As filed with the Securities and Exchange Commission on September __, 1997
Registration No. 33-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
AMERON INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 77-0100596
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
245 South Los Robles Avenue
Pasadena, California 91101
(Address, including zip code, of Principal Executive Offices)
AMERON, INC. 401(K) RETIREMENT SAVINGS PLAN
(Full title of the plan)
Gary Wagner
Chief Financial Officer
Ameron International Corporation
245 South Los Robles Avenue
Pasadena, California 91101
(626) 683-4000
(Name, address, and telephone
number, including area code, of agent for service)
Copies to:
Anna M. Graves, Esq.
Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street
Twenty-Third Floor
Los Angeles, California 90071
(213) 683-6000
<TABLE>
CALCULATION OF REGISTRATION FEE(1)
Proposed Proposed
Maximum Maximum
Title of Amount to be Offering Price Aggregate Amount of
Securities to be Registered Registered (1) Per Share (1) Offering Price (1) Registration Fee
<S> <C> <C> <C> <C>
Common Stock, par value
$2.50 per share 200,000 $64.69 $12,938,000 $3,920.61
Interests in the Plan (2) (2) (2) (2)
</TABLE>
(1) Estimated solely for calculating the amount of the registration fee,
pursuant to paragraphs (c) and (h) of Rule 457 of the General Rules and
Regulations under the Securities Act, on the basis of the average of
the high and low sale prices of such securities on the New York Stock
Exchange on September 22, 1997, which date is within five business days
prior to filing.
(2) 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, such interests constituting separate securities
required to be registered under the Securities Act and not
requiring a separate registration fee.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended
(the "Securities Act") and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement relates to 200,000 shares of Common Stock,
par value $2.50 per share (the "Common Stock") of Ameron International
Corporation, a Delaware corporation (the "Registrant"), being
registered for use under the Ameron, Inc. 401(k) Retirement Savings
Plan effective January 1, 1993 (as amended, the "Plan").
Item 3. Incorporation of Documents by Reference
The following documents are hereby incorporated into this
Registration Statement and made a part hereof by this reference:
(a) (1) The Annual Report on Form 10-K of the Registrant for the
fiscal year ended November 30, 1996, filed with the
Securities and Exchange Commission (the "Commission") on
February 28, 1997 pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act");
(a) (2) The Annual Report on Form 11-K of the Plan for the fiscal
year ended December 31, 1996 filed on September 26, 1997
with the Commission pursuant to the Exchange Act;
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered
by the Registrant's Annual Report on Form 10-K referred to in
(a) above; and
(c) The description of the Common Stock contained in the
Registrant's Form 8-B declared effective on July 14, 1986, as
amended.
In addition, all documents filed by the Registrant or the Plan with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act subsequent to the date of this Registration Statement, and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of the filing of such documents
with the Commission.
Item 4. Description of Securities
The class of securities to be offered is registered under Section
12 of the Exchange Act.
Item 5. Interests of Experts and Named Counsel
Not applicable.
Item 6. Indemnification of Officers and Directors
Section 145 of the General Corporation Law of Delaware empowers a
corporation to indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he or she is a director, officer, employee or
agent of the corporation or is or was serving at the request of the
corporation as director, officer, employee or agent of another corporation
or enterprise. Depending on the character of the proceeding, a corporation
may indemnify against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with such action, suit or proceeding if the person identified acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interest of the corporation and, with respect to any criminal action
or proceeding, had no cause to believe his or her conduct was unlawful.
In the case of an action by or in the right of the corporation, no
indemnification may be made in respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his or her duty to the corporation unless
and only to the extent that a Court of Chancery or the court in which such
action or suit was brought shall determine that despite the adjudication of
liability such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper. Section 145 further provides that
to the extent that a director or officer of a corporation has been successful
in the defense of any action, suit or proceeding referred to above or in the
defense of any claim, issue or matter herein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred
by him or her in connection therewith.
The Certificate of Incorporation and Bylaws of the Registrant
provide, in effect, that, to the fullest extent permitted by Delaware General
Corporation Law, the Registrant has the power to indemnify any person who
was or is a party or is threatened to be made a party to any action, suit or
proceeding of the type described above by reason of the fact that he or she
is or was a director, officer, employee or agent of the Registrant.
