age twenty-one (21) by the end of the calendar
year, and non-resident aliens who receive no
earned income from sources within the United
States, are excluded from consideration.
(iv) The employee was at any time an officer of the
Company or any Affiliate and receives
"compensation" from the Company or any
Affiliate that, in the aggregate, exceeds fifty
percent (50%) of the limitation in effect for
such year under Code Section 415(b)(1)(A).
The number of officers required to be taken
into account shall be determined in accordance
with Code Section 414(q) and the regulations
thereunder, but the maximum number of officers
that must be considered shall never exceed
fifty (50). If no officer satisfies the
compensation requirement, the highest paid
officer for such year shall be treated as a
Highly Compensated Employee.
Notwithstanding the foregoing, an employee who is identified under
categories (ii), (iii) and (iv) for the current Plan Year but was not
identified under any of such categories for the immediately preceding Plan
Year shall be a Highly Compensated Employee with respect to the current
Plan Year only if the employee is among the one hundred (100) most highly
compensated employees of the Company or any Affiliate.
In the case of a Highly Compensated Employee who is a five
percent (5%) owner or one of the ten (10) Highly Compensated Employees
paid the most Compensation, then the Highly Compensated Employee and any
family members shall be aggregated so that any Compensation paid to the
family member or contributions made on behalf of the family member shall
be attributed to the Highly Compensated Employee. For this purpose,
family member incudes the spouse of the Highly Compensated Employee,
lineal ascendant and descendants of the Highly Compensated Employee, and
the spouses of such lineal ascendant and descendants. The determination
of an individual's status as a Highly Compensated Employee shall be made
in accordance with Code Section 414(q) and the regulations thereunder.
For purposes of determining whether an employee is a Highly
Compensated Employee, "compensation" shall mean the employee's
compensation within the meaning of Section 414(q) of the Code, plus to the
extent not otherwise included, any amount paid by the Company during the
Plan Year as a Basic Deposit to this Plan or pre-tax employee
contributions to any other plan maintained by the Company if such
contributions are excluded from the gross income of the Participant in
accordance with Code Sections 125, 402(e)(3) or 402(h).
(o) "Investment Manager" means any person, committee, insurance
company, corporation, partnership or association, or any multiple and/or
combination thereof, including without limitation, the Trustee and the
Committee, which may be appointed by the Committee to direct the
investment and reinvestment of all or any portion of the Trust Fund assets
and which satisfies ERISA Section 3(38)'s definition of "investment
manager" to the extent that such definition is applicable under the
circumstances of its appointment.
(p) "Matching Contribution" means the amount contributed by an
Employer pursuant to Section 3.02(a) hereof based on the Basic Deposits of
Participants.
(q) "Net Profits" means the current or accumulated net income
of an Employer as determined according to the Employer's regular
accounting procedures, but before deductions for federal and state income
taxes or any Basic Deposits, Matching Contributions or Deferred Profit
Sharing Contributions hereunder. The Committee shall determine Net
Profits for each fiscal year, and such determination shall be final and
conclusive for all purposes of the Plan.
(r) "Participant" means an Employee who meets the requirements
of Article II hereof for participation in the Plan.
(s) "Plan" means the profit sharing and savings plan set forth
herein, as from time to time amended, which shall be known as the "Johnson
Worldwide Associates Retirement and Retirement Savings Plan." The Profit
Sharing feature of the Plan refers to Deferred Profit Sharing
Contributions as described in Section 3.02(b); the Savings feature of the
Plan refers to Participant Basic Deposits, Supplemental Contributions and
Employer Matching Contributions as described in Section 3.01 and 3.02(a),
respectively. The governing documents for the Plan and its related Trust
Fund shall include this Agreement, any amendments thereto, relevant Board
or other corporate director resolutions and other written agreements
relating thereto and such uniformly applicable rules, regulations and
standards promulgated by the Committee consistent and in accordance with
the terms hereof.
(t) "Plan Year" means the twelve (12) month period commencing
on October 1 of each year and ending on September 30 of the following
year.
(u) "Supplemental Contributions" means all after-tax amounts
contributed to the Plan by Participants pursuant to Section 3.01.
(v) "Trust Fund" means all sums of money and other property
together with all earnings, income, and other increment thereon held in
trust for purposes of providing benefits and defraying the reasonable
expenses of the Plan, pursuant to the terms of a written trust agreement
in effect between the Company and the Trustee.
(w) "Trustee" means the person, persons or entity appointed by
the Board of Directors as trustee of the Plan.
Section 1.02 Construction of Terms. (a) Wherever any words
are used herein in the masculine, they shall be construed as though they
were used in the feminine in all cases where they would so apply, and
wherever any words herein are used in the singular or the plural, they
shall be construed as though they were used in the plural or the singular,
as the case may be, in all cases where they would so apply. The words
"hereof", "herein", "hereunder" and other similar compounds of the word
"here" shall mean and refer to this entire Agreement and not to any
particular article or section. Titles of articles and sections hereof are
for general information only, and this Agreement and the Plan are not to
be construed by reference thereto.
(b) The Plan is intended to qualify under Code Sections 401(a),
401(k) and 501(a) and shall be interpreted so as to comply with the
applicable requirements thereof, where such requirements are not clearly
contrary to the express terms hereof. The Plan shall be construed and its
validity determined according to the laws of the State of Wisconsin to the
extent such laws are not preempted by federal law. In case any provision
of the Plan shall be held illegal or invalid for any reason, said
illegality or invalidity shall not affect the remaining parts of the Plan,
but the Plan shall be construed and enforced as if said illegal and
invalid provisions had never been inserted herein.
ARTICLE II. PARTICIPATION AND CREDITED SERVICE
Section 2.01. Participation Requirements. An Employee of an
Employer shall become a Participant in the Profit Sharing feature of the
Plan, and shall be eligible to participate in the Savings feature of the
Plan, effective on the first day of the calendar quarter coincident with
or next following the date on which the Employee completes ninety (90)
days of employment with the Employer. A former Participant who is
reemployed by an Employer shall again become a Participant in the Profit
Sharing feature of the Plan and be eligible to participate in the Savings
feature of the Plan on his date of rehire.
Section 2.02. Leased Employees Ineligible to Participate. A
"leased employee" within the meaning of Code Section 414(n) and (o) shall
not be eligible to participate in the Plan. In the event that a leased
employee is hired as a common law employee of an Employer, the period of
time that such employee was a leased employee of the Company or any
Affiliate shall be treated as employment with an Employer for purposes of
this Article II.
Section 2.03. Service Within Controlled Group. Solely for
purposes of determining whether an Employee has satisfied the
participation requirements of Section 2.01 above, an Employee's previous
employment with an Affiliate of the Company that has not been designated
as an Employer for purposes of the Plan shall be considered as if such
employment had been with an Employer provided that the employment occurs
on or after the date on which the Affiliate became an Affiliate of the
Company.
ARTICLE III. PARTICIPANT DEPOSITS AND EMPLOYER CONTRIBUTIONS
Section 3.01. Election To Make Basic Deposits. (a) Initial
Participation Election. A Participant may file a written election to make
Basic Deposits and/or Supplemental Contributions. The Participant is not
required to elect to make Basic Deposits and/or Supplemental Contributions
when first eligible to do so, but may file the election a later time,
provided that the eligibility requirements of Section 2.01 are satisfied
at the time of the election. A timely filed and properly completed
election shall be effective as of the first day of the month following the
date on which it is filed with the Committee or its delegate, or as soon
thereafter as is administratively convenient, and once effective, shall
continue in effect until modified, suspended or terminated in accordance
with the terms of the Plan.
(b) Change in Participation Election. A Participant may change
the rate of his Basic Deposits and/or Supplemental Contributions,
including an election to suspend Basic Deposits and Supplemental
Contributions altogether, by filing a revised participation election with
the Committee or its delegate. A timely filed and properly completed
revised participation election shall become effective (and thus supersede
any prior elections made by the Participant) as of the first day of the
month following the date on which the revised election is filed with the
Committee or its delegate, or as soon thereafter as is administratively
convenient, and once effective, shall continue in effect until modified,
suspended or terminated in accordance with the terms of the Plan.
(c) Form and Time of Participation Election. A Participant's
election (whether the initial election or a revised election) shall be in
such form and filed at such time and in such manner as the Committee or
its delegate may prescribe from time to time. Such rules may include,
without limitation, a requirement that an election be received by the
Committee or its delegate by a prescribed date in order to be effective on
the first day of the following month or as soon thereafter as is
administratively convenient.
(d) Payment of Basic and Supplemental Contributions. Basic
Deposits and Supplemental Contributions shall be made by payroll
deduction. Basic and Supplemental Contributions received by an Employer
through payroll deduction shall be remitted to the Trustee on a monthly or
more frequent basis as is determined by the Committee to be consistent
with applicable requirements of ERISA and the Code.
(e) Automatic Suspension of Basic and Supplemental
Contributions. Basic and Supplemental Contributions shall be
automatically suspended for any period during which an individual no
longer qualifies as an Employee of an Employer who is eligible to
participate in the Plan.
(f) Correction of Missed Deposits. A Participant shall not be
permitted to make up suspended Basic and/or Supplemental Contributions or
to make retroactive Basic and/or Supplemental Contributions, unless the
Committee determines that the missing Basic and/or Supplemental
Contributions were the result of an administrative or clerical error on
the part of the Committee or its delegate in determining or deducting from
Compensation the amount of Basic and/or Supplemental Contributions elected
by the Employee, and then only to the extent that the Committee determines
that a correction of the error can be made in accordance with applicable
legal requirements.