The Registrant's Certificate of Incorporation relieves its
directors from monetary damages to the Registrant or its stockholders for
breach of such director's fiduciary duty as a director to the full extent
permitted by the Delaware General Corporation Law. Under Section 102(7) of
the Delaware General Corporation Law a corporation may relieve its
directors from personal liability to such corporation or its stockholders for
monetary damages for any breach of their fiduciary duty as directors
except (i) for a breach of the duty of loyalty, (ii) for failure to act in
good faith, (iii) for intentional misconduct or knowing violation of law,
(iv) for willful or negligent violations of certain provisions in the
Delaware General Corporation Law imposing certain requirements with
respect to stock purchases, redemptions and dividends or (v) for any
transaction from which the director derived an improper personal
benefit.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The exhibits filed as part of this Registration Statement are as
follows:
Exhibits
4.1 Ameron, Inc. 401(k) Retirement Savings Plan effective
January 1, 1993, as amended.
23.(a) Consent of Arthur Andersen LLP.
24.1 Power of Attorney (contained on signature page of
Registration Statement)
The undersigned Registrant hereby undertakes that it has submitted the
Plan to the Internal Revenue Service ("IRS") in order to obtain a determination
letter that the Plan is qualified under Section 401 of the Internal
Revenue Code and to make any changes in the Plan required by the IRS in
order to issue such a determination letter.
Item 9. Undertakings
(1) The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs
(a)(i) and (a)(ii) above do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this
Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment to this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the
termination of the offering.
(2) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bonafide offering thereof.
(3) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
<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 Pasadena, State of California, on
September 24 , 1997.
AMERON INTERNATIONAL CORPORATION
/s/ Gary Wagner
By: -----------------------
Gary Wagner
Senior Vice President/Chief Financial Officer
The Plan. Pursuant to the requirements of the Securities Act of
1933, the trustees (or other persons who administer the employee benefit plan)
have duly caused this egistration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Pasadena, State of
California, on September 24, 1997.
AMERON, INC. 401(K) RETIREMENT SAVINGS
PLAN
By: Ameron International Corporation
as Plan Administrator
/s/ Gary Wagner
By: ----------------------------
Gary Wagner, Chairman
Retirement Benefits and Insurance Committee
<PAGE>
SIGNATURES/POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, That each person whose
signature appears below constitutes and appoints Gary Wagner as his true
and lawful attorney-in-fact and agent with full powers of substitution
and resubstitution, for him and in his name, place and stead, in any and
all capacities to sign any or 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 attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the foregoing, as fully to
all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
/S/ JAMES S. MARLEN
- ------------------- Chairman/President/Chief Executive
JAMES S. MARLEN Officer (Principal Executive Officer) September 24, 1997
and Director
/S/ GARY WAGNER
- ------------------- Senior Vice President/Chief Financial
GARY WAGNER Officer (Principal Financial Officer) September 24, 1997
/S/ DEWEY H. NORTON
- ------------------- Vice President, Controller
DEWEY H. NORTON (Principal Accounting Officer) September 24, 1997
/S/ STEPHEN W. FOSS
- -------------------- Director September 24, 1997
STEPHEN W. FOSS
/S/ A. FREDERICK GERSTELL
- -------------------- Director September 24, 1997
A. FREDERICK GERSTELL
/S/ J. MICHAEL HAGAN
- -------------------- Director September 24, 1997
J. MICHAEL HAGAN
/S/ TERRY L. HAINES
- ------------------- Director
TERRY L. HAINES September 24, 1997
/S/ JOHN F. KING
- ------------------- Director September 24, 1997
JOHN F. KING
/S/ RICHARD J. PEARSON
- ------------------- Director September 24, 199
RICHARD J. PEARSON
/S/ DAVID L. SLINEY
- ------------------- Director Septemer 24, 1997
DAVID L. SLINEY
<PAGE>
EXHIBIT INDEX
Exhibits
4.1 Ameron, Inc. 401(k) Retirement Savings Plan effective
January 1, 1993, as amended.
23.1 Consent of Arthur Andersen LLP
24.1 Power of Attorney (contained on signature
page of Registration Statement)
<PAGE>
AMERON, INC.
401(k) RETIREMENT SAVINGS PLAN
Effective January 1, 1993
<PAGE>
PREAMBLE
The Ameron, Inc. 401(k) Retirement Savings Plan (the "Plan") as stated
herein is established for the benefit of Ameron employees.
The provisions of the Plan are subject to a determination by the Internal
Revenue Service that the Plan is qualified under Section 401(a) of the
Internal Revenue Code of 1986, as amended. It is further intended that the
Plan also conform to the requirements of Title I of the Employee Retirement
Income Security Act of 1974, as amended from time to time.
<PAGE>
Table of Contents Page
ARTICLE 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Account . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Affiliated Employer . . . . . . . . . . . . . . . . . . . 1
1.3 Ameron Beneflex Plan. . . . . . . . . . . . . . . . . . . 1
1.4 Average Contribution Percentage . . . . . . . . . . . . . 1
1.5 Average Deferral Percentage . . . . . . . . . . . . . . . 1
1.6 Beneficiary . . . . . . . . . . . . . . . . . . . . . . . 1
1.7 Board . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.8 Break in Service. . . . . . . . . . . . . . . . . . . . . 1
1.9 Code. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.10 Committee . . . . . . . . . . . . . . . . . . . . . . . . 2
1.11 Company . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.12 Compensation. . . . . . . . . . . . . . . . . . . . . . . 2
1.13 Computation Period. . . . . . . . . . . . . . . . . . . . 3
1.14 Deferral Percentage . . . . . . . . . . . . . . . . . . . 3
1.15 Disability or Disabled Participant. . . . . . . . . . . . 4
1.16 Effective Date. . . . . . . . . . . . . . . . . . . . . . 4
1.17 Eligible Employee . . . . . . . . . . . . . . . . . . . . 4
1.18 Eligibility Service . . . . . . . . . . . . . . . . . . . 4
1.19 Employee. . . . . . . . . . . . . . . . . . . . . . . . . 4
1.20 Employee Pretax Contribution Account . . . . . . . . . . 4
1.21 Employer. . . . . . . . . . . . . . . . . . . . . . . . . 4
1.22 Employer Contribution Account . . . . . . . . . . . . . . 4
1.23 Employer Contribution . . . . . . . . . . . . . . . . . . 4
1.24 Employment Commencement Date. . . . . . . . . . . . . . . 4
1.25 Entry Date. . . . . . . . . . . . . . . . . . . . . . . . 5
1.26 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.27 Family Member . . . . . . . . . . . . . . . . . . . . . . 5
1.28 Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.29 Funding Agent . . . . . . . . . . . . . . . . . . . . . . 5
1.30 Highly Compensated Employee . . . . . . . . . . . . . . . 5
1.31 Hour of Service . . . . . . . . . . . . . . . . . . . . . 7
1.32 Loan Account. . . . . . . . . . . . . . . . . . . . . . . 7
1.33 Leased Employee . . . . . . . . . . . . . . . . . . . . . 7
1.34 Limitation Year . . . . . . . . . . . . . . . . . . . . . 7
1.35 Named Fiduciary . . . . . . . . . . . . . . . . . . . . . 7
1.36 Nonhighly Compensated Employee. . . . . . . . . . . . . . 7
1.37 Normal Retirement Age . . . . . . . . . . . . . . . . . . 7
1.38 One-Year Break in Service . . . . . . . . . . . . . . . . 8
1.39 Participant . . . . . . . . . . . . . . . . . . . . . . . 8
1.40 Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.41 Plan Sponsor. . . . . . . . . . . . . . . . . . . . . . . 9
1.42 Plan Year . . . . . . . . . . . . . . . . . . . . . . . . 9
1.43 Predecessor Employer. . . . . . . . . . . . . . . . . . . 9
1.44 Predecessor to this Plan. . . . . . . . . . . . . . . . . 9
1.45 Pretax Contributions. . . . . . . . . . . . . . . . . . . 9