Section 3.02. Employer Contributions. (a) Matching
Contribution. Except as provided in Appendix B with respect to periods
prior to October 1, 1994, each Employer shall contribute to the Trust Fund
for each Plan Year from its Net Profits an amount equal to one-half (1/2)
of the first six percent (6%) of a Participant's Compensation that the
Participant elects to have contributed to the Plan as a Basic Deposit for
that Plan Year. The Employer's Matching Contribution shall be paid to the
Trustee on an annual or more frequent basis as determined by the
Committee, but in no event later than the time specified in Section
3.02(c) immediately below, and shall be credited to the Participant's
Matching Contribution subaccount in accordance with Section 4.01.
(b) Deferred Profit Sharing Contribution. Except as provided
in Appendix B with respect to periods prior to October 1, 1994, each
Employer (other than the Company with respect to JWA Mankato operations
and the Lake Electric division, Airguide Instrument Company and Old Town
Canoe, Inc.) may, but need not, contribute to the Trust Fund for any Plan
Year from its Net Profits an amount to be determined in the sole
discretion of its Board of Directors. The contribution (if any) shall be
allocated among the Deferred Profit Sharing subaccounts of all
Participants who were actively employed by the contributing Employer on
the last day of the Plan Year or who retired during the Plan Year on or
after attainment of age fifty-five (55). Each eligible Participant's
allocable share of his Employer's profit sharing contribution shall equal
the amount obtained by multiplying the total profit sharing contribution
to be made by the Employer by a fraction, the numerator of which is the
Participant's Compensation for the Plan Year and the denominator of which
is the aggregate Compensation for the Plan Year of all Participants who
are eligible to share in the allocation of the Employer contribution.
(c) Payment of Contributions. Each Employer's Matching and
Deferred Profit Sharing Contributions for any Plan Year shall be paid to
the Trustee not later than the time prescribed by law (including any
extensions thereof) for filing the Employer's federal income tax return
for that Plan Year. Notwithstanding any provision herein to the contrary,
an Employer shall not make any contributions (including those representing
Basic Deposits) for such Plan Year in excess of the maximum amount
deductible for federal income tax purposes for that Plan Year pursuant to
Code Section 404. In the event that the amount that an Employer would
contribute but for the deductible limitation exceeds the deductible
limitation, contributions shall be reduced in such manner as the
Committee, in its sole discretion, shall prescribe. In the event that an
Employer does not have sufficient Net Profits for all its Basic Deposits,
Matching Contributions and/or Profit Sharing Contributions, all or any
portion of such insufficiency may be contributed on behalf of such
Employer, as determined and approved by the Board in its sole discretion,
from Net Profits of any other Employer in accordance with Code Section
404(a)(3)(B). Conjunctively or alternatively, the Board may, in its sole
discretion, authorize any Employer to pay all or any part of its Basic
Deposits, Matching Contributions and/or Profit Sharing Contributions for
that Plan Year without regard to the existence or absence of any Net
Profits for such Plan Year; and in the event of such authorization, the
portion of the Plan related to Basic Deposits, Matching Contributions and
Profit Sharing Contributions shall nevertheless continue to be intended to
qualify as a profit sharing plan for purposes of the Code.
Section 3.03. Returnable Contributions. In the event that any
portion of Basic Deposits, Supplemental Contributions, Matching
Contributions, and/or Deferred Profit Sharing Contributions for the Plan
Year is either paid to the Trustee due to a mistake of fact or disallowed
as a deduction under Code Section 404, such portion may, if and as the
Committee so directs, be returned to the Employer within one (1) year of
its payment or disallowance, as the case may be. All Employer
contributions (including Basic Deposits made at the election of
Participants) are expressly conditioned upon their deductibility under
Section 404 of the Code.
Section 3.04. No Liability for Future Contributions. Benefits
and distributions under the Plan shall be only such as can be provided by
the assets of the Plan, and there shall be no liability or obligation on
the part of any Employer to make any further contributions in the event of
termination of the Plan.
Section 3.05. Rollover Contributions. Subject to such uniform
and non-discriminatory rules as the Committee may prescribe, the Committee
may accept, from another employer's qualified pension retirement or profit
sharing plan, a "direct rollover" in accordance with Section 401(a)(31) of
the Code, not including any after-tax employee contributions or other
amounts that are not eligible for rollover. Such contribution shall be
allocated to a separate subaccount maintained in the employee's name. If
this allocation occurs before the employee has satisfied the participation
requirements of Section 2.01 hereof, he shall be deemed to be a
Participant hereunder solely with respect to that subaccount's balance
until he has otherwise satisfied such requirements. Notwithstanding the
foregoing, if the Committee determines subsequent to the Trustee's receipt
of the rollover contribution that it does not qualify under the provisions
of this Section 3.05 and/or aforesaid Code Sections, such contribution and
any Plan investment earnings attributable to it shall be returned to such
employee as soon thereafter as is reasonably practicable.
Section 3.06. Maximum Deposit Dollar Limit. (a) The maximum
amount of Basic Deposits made on behalf of any Participant for any
calendar year, under this Plan and other plans of the Company or any
Affiliate that permit elective deferral contributions, shall not exceed
the limitation in effect for such year under Section 402(g) of the Code.
(i) In the event that this limitation is exceeded
for any year taking into account Basic Deposits
to this Plan and elective deferral
contributions to others plans maintained by the
Company or any Affiliate, the excess
contributions, together with all income on such
excess for the year in which the excess
contribution was made (but not including any
gap period income) will be distributed to the
Participant on or before the first April 15
following the end of the calendar year for
which the limitation has been exceeded.
(ii) In the event that a Participant provides timely
notice in accordance with Section 402(g)(3) of
the Code that the Section 402(g) limitation has
been exceeded for any year taking into account
not only this Plan and other plans maintained
by the Company or any Affiliate, but also by
taking into account plans maintained by other
employers, the excess, together with all income
on such excess for the year in which the excess
contribution was made (but not including any
gap period income) may, but need not, be
returned to the Participant. If the
Administrator elects to distribute the amount
of any excess, distribution shall be made no
later than the first April 15 following the end
of the calendar year for which the limitation
has been exceeded.
(b) The amount by which the Participant has exceeded the
Section 402(g) limitation shall be reduced by the amount of Basic Deposits
(if any) previously distributed to the Employee in accordance with Section
3.07.
(c) The Committee, in its sole discretion, may establish
additional rules necessary for the Section 402(g) limitation to be met
with respect to any Participant, including, but not limited to, rules that
require a prospective reduction in or refund of a Participant's Basic
Deposits in order to meet that limitation and the rules applicable to
satisfy the appropriate limitations should a Participant participate
within the same Plan Year in this Plan and another tax-qualified plan
intended to meet the requirements of Code Section 401(k).
Section 3.07. Average Deferral Percentage Test. (a) The Plan
is subject to the limitations of Code Section 401(k)(3), which are
incorporated herein by this reference. Accordingly, the actual deferral
percentage for the group of Highly Compensated Employees who are eligible
to participate in the Plan shall not exceed the greater of:
(i) 125 percent of the actual deferral percentage
for all Employees eligible to participate in
the Plan other than Highly Compensated
Employees ("Non-Highly Compensated Employees");
or
(ii) the least of: (A) the actual deferral
percentage for the group of Non-Highly
Compensated Employees plus two percent; (B) two
times the actual deferral percentage for the
group of Non-Highly Compensated Employees; or
(C) such lower amount or percentage as may be
necessary to comply with rules promulgated by
the Secretary of the Treasury to prevent
multiple use of this limitation and the
limitation described in Section 3.08(c)(i).
(b) The average deferral percentage for any Participant
(including a Participant who is eligible to but elects not to make Basic
Deposits) is calculated by dividing the amount of the Participant's Basic
Deposits for the year by the Participant's "compensation" for the year.
For purposes of the average deferral percentage test and in accordance
with regulations promulgated by the Secretary of the Treasury, the
Committee may elect to treat all or a portion of Deferred Profit Sharing
Contributions and/or Matching Contributions as if they were Basic
Deposits; provided that to the extent the Committee does so, such amounts
may not be considered for purposes of the average contribution percentage
test described in Section 3.08.
(c) In calculating the average deferral percentage for any
Highly Compensated Employee who is a five percent (5%) owner or one of the
ten (10) Highly Compensated Employees paid the greatest "compensation",
during the Plan Year, the family aggregation rules of Section 414(q) of
the Code shall apply, so that the "compensation" paid to and the
contributions made by or on behalf of certain family members shall be
deemed to be Compensation paid to and contributions made by or on behalf
of the Highly Compensated Employee.
(d) If the average deferral percentage of Highly Compensated
Employees exceeds the applicable deferral percentage limitation as of the
end of any Plan Year, each affected Highly Compensated Employees shall
receive a distribution of the amount of his excess Basic Deposits,
together with income on such Basic Deposits for the Plan Year in which the
contributions were made (but not including any gap period income). Such
distribution shall be made on or before the last day of the Plan Year
following the Plan Year to which the excess Basic Deposits relate;
provided that the Company will be subject to an excise tax if excess Basic
Deposits are not distributed within two and one-half months following the
close of the Plan Year in which the Basic Deposits were made. The Highly
Compensated Employees with respect to whom a distribution will be made
shall be determined by reducing (or leveling) the maximum allowable level
of Basic Deposits to a percentage determined by the Committee that, if
applied to all Highly Compensated Employees with a deferral percentage
above that level, would result in the average deferral percentage test
being satisfied for the year. The amount required to be distributed to
any Highly Compensated Employee shall be reduced by the amount of excess
Basic Deposits contributions (if any) previously distributed to the Highly
Compensated Employee in accordance with Section 3.06.
(e) To the extent that Basic Deposits refunded to a Highly
Compensated Employee in accordance with Section 3.07(d) above resulted in
Matching Contributions being allocated to the Highly Compensated
Employee's account, such Matching Contributions, together with all income
on such Matching Contributions for the Plan Year to which Matching
Contributions relate (but not including any gap period income) shall be
forfeited. This forfeiture shall occur notwithstanding the vesting
schedule otherwise applicable to Matching Contributions.
(f) For purposes of this Section 3.07, "compensation" means
compensation within the meaning of Section 414(s) of the Code, plus to the
extent not otherwise included, any amount paid by the Company or an
Affiliate during the Plan Year as a Basic Deposit to this Plan or pre-tax
employee contributions to any other plan maintained by the Company or an
Affiliate if such contributions are excluded from the gross income of the
Employee in accordance with Code Sections 125, 402(e)(3) or 402(h).
(g) The Committee, in its sole discretion, may establish
additional rules necessary for the average deferral percentage limitation
to be met, including, but not limited to, rules that require a prospective
reduction in or refund of a Participant's Basic Deposits in order to meet
that limitation and the rules applicable to satisfy the appropriate
limitations should a Participant participate within the same Plan Year in
this Plan and another tax-qualified plan intended to meet the requirements
of Code Section 401(k).
Section 3.08. Average Contribution Percentage Test. (a) The
Plan is subject to the limitations of Code Section 401(m)(3), which are
incorporated herein by this reference. Accordingly, the actual
contribution percentage for the group of Highly Compensated Employees who
are eligible to participate in the Plan shall not exceed the greater of:
(i) 125 percent of the actual contribution
percentage for all Employees eligible to
participate in the Plan other than Highly
Compensated Employees ("Non-Highly Compensated
Employees"); or
(ii) the least of: (A) the actual contribution
percentage for the group of Non-Highly
Compensated Employees plus two percent; (B) two
times the actual deferral contribution
percentage for the group of Non-Highly
Compensated Employees; or (C) such lower amount
or percentage as may be necessary to comply
with rules promulgated by the Secretary of the
Treasury to prevent multiple use of this
limitation and the limitation described in
Section 3.07(a)(i).
(b) The average contribution percentage for any Participant is
calculated by dividing the amount of the Participant's Matching
Contributions and Supplemental Contributions for the year by the
Participant's "compensation" for the year. For purposes of the average
contribution percentage test and in accordance with regulations
promulgated by the Secretary of the Treasury, the Committee may elect to
treat all or a portion of Deferred Profit Sharing Contributions and/or
Basic Deposits as if they were Matching Contributions; provided that to
the extent the Committee does so, such amounts may not be considered for
purposes of the average deferral percentage test described in Section
3.07.
(c) In calculating the average contribution percentage for any
Highly Compensated Employee who is a five percent (5%) owner or one of the
ten (10) Highly Compensated Employees paid the greatest "compensation"
during the Plan Year, the family aggregation rules of Section 414(q) of
the Code shall apply, so that the "compensation" paid to and the
contributions made by or behalf of certain family members shall be deemed
to be "compensation" paid to and contributions made by or on behalf of the
Highly Compensated Employee.
(d) If the average contribution percentage of Highly
Compensated Employees exceeds the applicable contribution percentage
limitation as of the end of any Plan Year, each affected Highly
Compensated Employees shall receive a distribution of the amount of his
excess Matching Contributions and Supplemental Contributions for the year,
together with all income on such Matching Contributions and Supplemental
Contributions for the Plan Year to which the contributions relate (but not
including any gap period income); provided, however, that excess Matching
Contributions and Supplemental Contributions and income shall be forfeited
if and to the extent the Highly Compensated Employee is not vested in such
amounts. Such distribution (or forfeiture) shall be made on or before the
last day of the Plan Year following the Plan Year to which the excess
Matching Contributions and Supplemental Contributions relate; provided
that the Company will be subject to an excise tax if excess Matching
Contributions and Supplemental Contributions are not distributed (or
forfeited) within two and one-half months following the close of the Plan
Year in which the Matching Contributions and Supplemental Contributions
relate. The Highly Compensated Employees with respect to whom a
distribution (and/or forfeiture) will be made shall be determined by
reducing (or leveling) the maximum allowable Matching Contributions and
Supplemental Contributions to a percentage determined by the Committee
that, if applied to all Highly Compensated Employees with a contribution
percentage above the level determined by the Committee, would result in
the average contribution percentage test being satisfied for the year.
(e) For purposes of this Section 3.08, "compensation" means
compensation within the meaning of Section 414(s) of the Code, plus to the
extent not otherwise included, any amount paid by the Company or an
Affiliate during the Plan Year as a Basic Deposit to this Plan or pre-tax
employee contributions to any other plan maintained by the Company or an
Affiliate if such contributions are excluded from the gross income of the
Employee in accordance with Code Sections 125, 402(e)(3) or 402(h).
(f) The Committee, in its sole discretion, may establish
additional rules necessary for the average contribution percentage
limitation to be met with respect to any Participant, including, but not
limited to, rules applicable to satisfy the appropriate limitations should
a Participant participate within the same Plan Year in this Plan and
another tax-qualified plan intended to meet the requirements of Code
Section 401(k).
Section 3.09. Adjustment in Application of Limitations. This
Plan is intended to conform with Code Sections 401(k) and 401(m). In the
event that the Committee determines that, in accordance with the Code, the
limitations of Code Sections 401(k) and (m) (including, but not limited
to, any definitions related thereto), may be applied in a manner different
from that prescribed in this Article III, the Committee may, in its
discretion, make appropriate adjustments.
Section 3.10. Correction of Contribution Errors. In the event
that an error is made with respect to the amount of, or in the allocation
of, a Matching Contribution or Deferred Profit Sharing Contribution for
the current or prior Plan Year which results in a Participant's account
being understated and which cannot be corrected by reallocation prior to
notification to Participants of their account balances, the Participant's
Employer may contribute such amounts as may be necessary to bring the
account balance of such Participant up to the amount that would have
existed had the error not been made. The purpose of this provision is to
guard against unforeseeable inadvertent errors which adversely affect
individual Participants. To that end, amounts contributed pursuant to the
provisions of this Section 3.10 to correct such errors shall be credited
directly to the accounts of the Participants affected. Amounts
contributed hereby shall be increased or reduced to reflect the earnings
or losses of the Trust Fund as of the calendar quarter end immediately
preceding the contributions so that the Participant is in substantially
the same position that he would have been if the proper amount had been
initially contributed or allocated.
Section 3.11. Code Section 415 Limitations. (a) The Plan is
subject to the limitations on benefits and contributions imposed by Code
Section 415, which are incorporated herein by this reference. The
limitation year shall be the Plan Year.
(b) Any amounts that are not allocable to a Participant because
of the Section 415 limitations shall be allocated among other eligible
Participants to the extent that such additional allocation would not
exceed the Section 415 limits with respect to such other Participants. If
all Participants are precluded from receiving additional allocations as a
result of the Section 415 limitations, the unallocable amount shall be
credited to a suspense account subject to the following conditions:
(i) amounts in the suspense account shall be
allocated among eligible Participants at such
time, including termination of the Plan or
complete discontinuance of Employer
contributions, as the Section 415 limitations
permit;
(ii) no investment gains or losses shall be
allocated to the suspense account;
(iii) no further Employer contributions shall be
permitted until the Section 415 limitations
permit the allocation of the suspense account
to Participants; and
(iv) upon termination of the Plan, any unallocated
amounts in the suspense account that are still
unallocable because of the limitations of
Section 415 shall revert to the applicable
Employer.
(c) To the extent that a Participant participates in multiple
plans maintained by the Company or any Affiliate, benefits under this Plan
shall be restricted to the extent necessary to comply with the
requirements of Code Section 415(e) prior to the restriction of
contribution or benefits under any other plan.
(d) If, notwithstanding the foregoing provisions of this
Section 3.11, the limitations of Section 415 are exceeded as a result of a
reasonable error in estimating a Participant's compensation, a reasonable
error is estimating the amount of Basic Deposits and Supplemental
Contributions that a Participant may elect under the limits of Section
415, or such other facts and circumstances as the Commissioner of the
Internal Revenue Service may prescribe, there shall be deducted from the
Participant's account and returned to the Participant such portion of his
Supplemental Contributions and then if necessary, his Basic Deposits,
together with earnings thereon, as may be necessary to satisfy Section
415. If the requirements are still not satisfied, there shall be deducted
from the Participant's account all or a portion of the Employer
contribution for such limitation year as may be necessary to comply with
Section 415. Such amounts shall be reallocated among other eligible
Participants to the extent that such additional allocation would not
exceed the Section 415 limits with respect to such other Participants. If
all Participants are precluded from receiving additional allocations as a
result of the Section 415 limitations, the unallocable amount shall be
credited to a suspense account in accordance with the conditions described
above.
ARTICLE IV. PARTICIPANT ACCOUNTS, INVESTMENT OF ACCOUNTS,
AND ALLOCATION OF INCOME OR LOSS
Section 4.01. Participant Accounts. An account shall be
established for each Participant with separate subaccounts, as needed, to
reflect the Participant's: (i) Basic Deposits, (ii) Matching
Contributions, (iii) Deferred Profit Sharing Contributions, (iv) Rollover
Contributions, and (v) Supplemental Contributions.
Section 4.02. Establishment of Investment Funds. In the sole
discretion of the Committee, one or more Investment Funds (including a
Company Stock Fund) may be established within the Trust Fund. The
investment objectives of each Investment Fund, as well as decisions to add
additional funds or discontinue existing funds, shall be determined by the
Committee in its sole discretion.
Section 4.03. Participant Investment Designation. Subject to
Section 4.05 below and such other uniform and nondiscriminatory rules as
the Committee may from time to time prescribe, each Participant shall
designate the Investment Fund or Funds in which his Account is to be
invested. To the extent that the Participant directs the investment of
his Account into two or more of the available Investment Funds, the
Participant shall designate, in whole increments of one percent (1%), the
percentage of his account to be invested in each Investment Fund. In the
event that a Participant fails to direct the investment of all or any part
of his account, the account (or part thereof) shall be invested on the
Participant's behalf in a money market fund or similar interest bearing or
fixed income fund.