1.46 Qualified Nonelective Contributions . . . . . . . . . . . 9
1.47 Qualified Nonelective Contribution Account. . . . . . . . 9
1.48 Rollover Account. . . . . . . . . . . . . . . . . . . . . 9
1.49 Spouse. . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.50 Termination . . . . . . . . . . . . . . . . . . . . . . 9
1.51 Termination Date. . . . . . . . . . . . . . . . . . . . 9
1.52 Valuation Date. . . . . . . . . . . . . . . . . . . . . 10
1.53 Vesting Service . . . . . . . . . . . . . . . . . . . . 10
1.54 Year of Eligibility or Vesting Service. . . . . . . . . 10
1.55 Year of Service . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 2 SERVICE COUNTING RULES. . . . . . . . . . . . . . . . . . . 11
2.1 Hours of Service General Rule . . . . . . . . . . . . . . 11
2.2 Hours of Service Equivalencies. . . . . . . . . . . . . . 12
2.3 Eligibility Service . . . . . . . . . . . . . . . . . . . . 12
2.4 Vesting Service . . . . . . . . . . . . . . . . . . . . . . 12
2.5 Service Credit with Prior Employer. . . . . . . . . . . . . 13
ARTICLE 3 ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . 14
3.1 Eligibility . . . . . . . . . . . . . . . . . . . . . . . . 14
3.2 Eligibility Upon Reemployment . . . . . . . . . . . . . . . 14
3.3 Notification of Eligibility to Participate and Entry into
Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 4 PRETAX CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . 15
4.1 Employee Pretax Contributions . . . . . . . . . . . . . . . 15
4.2 Change of Contribution Level. . . . . . . . . . . . . . . . 15
4.3 Suspension of Contributions . . . . . . . . . . . . . . . . 15
4.4 Manner of Contributions . . . . . . . . . . . . . . . . . . 16
4.5 Remittance and Allocation of Pretax Contributions . . . . . 16
4.6 Rollover Contributions. . . . . . . . . . . . . . . . . . . 16
ARTICLE 5 EMPLOYER CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . 18
5.1 Employer Contributions. . . . . . . . . . . . . . . . . . . 18
ARTICLE 6 NONDISCRIMINATION REQUIREMENTS
AND MAXIMUM ANNUAL ADDITIONS. . . . . . . . . . . . . . . . 20
6.1 Nondiscrimination Requirements for Pretax Contributions . . 20
6.2 Excess Pretax Contributions . . . . . . . . . . . . . . . . 21
6.3 Family Aggregation Rules for Pretax Contributions . . . . . 21
6.4 Additional Nondiscrimination Requirements . . . . . . . . . 22
6.5 Excess Contributions. . . . . . . . . . . . . . . . . . . . 22
6.6 Additional Nondiscrimination Limitation.. . . . . . . . . . 23
6.7 Leveling Method . . . . . . . . . . . . . . . . . . . . . . 24
6.8 Aggregation of Plans. . . . . . . . . . . . . . . . . . . . 25
6.9 Code Section 415 Limits . . . . . . . . . . . . . . . . . . 25
6.10 Miscellaneous Nondiscrimination Requirements. . . . . . 25
ARTICLE 7 PARTICIPANT ACCOUNTS. . . . . . . . . . . . . . . . . . . . 28
7.1 Participant Accounts. . . . . . . . . . . . . . . . . . . . 28
7.2 Allocations to Accounts . . . . . . . . . . . . . . . . . . 28
ARTICLE 8 INVESTMENT OF CONTRIBUTIONS . . . . . . . . . . . . . . . . 29
8.1 Investment Funds. . . . . . . . . . . . . . . . . . . . . . 29
8.2 Election of Investment Fund for Contributions . . . . . . . 29
8.3 Change in Election of Investment Fund for Future
Contributions . . . . . . . . . . . . . . . . . . . . . . . 29
8.4 Change in Election of Investment Fund for Past Contributions29
ARTICLE 9 WITHDRAWALS AND LOANS . . . . . . . . . . . . . . . . . . . 30
9.1 Withdrawals of Pretax Contributions . . . . . . . . . . . . 30
9.2 Hardship Withdrawals. . . . . . . . . . . . . . . . . . . . 30
9.3 Valuation and Payment of Withdrawals. . . . . . . . . . . . 31