Section 4.04. Change in Investment Direction. Subject to
Section 4.05 below and such other uniform and nondiscriminatory rules as
the Committee may from time to time prescribe, each Participant (or
following the Participant's death, his Beneficiary) may at any time elect
(i) to change his investment direction with respect to future
contributions to his account and/or (ii) to reallocate the investment of
his existing account among the Investment Funds then available under the
Plan. To the extent that the Participant directs the investment of his
Account into two or more of the available Investment Funds, the
Participant shall designate, in whole increments of one percent (1%), the
percentage of his Account to be invested in each Investment Fund. The
Participant's or Beneficiary's revised election shall take effect (and any
reallocation of the account among the available Investment Funds shall be
made) as soon as practicable after the date on which the Participant's (or
Beneficiary's) properly completed election is received by the Committee or
its delegate.
Section 4.05. Special Rules Applicable to Company Stock Fund.
The following special rules apply to a Participant's election to invest a
portion of his account in the Company Stock Fund:
(a) The Company Stock Fund shall constitute an available
investment fund only with respect to Basic Deposits, Supplemental
Contributions, Matching Contributions and Deferred Profit Sharing
contributions, and the earnings thereon, allocated to the Participant's
account on or after January 1, 1995 ("Post-1994 Contributions"). A
Participant may invest a maximum of twenty-five percent of his Post-1994
Contributions in the Company Stock Fund. Compliance with this limitation
shall be determined at the time of the Participant's initial investment
election under Section 4.03 or any change in the Participant's investment
election under Section 4.04.
(b) Purchases and sales for the Company Stock Fund shall take
place as soon as practicable after the date on which the Participant's (or
Beneficiary's) properly completed election is received by the Committee or
its delegate.
(c) In the event a tender offer is made for Company Stock, each
Participant who has an interest in the Company Stock Fund shall be
provided an opportunity to direct the Trustee as to whether or not to
tender the shares of Company Stock allocated to his account, all in
accordance with the provisions of the Johnson Worldwide Associates, Inc.
Retirement and Savings Plan Trust that concern tender offers.
(d) Transactions under this Section 4.05 are intended to comply
with all applicable conditions of Rule 16b-3 or its successor under the
Securities Exchange Act of 1934 ("Exchange Act"). The Company shall
identify any "insiders" who are subject to Rule 16b-3 or its successor.
The Plan shall be construed so that transactions under the Plan will be
exempt from Section 16 of the Exchange Act in accordance with regulations
and interpretations issued from time to time by the Securities and
Exchange Commission. To the extent required under such regulations and
interpretations issued by the Securities and Exchange Commission, an
investment election (or change in a prior investment election) made for a
Participant who is an "insider" for purposes of Rule 16b-3 shall be given
effect only if made in accordance with a six (6) month "irrevocable"
election.
Section 4.06. Participant Responsibility for Investment
Elections. A Participant's investment election (whether the initial
election or a revised election) shall be in such form and filed at such
time and in such manner as the Committee or its delegate may prescribe
from time to time, which may include for purposes of any revised election
the use of a telephonic election system. In all cases, the Participant
shall be responsible for determining that his account is invested in
accordance with his investment direction, including any change that the
Participant makes in his investment direction.
Section 4.07. Allocation of Changes in Value. Each Investment
Fund shall be valued at fair market value as of the close of each business
day, and the Participant's account (or portion of the account) that is
invested in such Fund shall be correspondingly adjusted to reflect the
Participant's proportionate share of the income or loss in such Fund since
the prior business day.
Section 4.08. Annual Statement for Participants. As soon as
practicable following each Plan Year and at such other times as the
Committee shall determine, the Committee shall prepare, or cause to be
prepared, for each Participant, in a form prescribed by the Committee, a
statement reflecting the status of the Participant's account.
Section 4.09. Short-Term Investment of Contributions. Pending
investment of contributions in the Investment Funds or Funds directed by
the Participant, such contribution may be invested in savings accounts or
other short term investments maintained with or available through a bank
or regulated investment company.
ARTICLE V. DISTRIBUTION OF BENEFITS
Section 5.01. Termination of Employment. A Participant shall
at all times be 100 percent (100%) vested in his account. Upon
termination of employment (including, without limitation, a Participant
who terminates employment on account of total and permanent disability),
the Participant shall be entitled to a distribution of his account in
accordance with the rules set forth in this Article V. For purposes of
this Section 5.01, total and permanent disability means the inability of a
Participant by reason of physical or mental disability to engage in his
current or a reasonably related occupation available with the Employers.
The Committee shall determine the existence of total and permanent
disability pursuant to uniform rules consistently applied to all
Participants in like circumstances.
Section 5.02. Death Benefits. The Participant's Beneficiary
shall be entitled to the remaining undistributed balance in the
Participant's account in the event of the Participant's death.
Section 5.03. General Rules Regarding Form and Time of
Distribution.
(a) With respect to any Participant the value of whose account
does not exceed and has never exceeded $3,500, the Participant or
Beneficiary shall receive a single sum cash payment. The distribution
shall be made as soon as practicable following the Participant's
termination of employment or death.
(b) With respect to any Participant the value of whose account
exceeds or has ever exceeded $3,500, the Participant or Beneficiary shall
receive a single sum cash payment or such alternate payment form (if any)
as may be described in Appendix A as being available to such Participant
or Beneficiary and which the Participant or Beneficiary may elect. The
distribution shall be made as soon as practicable following the date on
which the Participant submits to the Committee a properly completed and
executed distribution election form. In the case of a married
Participant, the Participant's election with respect to the form and time
of benefit payment shall be given effect only if the Participant's spouse
as of the benefit commencement date has consented, within the ninety (90)
day period preceding benefit commencement, to the Participant's election
in writing on such form as the Committee may from time to time prescribe,
with such consent witnessed by a notary public or a Plan representative
appointed by the Committee. If the Participant has not submitted to the
Committee a properly completed and executed distribution election form
(including applicable spousal consent) prior to the Participant's
attainment of age sixty-five (65), distribution shall be made to the
Participant in the form of a single sum cash payment as soon as
practicable following the Participant's attainment of age sixty-five (65).
(c) The amount distributed to a Participant or Beneficiary
shall be based upon the value of the Participant's account as of the
business day immediately preceding the date on which distribution is made.
Pending distribution of the Participant's account, the account shall
continue to be invested in accordance with the Participant's investment
direction (or changes in investment direction) made in accordance with
Article IV.
Section 5.04. Distribution Legal Requirements. Notwithstanding
the general distribution rules described in Section 5.03, distribution of
a Participant's account is subject to the following special rules:
(a) Mandatory Distribution Date for Benefits Payable to the
Participant. Distribution of a Participant's account must be made or
commence no later than sixty (60) days following the end of the Plan Year
in which the Participant attains age sixty-five (65) or terminates
employment, whichever occurs later. Further, effective April 1, 1990,
benefits hereunder shall be paid to a Participant no later than the April
1 following the Plan Year in which such Participant attains the age of
seventy and one-half (70-1/2), even if he is then still employed, unless the
Participant attained age seventy and one-half (70-1/2) before January 1, 1988
and was not such a five percent (5%) owner (as defined in Code Section
416) during any Plan Year after the Plan Year in which age sixty-five and
one-half (65-1/2) was attained.
(b) Special Rules Applicable to Death Benefit Distributions.
Benefit payments to a Beneficiary shall be completed by December 31 of the
calendar year in which occur the fifth anniversary of a Participant's
death except:
(i) where the Participant had commenced receipt of
installment benefit payments (for any
Participant to whom the installment
distribution option is available in accordance
with Appendix A) prior to his death, the
Beneficiary may continue receiving installment
payments provided that the Participant's
remaining interest is distributed to the
Beneficiary at least as rapidly as under the
distribution method in effect at the
Participant's death; or
(ii) where the Participant's remaining interest is
payable to (or for the benefit of) a
Beneficiary and distribution of such interest
(A) begins by December 31 of the calendar year
in which occur the first anniversary of the
Participant's death [or if such Beneficiary is
the Participant's spouse, by December 31 of the
calendar year in which the Participant would
had been age seventy and one-half (70-1/2) had he
lived] and (B) occurs over a period not
exceeding the Beneficiary's life expectancy.
(c) Incorporation of Section 401(a)(9). The provisions of the
Plan are intended to comply with Code Section 401(a)(9) which prescribes
certain rules regarding minimum distributions and requires that death
benefits be incidental to retirement benefits. All distributions under
the Plan shall be made in conformance with Code Section 401(a)(9)
requirements which are incorporated herein by reference. The provisions
of the Plan governing distributions are, however, intended to apply in
lieu of any default provisions prescribed in Code Section 401(a)(9) which
shall otherwise override any Plan provisions inconsistent with such Code
Section.
Section 5.05. Payment for Minor or Incompetent Person. In the
event that any amount is payable under the Plan to a minor or to any
person deemed by the Committee to be incompetent, either mentally or
physically, such payment shall be made for the benefit of such minor or
incompetent person in any of the following ways, as determined in the
Committee's sole discretion: (i) to the legal representative of such
minor or incompetent person; (ii) directly to such minor or incompetent
person; or (iii) to some near relative of such minor or incompetent person
to be used for the latter's benefit. The Committee shall not be required
to see to the proper application of any such payment made to any person
pursuant to the provisions of this Section 5.05.
Section 5.06. Withdrawals For Reasons Other Than Financial
Hardship. (a) Withdrawals Following Attainment of Age 59 1/2 and 60
Months of Participation. While employed by the Company or an Affiliate, a
Participant who has attained age 59 1/2, and who has been a Participant in
the Plan for at least sixty (60) months, may make application to the
Committee to withdraw (in increments of $100) all or any portion of his
account; provided that if the Participant's account balance is less than
$500, the Participant may only withdraw the entire value of his account.
An application for withdrawal shall be on such form and completed in such
manner as the Committee may prescribe in accordance with uniform and
nondiscriminatory rules. A withdrawal pursuant to this Section 5.06(a)
shall be deducted from the Participant's subaccounts in the following
order, with each subaccount being exhausted before amounts are deducted
from the next subaccount: (1) Supplemental Contributions; (2) Rollover
Contributions; (3) Basic Deposits; (4) Matching Contributions; and (5)
Deferred Profit Sharing Contributions. In the event that the subaccount
from which a withdrawal is being made is invested in more than one
Investment Fund, the Investment Fund or Funds from which the withdrawal is
made shall be determined in accordance with uniform and nondiscriminatory
rules established by the Committee.
(b) While employed by the Company or an Affiliate, a
Participant may make application to the Committee to withdraw (in
increments of $100) all or any portion of his Supplemental Contributions
and/or Rollover Contributions subaccounts; provided that if the
Participant's balance in his Supplemental Contributions and Rollover
Contributions subaccounts is less than $500, the Participant may only
withdraw the entire value of these subaccounts. An application for
withdrawal shall be on such form and completed in such manner as the
Committee may prescribe in accordance with uniform and nondiscriminatory
rules. A withdrawal pursuant to this Section 5.06(b) shall be deducted
first from the Participant's Supplemental Contributions subaccount, and
once such subaccount is exhausted, from the Participant's Rollover
Contributions subaccount. In the event that the subaccount from which a
withdrawal is being made is invested in more than one Investment Fund, the
Investment Fund or Funds from which the withdrawal is made shall be
determined in accordance with uniform and nondiscriminatory rules
established by the Committee.
(c) The Committee shall approve a Participant's withdrawal
request only if, in the case of a married Participant, the Participant's
spouse has consented to the withdrawal within the ninety (90) day period
preceding the withdrawal, with such consent witnessed by a notary public
or a Plan representative appointed by the Committee.
Section 5.07. Hardship Withdrawals. (a) In the event that a
Participant, while actively employed, incurs --
(i) an immediate and heavy financial need while employed
by the Company or an Affiliate and after having been a
Participant in the Plan for at least one (1) year; and
(ii) the need cannot be satisfied by other resources
reasonably available to the Participant --
the Participant may make application to the Committee to
withdraw (in increments of $100) from his account. A withdrawal pursuant
to this Section 5.07(a) shall be deducted from the Participant's
subaccounts in the following order, with each subaccount being exhausted
before amounts are deducted from the next subaccount: (1) Supplemental
Contributions; (2) Rollover Contributions; (3) Deferred Profit Sharing
Contributions; (4) Matching Contributions; and (5) Basic Deposits.
Earnings on Basic Deposits (and Matching Contributions to the extent that
such contributions are considered under the average deferral percentage
test described in Section 3.07) are not available for withdrawal. In the
event that the subaccount from which a withdrawal is being made is
invested in more than one Investment Fund, the Investment Fund or Funds
from which the withdrawal is made shall be determined in accordance with
uniform and nondiscriminatory rules established by the Committee.
(b) A Participant satisfies Section 5.07(a)(i) if and only if
the Participant requests a withdrawal for one of the following reasons:
(i) unreimbursed medical expenses described in Code
Section 213(d) that are incurred by the
Participant, his spouse or dependent (as
defined in Code Section 152), or expenses that
are necessary for these individuals to obtain
medical care;
(ii) costs directly related to the purchase
(excluding mortgage payments) of a principal
residence for the Participant;
(iii) payment of tuition and related educational fees
for the next twelve (12) months of post-
secondary education for the Participant, his
spouse, children or dependents; or
(iv) payments necessary to prevent the eviction of
the Participant from his principal residence or
foreclosure on the mortgage of that residence.
(c) A Participant satisfies Section 5.07(a)(ii) if and only if:
(i) the hardship withdrawal is not in excess of the
amount of the Participant's immediate and heavy
financial need, including, to the extent
permitted by rules established by the
Committee, any amounts necessary to pay
federal, state or local income taxes or
penalties reasonably anticipated to result from
the withdrawal;
(ii) the Participant has obtained all distributions
(other than hardship withdrawals) and all non-
taxable loans (determined at the time of the
loan) currently available under this Plan or
any other plan of the Company and any
Affiliate;
(iii) The Participant's Basic Deposits and
Supplemental Contributions under this Plan and
all elective deferrals or employee
contributions under any other qualified or non-
qualified pension, profit sharing, retirement
or deferred compensation plan (other than
mandatory contributions to a defined benefit
plan) maintained by the Company or any
Affiliate shall be suspended for at least
twelve (12) months following the hardship
withdrawal. Upon completion of the twelve (12)
month minimum suspension period, the
Participant, if he desires to resume Basic
Deposits and/or Supplemental Contributions, may
again file a Participation election with the
Committee or its delegate in accordance with
Section 3.01. A timely filed and properly
completed revised participation election shall
become effective as of the first day of the
month following the date on which it is filed
with the Committee or its delegate, or as soon
thereafter as is administratively convenient,
and once effective, shall continue in effect
until modified, suspended or terminated in
accordance with the terms of the Plan.
(iv) The Participant's Basic Deposits under this
Plan and all elective deferrals or employee
contributions under any other qualified or non-
qualified pension, profit, sharing retirement
or deferred compensation plan (other than
mandatory contributions to a defined benefit
plan) maintained by the Company or any
Affiliate for the Participant's taxable year
following the year of the hardship withdrawal
shall not exceed the limit in effect for such
year under Section 402(g) of the Code, reduced
by the Participant's Basic Deposits and other
elective deferrals for the year in which the
hardship withdrawal occurred.
(d) The Committee shall approve a Participant's withdrawal
request only if, in the case of a married Participant, the Participant's
spouse has consented to the withdrawal within the ninety (90) day period
preceding the withdrawal, with such consent witnessed by a notary public
or a Plan representative appointed by the Committee.
(e) The Committee may establish such rules and requirements as
it deems necessary or appropriate to ensure that the provisions of this
Section 5.07 satisfy applicable legal requirements. The Committee may
also establish such other rules and requirements as it deems to be
appropriate or desirable with respect to the terms and conditions of a
withdrawals under this Section 5.07.
Section 5.08. Loans to Eligible Borrowers. (a) Terms and
Conditions. Upon written application to the Committee, which is
responsible for administering the Plan's loan program, an eligible
Borrower [as defined in subsection (d) immediately below] may borrow
against his vested account balance no loan request shall be for less than
one thousand dollars ($1,000); and at no time shall a loan be made if the
amount of such loan when added to the total amount of all other loans then
outstanding against that Borrower's account exceeds the lesser of (i) or
(ii) immediately below:
(i) fifty thousand dollars ($50,000), reduced by
the highest total balance of the Borrower's
outstanding loans from the Plan including
accrued interest thereon) during the twelve
(12) month period ending on the date on which
such loan is to be made; or
(ii) fifty percent (50%) of the Borrower's vested
account balance as of the last Valuation Date
preceding the loan proceeds distribution,
reduced by any distributions made since such
Valuation Date; provided, however, that prior
to October 18, 1989, this amount shall not be
less than the lesser of (A) ten thousand
dollars ($10,000) or (B) one hundred percent
(100%) of the Borrower's vested account
balance.
All loans must be approved in writing by the Committee and shall bear
interest at a rate commensurate with the rate which would be charged by
commercial lenders for similar loans in accordance with Department of
Labor Regulations Section 2550.408b-1, as determined by the Committee;
provided, however, that loans granted prior to October 18, 1989 shall bear
interest at any reasonable rate as determined by the Committee; provided,
further, that the rate of interest shall not exceed any limitations on
interest rates imposed by any federal or state law which are applicable to
a loan made by the Plan. Payments of the loan's interest and principal
shall be by payroll deductions and shall be made each payroll period so as
to provide substantially level amortization of the loan over its term;
provided, however, that in the case of a Borrower who is not actively
employed by the Employers, the foregoing payment requirement shall be
applied on the basis of monthly checks being received from such Borrower.
The term of the loan shall be such period as may be agreed upon by the
Borrower and the Committee, but shall not exceed five (5) years in
duration. A Borrower may refinance a loan only once in a twelve (12)
month period. A Borrower may, however, prepay the outstanding balance of
any loan to him in full at any time without penalty. In the case of an
actively employed Borrower, all loans to him shall be due and payable upon
his termination of employment with the Affiliates; thus, no distribution
shall be made to the Borrower or his Beneficiary, as applicable, until any
unpaid loan, including interest is liquidated. Every loan applicant shall
receive a clear statement of the charges involved in each loan
transaction, including the dollar amount and annual interest rate or the
finance charge.
(b) The Committee shall approve a Participant's loan request
only if, in the case of a married Participant, the Participant's spouse
has consented to the loan within the ninety (90) day period preceding the
loan, with such consent witnessed by a notary public or a Plan
representative appointed by the Committee.