9.4 Loan Provision. . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 10 ENTITLEMENT TO BENEFITS . . . . . . . . . . . . . . . . . . 34
10.1 Retirement. . . . . . . . . . . . . . . . . . . . . . . 34
10.2 Disability. . . . . . . . . . . . . . . . . . . . . . . 34
10.3 Termination of Employment . . . . . . . . . . . . . . . 34
10.4 Vesting on Plan Termination . . . . . . . . . . . . . . 34
10.5 Forfeitures . . . . . . . . . . . . . . . . . . . . . . 35
10.6 Death . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.7 Beneficiary . . . . . . . . . . . . . . . . . . . . . . 35
10.8 Small Payments. . . . . . . . . . . . . . . . . . . . . 36
ARTICLE 11 DISTRIBUTION OF BENEFITS. . . . . . . . . . . . . . . . . . 37
11.1 Form of Benefit Payment . . . . . . . . . . . . . . . . 37
11.2 Benefit Commencement. . . . . . . . . . . . . . . . . . 37
11.3 Minimum Required Distributions. . . . . . . . . . . . . 37
11.4 Eligible Rollover Distribution Provision. . . . . . . . 38
ARTICLE 12 PLAN ADMINISTRATION . . . . . . . . . . . . . . . . . . . . 40
12.1 Appointment of Committee. . . . . . . . . . . . . . . . 40
12.2 Powers and Duties of the Committee. . . . . . . . . . . 40
12.3 Actions by the Committee. . . . . . . . . . . . . . . . 41
12.4 Interested Committee Members. . . . . . . . . . . . . . 42
12.5 Indemnification . . . . . . . . . . . . . . . . . . . . 42
12.6 Conclusiveness of Action. . . . . . . . . . . . . . . . 42
12.7 Payment of Expenses . . . . . . . . . . . . . . . . . . 42
12.8 Claim Procedure . . . . . . . . . . . . . . . . . . . . 42
ARTICLE 13 ESTABLISHMENT OF FUND . . . . . . . . . . . . . . . . . . . 44
13.1 Funding Agreement . . . . . . . . . . . . . . . . . . . 44
ARTICLE 14 AMENDMENT, TERMINATION, AND MERGER OF THE PLAN. . . . . . . 45
14.1 Right to Amend the Plan . . . . . . . . . . . . . . . . 45
14.2 Right to Terminate the Plan . . . . . . . . . . . . . . 45
14.3 Plan Mergers, Consolidations, and Transfers . . . . . . 45
14.4 Amendment of Vesting Schedule . . . . . . . . . . . . . 46
ARTICLE 15 TOP-HEAVY PLAN REQUIREMENTS . . . . . . . . . . . . . . . . 47
15.1 General Rule. . . . . . . . . . . . . . . . . . . . . . 47
15.2 Vesting Provision . . . . . . . . . . . . . . . . . . . 47
15.3 Coordination with Other Plans . . . . . . . . . . . . . 47
15.4 Top-Heavy Plan Definition . . . . . . . . . . . . . . . 47
15.5 Change in 415(e) Limits . . . . . . . . . . . . . . . . 49
15.6 Key Employee. . . . . . . . . . . . . . . . . . . . . . 49
15.7 Non-Key Employee. . . . . . . . . . . . . . . . . . . . 51
15.8 Collective Bargaining Rules . . . . . . . . . . . . . . 51
ARTICLE 16 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 52
16.1 Limitation on Distributions . . . . . . . . . . . . . . 52
16.2 Limitation on Reversion of Contributions. . . . . . . . 52
16.3 Voluntary Plan. . . . . . . . . . . . . . . . . . . . . 52
16.4 Nonalienation of Benefits . . . . . . . . . . . . . . . 53
16.5 Inability to Receive Benefits . . . . . . . . . . . . . 53
16.6 Missing Persons . . . . . . . . . . . . . . . . . . . . 53
16.7 Limitation of Third-Party Rights. . . . . . . . . . . . 53
16.8 Invalid Provisions. . . . . . . . . . . . . . . . . . . 54
16.9 One Plan. . . . . . . . . . . . . . . . . . . . . . . . 54
16.10 Use and Form of Words . . . . . . . . . . . . . . . . . 54
16.11 Headings. . . . . . . . . . . . . . . . . . . . . . . . 54
16.12 Governing Law . . . . . . . . . . . . . . . . . . . . . 54
<PAGE>
ARTICLE 1
DEFINITIONS
1.1 "Account" shall mean, with respect to any Participant, his Employee
Pretax Contribution Account and Employee Contribution Account, Loan
Account, and Rollover Account and shall, as to each such Account,
include any subaccount established thereunder.