(c) Loan Accounting and Default. Amounts loaned to a Borrower
pursuant to subsection (a) immediately above shall be deducted from the
Borrower's vested subaccount balances (other than an existing loan
subaccount balance) in the following order, with each subaccount being
exhausted before amounts are deducted from the next subaccount: (1)
Supplemental Contributions; (2) Rollover Contributions; (3) Basic
Deposits; (4) Matching Contributions; and (5) Deferred Profit Sharing
Contributions. In the event that the subaccount from which a loan is
being made is invested in more than one Investment Fund, the Investment
Fund or Funds from which the loan is made shall be determined in
accordance with uniform and nondiscriminatory rules established by the
Committee. All loans made pursuant to this Section 5.08 shall be
investments for the benefit of the Borrower's account to be treated as a
segregated loan subaccount, and all interest and principal paid thereon
shall be credited to the Participant's other subaccounts in the reverse
order in which the loan proceeds were deducted from the Participant's
subaccounts. In the event that the Borrower does not repay such loan
within the period prescribed, the Committee shall notify the Borrower in
writing of the default; provided, however, that with respect to any loan
granted or renewed after October 18, 1989, such loan shall be deemed to be
in default if the Borrower fails to make two (2) or more consecutive
payments. If the Borrower fails to cure the default by making all
necessary payments within thirty (30) days of such written notice, the
Committee may direct the Trustee to charge the entire outstanding balance
of such loan (including accrued interest), or any portion thereof, from
the Borrower's account at such time as will not risk disqualification of
the Plan under the Code, and such account shall be reduced by the amount
so charged. If that action does not result in total repayment of the
remaining balance of such loan (including accrued interest), the Borrower
shall be liable for the balance. In any event, to the extent permitted by
applicable Code and ERISA requirements, the Participant's total account
balance shall be security for the loan until it is fully repaid.
(d) Automatic Suspension Upon Default. In the event that a
Borrower defaults on an outstanding loan, the Borrower's ability to make
Basic Deposits and Supplemental Contributions shall be suspended for a
period of at least twelve (12) months following the default as if such
default had constituted a hardship withdrawal under Section 5.07(c)(iii).
(e) Administrator Authority. In the sole discretion of the
Committee, further limitations on the number, dollar amount, and repayment
of loans hereunder may be imposed on a uniform and nondiscriminatory
basis, together with any other rules and regulations deemed appropriate,
including the assessment of processing and/or servicing fees against the
Borrower's account.
(f) Borrower Definition. This Section 5.08 shall apply only to
an individual who (i) is either actively employed by the Employers or a
"party in interest" with respect to the Plan, as defined in ERISA Section
3(14) and (ii) has an account balance in the Plan attributable to either
his own participation herein or the participation of a deceased
Participant of whom such individual is a Beneficiary; provided, however,
that prior to October 18, 1989, only an actively employed Participant with
an account balance in the Plan shall be deemed to be a Borrower. Such an
individual is referred to above in this Section 5.08 as "Borrower".
Section 5.09. Transfer of Eligible Rollover Distributions. (a)
In the case of any distribution that constitutes an "eligible rollover
distribution" as defined in Section 402(f)(2)(A) of the Code, the
Committee shall provide the Participant or Beneficiary with the option of
(i) receiving the distribution directly, (ii) having the distribution
transferred to an individual retirement account or other eligible
retirement plan that accepts such transfers, or (iii) to the extent
required under regulations issued by the Secretary of the Treasury, a
combination of (i) and (ii).
(b) If the Participant or Beneficiary timely elects the
transfer option and provides the Committee with such information as the
Committee may prescribe regarding the transferee plan or account,
including the name of the transferee plan or account and the identity of
the trustee or custodian, the transfer shall be accomplished, unless the
Committee has promulgated a contrary rule, by delivering to the
Participant or Beneficiary a check, for the full amount of the
distribution, made payable to the trustee or custodian of the transferee
plan or account. The Participant or Beneficiary shall then be responsible
for delivering the check to the trustee or custodian of the transferee
plan.
(c) If the Participant or Beneficiary elects payments made
directly to the Participant or Beneficiary, distribution shall be
accomplished by delivering to the Participant or Beneficiary a check, for
the amount of the distribution less applicable withholding, made payable
to the Participant or Beneficiary.
(d) If the Participant or Beneficiary fails to make a timely
election under this Section 5.09, or if the Participant or Beneficiary
elects the transfer option but fails to provide the Committee with
appropriate information to enable the Committee to implement the transfer,
the Committee shall, subject to applicable consent requirements, cause the
Participant's or Beneficiary's distribution to be paid directly to the
Participant or Beneficiary in accordance with Section 5.09(c) above.
(e) The Committee need not offer the transfer option described
in this Section 5.09 in the case of any "eligible rollover distribution"
that has been exempted from the transfer requirements under rules and
regulations issued (whether in proposed, temporary or final form) by the
Secretary of the Treasury. In addition, the Committee may promulgate
additional rules and regulations, including rules and regulations
governing the time by which elections must be made, that it determines to
be necessary or desirable to administer the provisions of this Section
5.09.
ARTICLE VI. ADMINISTRATION AND PLAN COMMITTEE
Section 6.01. Appointment of Members. The Committee shall
consist of at least three (3) persons from time to time appointed by the
Board and serving at the pleasure of the Board. Any vacancies on the
Committee, whether caused by termination of employment with the Employers,
death, resignation, removal or other reason shall be promptly filled by
the Board, but shall not affect the Committee's authority to act hereunder
pending such Board action.
Section 6.02. Responsibility and Authority of the Committee.
Unless otherwise specifically provided under Section 6.07 hereof, the
Committee shall have, in addition to its other duties and powers specified
herein, full and complete authority, responsibility and control over the
management, administration and operation of the Plan including, but not
limited to, the authority to
(i) formulate, issue and apply rules and
regulations;
(ii) interpret and apply the provisions of the Plan;
(iii) make appropriate determinations and
calculations;
(iv) authorize and direct distributions or benefit
payments;
(v) adopt and prescribe the use of necessary forms;
and
(vi) prepare and file reports, notices and any other
documents relating to the Plan which may be
required by law.
The Committee, the Board, the Trustee, and any Investment Manager,
respectively, shall exercise any authority allocated to each hereunder in
a manner consistent with ERISA and the applicable provisions of the Plan.
The Committee shall be deemed to be the Plan's "administrator" for all
purposes of ERISA and the Code. The Committee shall have the authority to
determine, in its sole and absolute discretion, eligibility for
participation and benefits under the Plan and the construction of the
Plan's terms; and, notwithstanding any other provision herein to the
contrary, any such determination shall be final and conclusive unless
arbitrary or capricious.
Section 6.03. Use of Professional Services. The Committee may
obtain the services of such attorneys, actuaries, accountants or other
persons it deems appropriate, any of whom may be persons who also render
services to any Employer, an Investment Manager or the Trustee. In any
such case, the Committee shall retain full and complete authority,
responsibility and control over the management, administration and
operation of the Plan, as provided under this Article VI.
Section 6.04. Fees and Expenses. Committee members who are
employees of any Employer shall serve without compensation but shall be
reimbursed for all reasonable expenses incurred in their capacity as
Committee members. Where the Committee utilizes services as provided by
Section 6.03 hereof, it shall review and approve fees and other costs for
these services. Such fees and costs and any other expenses incurred or
authorized by the Committee shall be paid by an Employer or from the Trust
Fund, as determined by the Committee and, to the extent paid from the
Trust Fund, shall be charged as determined by the Committee to the Trust
Fund as a whole or to an individual Participant's account.
Section 6.05. Organization and Procedure. The Committee shall
select from its members a chairperson (if not otherwise named by the
Company's Board) and such other officers as it deems appropriate.
Committee action on any matter shall be taken on vote of at least a
majority of members present at any meeting or upon unanimous written
consent of all members without a meeting. Minutes of Committee meetings
shall be kept and all actions of the Committee shall be recorded in such
minutes or other appropriate written form. The Committee may establish
such other procedures and operating rules as it deems appropriate.
Section 6.06. Delegation of Authority and Responsibility. (a)
The Committee may delegate to any one (1) or more of its members the
authority to execute documents on behalf of the Committee and to represent
the Committee in any matters or dealings involving the Committee. Any
such delegation of authority shall be set forth in writing.
(b) Employees of any Employer who are not Committee members may
perform such duties and functions relating to the Plan, including handling
claims under subsection (a) immediately above, as the Committee shall
direct and supervise. It is expressly provided, however, that the
Committee retains full and exclusive authority over and responsibility for
any such activities by other employees, and nothing contained in this
subsection (b) shall be construed to confer upon any such employee any
discretion, authority or control respecting the management, administration
and operation of the Plan.
Section 6.07. Claims Procedure. (a) A Participant or
Beneficiary who believes that he is then entitled to benefits hereunder in
an amount greater than he is receiving or has received may file, or have
his duly authorized representative file, a claim for such benefits by
writing directly to the Committee at the address specified in Section 6.08
hereof. The Committee may prescribe a form for filing such claims, and if
it does so, a claim shall not be deemed properly filed unless such form is
used, but the Committee shall provide a copy of such form to any person
whose claim for benefits is improper solely for this reason. Such claims
shall be referred in accordance with Section 6.07(b) hereof to one
committee member or such other person or persons the Committee selects,
who shall prepare an appropriate written response.
(b) Every claim which is properly filed shall be answered in
writing stating whether the claim is granted or denied. Such written
response shall be provided to the claimant within ninety (90) days of the
claim's receipt by the Committee unless an extension of time is needed to
process the claim in which case the Committee shall give the claimant
written notice of such need, the reason therefor and the length of such
extension which shall not exceed an additional ninety (90) days. If the
claim is wholly or partially denied, the specific reasons for denial and
reference to the pertinent Plan provisions shall be set forth in a written
notice to the claimant. Such notice shall also describe any information
necessary for the claimant to perfect an approval and an explanation of
the Plan's claim appeal procedure as set forth in subsection (c)
immediately below.
(c) Within sixty (60) days of the claimant's receipt of written
notice that a claim is denied, the claimant or his duly authorized
representative may file a written appeal to the Committee, including any
comments, statements or documents the claimant may wish to provide.
Appeals shall be considered by the entire Committee, less any member
responding to the initial claim, which shall make its decision with
respect to such appeal no later than the regularly scheduled Committee
meeting occurring at least thirty (30) days after such appeal is timely
filed; provided, however, that, if an extension of time is required to
process such appeal, written notice thereof shall be given to the claimant
prior to the commencement of such extension which shall not go beyond the
third regularly scheduled Committee meeting occurring after such filing.
In the event the claim is denied upon appeal, the Committee shall set
forth the reasons for denial and the pertinent Plan provisions in a
written decision. The Committee shall comply with any reasonable request
from a claimant for such documents or information relevant to his claim
prior to his filing an appeal.
Section 6.08. Communications. All requests, appeals,
designations, elections and other communications to the Committee shall be
in writing and shall be made by hand-delivering the same to the Committee
or by transmitting the same via the U.S. mail, certified, return receipt
requested, addressed as follows:
Johnson Worldwide Associates, Inc.
1326 Willow Road
P. O. Box 901
Sturtevant, WI 53177-0901
Attention: Administrative Committee,
Johnson Worldwide Associates
Retirement and Savings Plan and Trust
Section 6.09. Agent for Service of Process. The chairperson of
the Committee is hereby designated as the agent for service of legal
process with respect to all matters pertaining to the Plan and the Trust
Fund.
ARTICLE VII. TRUSTEE
Section 7.01. Appointment of Trustee. The Board of Directors
shall appoint an individual or group of individuals, a bank or trust
company as Trustee to administer all contributions paid into the Trust
Fund. The Trustee shall serve at the pleasure of the Board of Directors
and shall have such rights, powers and duties as are contained in the
Trust Agreement between the Company and the Trustee. The Trust Agreement,
as amended from time to time, shall form an integral part of the Plan.
Section 7.02. Trust Fund. All contributions and all other
cash, securities or other property received by the Trustee from time to
time and held by it shall constitute the Trust Fund. The Trust Fund shall
be held and invested upon such terms and in such manner as set forth in
the Plan and Trust Agreement. Except as provided in Section 7.03 below,
the Trustee shall have exclusive authority and control to manage and
control the assets of the Plan, subject to the terms of the Plan and Trust
Agreement.
Section 7.03. Investment Manager. The Company may appoint an
Investment Manager or Managers to manage all or any portion of the Trust
Fund in accordance with the following provisions:
(a) An Investment Manager so appointed shall be an investment
adviser registered under the Investment Advisers Act of 1940, a bank, as
defined in such Act, or an insurance company qualified to manage, acquire
and dispose of plan assets under the laws of more than one state. An
Investment Manager shall acknowledge in writing its appointment as a Plan
Fiduciary and shall serve until a proper resignation is received by the
Committee or until it is removed or replaced by the Committee.
(b) Upon its acknowledgment that it is a Plan Fiduciary, the
Investment Manager shall have sole responsibility for the investment of
the portion of the Trust Fund which it is appointed to manage. Neither
the Trustee nor any other Plan Fiduciary shall have any responsibility
for, or incur any liability for, the investment of such portion or for the
loss to, or diminution in value of, the Trust Fund resulting from any
action directed, taken or omitted by the Investment Manager.
(c) The Investment Manager shall furnish such periodic and
other reports to or the Committee as the Committee deems to be in the best
interests of the Trust. Neither the Committee nor any other Plan
Fiduciary shall be under any duty to question, but shall be entitled to
rely upon, any certificate, report, opinion, direction or lack of
direction provided by the Investment Manager and shall be fully protected
in respect of any action taken or suffered by them in reliance thereon.
ARTICLE VIII. FIDUCIARIES AND ALLOCATION OF RESPONSIBILITIES
Section 8.01. Fiduciaries. The Board, the Committee, any
Investment Manager and the Trustee shall be deemed to be the only
fiduciaries, named and otherwise, of the Plan and Trust Fund for all
purposes of ERISA. No named fiduciary designated in this Section 8.01
shall be required to give any bond or other security for the faithful
performance of its duties and responsibilities with respect to the Plan
and/or Trust Fund, except as may be required from time to time under
ERISA.
Section 8.02. Allocation of Fiduciary Responsibilities. The
fiduciary responsibilities (within the meaning of ERISA) allocated to each
named fiduciary designated in Section 8.01 hereof shall consist of the
responsibilities, duties, authority and discretion of such named fiduciary
which are expressly provided herein and in any related documents. Each
such named fiduciary may obtain the services of such legal, actuarial,
accounting and other assistants as it deems appropriate, any of whom may
be assistants who also render services to any other named fiduciary, the
Plan and/or any Employer; provided, however, that where such services are
obtained, the named fiduciary shall not be deemed to have delegated any of
its fiduciary responsibilities to any such assistant but shall retain full
and complete authority over and responsibility for any activities of such
assistant. The Board, the Trustee, any Investment Manager, the Committee
and any individual members thereof shall not be responsible for any act or
failure to act of any other one of them except as may be otherwise
specifically provided under ERISA.
Section 8.03. General Limitation on Liability. Neither the
Board, the Committee, the Trustee, any Investment Manager nor any other
person or entity, including the Company and its shareholders, directors
and employees, guarantees the Trust Fund in any manner against loss or
depreciation and none of them shall be jointly or severally liable for any
act or failure to act or for anything whatever in connection with the Plan
and the Trust Fund, or the administration thereof, except and only to the
extent of liability imposed because of a breach of fiduciary
responsibility specifically prohibited under ERISA.
Section 8.04. Multiple Fiduciary Capacities. Any person or
group of persons may serve in more than one (1) fiduciary capacity with
respect to the Plan and/or the Trust Fund.
ARTICLE IX. AMENDMENT AND TERMINATION
Section 9.01. Amendment. (a) The Company shall have the right
by action of the Board to amend the Plan at any time and in any manner
consistent with ERISA, except as such authority is reserved to the
Committee under subsection (b) immediately below; provided, however, that
any amendment which increases the duties or responsibilities of the
Trustee shall be effective only with the Trustee's consent.
(b) The Committee shall have the authority to amend the Plan in
any respect it deems necessary to comply with ERISA or to obtain a
determination letter or ruling from the Internal Revenue Service. Any
amendment may be retroactive to the extent permitted by the Code and
ERISA. The Employers and the Board delegate such authority to modify,
alter, or amend the Plan to the Committee and shall be deemed to have
consented to any modification, alteration or amendment made by the
Committee under this Section 9.01.
(c) Notwithstanding subsections (a) and (b) immediately above
to the contrary, no amendment to the Plan shall decrease a Participant's
accrued benefit or vested percentage therein or eliminate an optional form
of a previously accrued benefit, except to the extent permitted by the
Code and ERISA.
(d) Each Employer other than the Company shall be deemed to
have delegated full authority and power to modify, alter or amend the
Plan, the Trust Fund and/or this Agreement, and to take any other action
in regard thereto which is deemed necessary or appropriate, to the Board,
the Committee and/or the Company, as applicable, and to have consented to
any modification, alteration, amendment or such action made or taken by
the Board, the Committee and/or the Company hereunder without the
necessity of any formal approval or other action by such other Employer.
No such other Employer shall need to be a signatory party to this
Agreement or any other written document pertaining to the Plan.
Section 9.02. Termination. The Company shall have the right,
at any time, to terminate the Plan, in whole or in part, by action of the
Board. Also, each Employer other than the Company shall have the right by
action of its board of directors to terminate the Plan as applied to such
Employer.
Section 9.03. Vesting and Distribution of Assets upon
Termination. Upon the total or partial termination of the Plan, or in the
event of permanent discontinuance of contributions to the Plan by an
Employer, the portion of the Trust Fund allocable to the affected
Participants and their Beneficiaries shall be fully vested and
nonforfeitable to the extent of the termination or discontinuance. The
Committee in any such case shall direct the Trustee to distribute, at such
time and in such manner as the Committee shall determine, in accordance
and consistent with Article V hereof, to the Participants and their
Beneficiaries all amounts credited to their accounts.
ARTICLE X. GENERAL PROVISIONS
Section 10.01. Participants To Furnish Information. Each
Participant entitled to benefits under the Plan shall furnish to the
Committee such evidence, data or information as the Committee considers
necessary or desirable in order to properly administer the Plan.
Section 10.02. Non-Guarantee of Employment or Other Benefits.
Neither the establishment of the Plan, nor any modification or amendment
hereof, nor the payment of benefits hereunder shall be construed as giving
any Participant or other person whomsoever any legal or equitable right
against any Employer, the Board, the Committee, any Investment Manager, or
the Trustee, or the right to payment of any benefits hereunder (unless the
same shall be specifically provided herein) or as giving any employee the
right to be retained in the service of any Employer.
Section 10.03. Mergers, Consolidations and Transfers of Plan
Assets. In the case of any merger, consolidation with, or transfer of
assets or liabilities to any other plan, each Participant must be entitled
(if the Plan then terminated) to receive a benefit immediately after the
merger, consolidation, or transfer which is equal to or greater than the
benefit the Participant would have been entitled to receive immediately
before the merger, consolidation, or transfer (if the Plan then
terminated) pursuant to the requirements of ERISA and the Code.
Section 10.04. Spendthrift Clause. Subject to Section 10.09
hereof, no Participant, former Participant or Beneficiary entitled to
benefits hereunder shall have the right to transfer, assign, alienate,
anticipate, pledge or encumber any part of such benefits, nor shall such
benefits, or any part of the Plan assets or any contract from which such
benefits are payable, be subject to seizure by legal process by any
creditor of such Participant, former Participant or Beneficiary. In the
event that such Participant or other person entitled to such benefits, or
such creditor thereof, shall attempt to effect a division as hereinabove
described, of any such benefit, the Plan may pay over to or apply on the
behalf of such Participant, former Participant or Beneficiary, all or any
part of such benefits to which such person would otherwise have been
entitled hereunder.
Section 10.05. Exclusive Benefit. All contributions made under
the Plan shall be paid to the Trust Fund and all property and funds of the
Trust Fund allocable to the Plan, including income from investments and
from all other sources, shall be managed solely in the interest of
Participants and Beneficiaries and for the exclusive purpose of:
(i) providing benefits to Participants and
Beneficiaries; and
(ii) defraying reasonable expenses of administering
the Plan.
Section 10.06. Successors and Assigns. The Plan shall be
binding upon the successors and assigns of each Employer.
Section 10.07. Committee Member and Trustee Indemnification.
The Company shall indemnify each member of the Committee and any employee
of any Employer serving as Trustee and hold them harmless from the
consequences of their acts or conduct in their capacity as Committee
members or Trustee, except to the extent that such consequences are the
result of the Committee member's or employee's willful misconduct or lack
of good faith.
Section 10.08. Limitation on Claims Against Trust Fund. No
Participant or any other person shall have any right to, or interest in,
any part of the Trust Fund upon termination of his employment or
otherwise, except as provided under the Plan, and then only to the extent
of the amounts due and payable to such person out of the Trust Fund. All
payments as provided for in this Plan shall be made solely out of the
Trust Fund and neither any Employer, any Investment Manager, the Trustee,
nor any member of the Board or Committee shall be liable therefor in any
manner. No payment shall be made hereunder which would be in violation of
any applicable law or governmental regulation as determined by the
Committee.
Section 10.09. Qualified Domestic Relations Orders.
Notwithstanding Section 10.04 hereof, or any other provision herein to the
contrary, the Trustee may recognize a qualified domestic relations order
with respect to child support, alimony payments or marital property rights
if such order contains sufficient information for the Committee to
determine that it meets the applicable requirements of Code Section
414(p). The Committee shall establish written procedures concerning the
notification of interested parties and the determination of the validity
of such orders. Notwithstanding any other provision herein to the
contrary, if any such order so directs, distribution of benefits to the
alternative payee may be made at a time not permitted for distribution to
the Participant involved with such order.
Section 10.10. Top-Heavy Plan Restrictions. (a)
Notwithstanding any provision to the contrary herein, in accordance with
Code Section 416, if the Plan is a top-heavy plan for any Plan Year, then
the provisions of this Section 10.10 shall be applicable. The Plan is
"top-heavy" for a Plan Year if as of its "determination date" (i.e. the
last day of the preceding Plan Year or the last day of the Plan's first
Plan Year, whichever is applicable), the total present value of the
accrued benefits of key employees [as defined in Code Section 416(i)(1)]
exceeds sixty percent (60%) of the total present value of the accrued
benefits of all employees under the Plan [excluding those of former key
employees and employees who have not performed any services during the
preceding five (5) year period] [as such amounts are computed pursuant to
Code Section 416(g) using a five percent (5%) interest assumption and a
1971 GAM mortality assumption for a defined benefit plan] unless the Plan
can be aggregated with other plans maintained by the applicable controlled
group in either a permissive or required aggregation group and such group
as a whole is not top-heavy. Any nonproportional subsidies for early
retirement and benefit options are counted assuming commencement at the
age at which they are most valuable. In addition, the Plan is top-heavy
if it is part of a required aggregation group which is top-heavy. Any
plan of a controlled group may be included in a permissive aggregation
group as long as together the aggregated plans satisfy the Code Sections
401(a)(4) and 410 discrimination requirements. Plans of a controlled
group which must be included in a required aggregation group include any
plan in which a key employee participates or participated at any time
during the determination period (regardless of whether the plan has
terminated) and any plan which enables such a plan to meet the Code
Section 401(a)(4) or 410 discrimination requirements. The present values
of aggregated plans are determined separately as of each plan's
determination date and the results aggregated for the determination dates
which fall in the same calendar year. A "controlled group" for purposes
of this Section 10.10 includes any group of employers aggregated pursuant
to Code Section 414(b), (c) or (m), which includes an Employer. The
calculation of the present value shall be done as of a valuation date,
which for a defined contribution plan is the determination date and for a
defined benefit plan is the date as of which funding calculations are
generally made within the twelve (12) month period ending on the
determination date. Solely for the purpose of determining if the Plan, or
any other plan included in a required aggregation group of which this Plan
is a part, is top-heavy within the meaning of Code Section 416(g), the
accrued benefit of an employee other than a key employee within the
meaning of Code Section 416(i)(1) shall be determined under (i) the
method, if any, that uniformly applies for accrual purposes under all
plans maintained by the controlled group, or (ii) if there is no such
method, as if such benefit accrued not more rapidly than the slowest
accrual rate permitted under the fractional accrual rate of Code Section
411(b)(1)(C).
(b) If the Plan is top-heavy in a Plan Year, non-key employee
Participants who have not separated from service at the end of such Plan
Year will receive allocations (not including salary reduction
contributions) at least equal to the lesser of three percent (3%) of
compensation (as defined in Code Section 415) for such year or the
percentage of such compensation allocated on behalf of the key employee
for whom such percentage was the highest for such year (including any
salary reduction contributions). If the controlled group maintains both
this Plan and a defined benefit plan which cover the same non-key
employee, such employee will only be entitled to the defined benefit plan
minimum and not to the defined contribution plan minimum.
(c) If the controlled group maintains a defined benefit plan
and this Plan which both cover one or more of the same key employees, and
if such plans are top-heavy, then the limitation incorporated in Section
3.11 hereof with respect to the Code Section 415(e) maximum benefit
limitations, shall be amended so that a one (1.0) adjustment on the dollar
limitation applies rather than a one and twenty-five hundredths (1.25)
adjustment. This subsection (d) shall not apply if the Plan is not "super
top-heavy" and if the minimum benefit requirements of subsection (c)
immediately above are met when two percent (2%) is changed to three
percent (3%) and twenty percent (20%) is changed to an amount not greater
than thirty percent (30%) which equals twenty percent (20%) plus one
percent (1%) for each year such plan is top-heavy. The Plan is "super
top-heavy" if the ratio referred to in subsection (a) immediately above
results in a percentage in excess of ninety percent (90%) rather than a
percentage in excess of sixty percent (60%).
Section 10.11. Effective Date of Plan Provisions. Except as
otherwise provided herein or in Board or Committee resolutions pursuant to
which any Plan amendment is adopted, any amendment to the Plan shall apply
solely to Participants who have an Hour of Employment after the effective
date of such amendment. The rights of a Participant who terminated
employment with the Employers prior to such effective date shall be
determined solely under the provisions of the Plan in effect on the date
of such termination. The provisions of the Plan restatement herein set
forth are effective as of October 1, 1989, except where an earlier or
later effective date may be specified for a particular provision with
respect to persons who are employed by the Employers on or after such
other effective date. In that regard, the following provisions shall
apply retroactively on and after October 1, 1988 for purposes of this
Plan:
(i) the leased employee exclusion in Section 2.02
hereof;
(ii) the Code Section 415 limitations in Section
3.11 hereof;
(iii) the average deferral percent (ADP) and average
contribution percentage (ACP) limitations in
Sections 3.07 and 3.08 hereof; and
(iv) the top-heavy plan restrictions in Section
10.10 hereof.
EXHIBIT 5
FOLEY & LARDNER
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
July 24, 1995
Johnson Worldwide Associates, Inc.
1326 Willow Road
Sturtevant, Wisconsin 53177
Ladies and Gentlemen:
We have acted as counsel for Johnson Worldwide Associates, Inc.,
a Wisconsin corporation (the "Company"), in connection with the
preparation of a Form S-8 Registration Statement (the "Registration
Statement") to be filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities
Act"), relating to 10,000 shares of the Company's Class A Common Stock,
$.05 par value per share (the "Class A Common Stock"), and interests in
the Johnson Worldwide Associates Retirement and Savings Plan (the "Plan")
which may be issued or acquired pursuant to the Plan.
In this regard, we have examined: (a) the Plan; (b) signed
copies of the Registration Statement; (c) the Company's Articles of
Incorporation and Bylaws, as amended to date; (d) resolutions of the
Company's Board of Directors relating to the Plan; and (e) such other
documents and records as we have deemed necessary to enable us to render
this opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the
laws of the State of Wisconsin.
2. It is presently contemplated that the shares of Class A
Common Stock to be acquired by the Plan will be purchased either in the
open market or directly from the Company or other private sources. To the
extent that the shares of Class A Common Stock acquired by the Plan shall
constitute shares issued by and purchased from the Company, such shares of
Class A Common Stock, when issued pursuant to the terms and conditions of
the Plan, and as contemplated in the Registration Statement, will be
validly issued, fully paid and nonassessable, except as otherwise provided
by Section 180.0622(2)(b) of the Wisconsin Statutes.
We consent to the use of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we
are "experts" within the meaning of Section 11 of the Securities Act or
within the category of persons whose consent is required by Section 7 of
said Act.
Very truly yours,
FOLEY & LARDNER
EXHIBIT 23.1
Independent Auditors' Consent
The Board of Directors
Johnson Worldwide Associates, Inc.:
We consent to incorporation by reference in the Registration Statement on
Form S-8 of Johnson Worldwide Associates, Inc. of our reports dated
November 10, 1994, relating to the consolidated balance sheets of Johnson
Worldwide Associates, Inc. and subsidiaries as of September 30, 1994 and
October 1, 1993, and the related consolidated statements of operations,
shareholders' equity and cash flows for each of the years in the three
year period ended September 30, 1994, and all related schedules, which
reports appear or are incorporated by reference in the September 30, 1994,
Annual Report on Form 10-K of Johnson Worldwide Associates, Inc.
KPMG Peat Marwick LLP
Milwaukee, Wisconsin
July 19, 1995