1.2 "Affiliated Employer" means Ameron, Inc. and any of its subsidiaries
or affiliates, and any other entity which is a member of a "controlled
group of corporations," a group under "common control," or an
"affiliated service group," all as determined under Code Sections
414(b), (c), (m), and (o). Notwithstanding the foregoing, an
Affiliated Employer shall not include any domestic or foreign
subsidiaries or affiliates as designated by the Company for purposes
of participation in this Plan. This Plan specifically excludes the
Participation of Employees of APCI.
1.3 "Ameron Beneflex Plan" means the Company's benefit program qualified
under Code Section 125.
1.4 "Average Contribution Percentage" shall mean, for any Plan Year, the
average of the ratios determined under Sections 6.4, 6.6, and 6.10 for
(i) the group of Eligible Employees who are Highly Compensated
Employees and (ii) the group of Eligible Employees who are Nonhighly
Compensated Employees.
1.5 "Average Deferral Percentage" shall mean, for any Plan Year, the
average of the ratios determined under Sections 6.1 and 6.6 for (i)
the group of Eligible Employees who are Highly Compensated Employees
and (ii) the group of Eligible Employees who are Nonhighly Compensated
Employees.
1.6 "Beneficiary" shall mean the person or persons, entity or entities
(including a trust(s)), or estate that shall be entitled to receive
benefits payable pursuant to the provisions of this Plan by virtue of
a Participant's death, pursuant to the provisions of Section 10.6.
1.7 "Board" shall mean the Board of Directors of Ameron, Inc. except that
any action taken by the Board may also be taken by a duly authorized
committee of the Board.
1.8 "Break in Service" shall mean a Termination followed by the completion
of a One-Year Break in Service.
1.9 "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
1.10 "Committee" shall mean the committee of individuals appointed by
the Board to be responsible for the operation and administration
of the Plan in accordance with the provisions of Article 12.
1.11 "Company" means Ameron, Inc., a Delaware corporation.
1.12 "Compensation" shall mean an Employee's actual wages paid,
salaries, fees for professional services, and other amounts
received (without regard to whether or not an amount is paid in
cash) for services actually rendered in the course of employment
with the Employer to the extent that amounts are includable in
gross income but shall exclude pay for overtime hours, bonuses,
commissions, and the Company's contributions toward insurance,
retirement, and other fringe benefit or employee welfare plans or
programs or severance pay arrangements. Compensation with respect
to any Employee shall also exclude:
(a) Any compensation directly paid or payable as fringe benefits;
(b) Any contributions made by the Employer for or on account of
the Employees under this Plan or under any other employee
benefit plan other than any specifically excepted herein;
(c) Any compensation paid or payable by reason of services
performed prior to the date the Employee becomes a
Participant; and
(d) Any compensation paid or payable by reason of services
performed after the date the Employee ceased to be a
Participant.
(e) For Plan Years beginning after December 31, 1988, Compensation
shall exclude amounts in excess of two hundred thousand
dollars ($200,000) except as such limit is adjusted for cost
of living in accordance with the provisions of Code
Section 401(a)(17). In determining the Compensation of a
Participant for purposes of this limitation, the rules of Code
Section 414(q)(6) shall apply, except in applying such rules,
the term "family" shall include only the spouse of the
Participant and any lineal descendants of the Participant who
have not attained age 19 before the close of the year. If, as
a result of the application of such rules the adjusted two
hundred thousand dollars ($200,000) limitation is exceeded,
then the limitation shall be prorated among the affected
individuals in proportion to each such individual's
Compensation as determined under this Section prior to the
application of this limitation. Notwithstanding the above
provisions to the contrary, compensation earned but not paid
in a Plan Year may include amounts earned but not paid in a
Plan Year because of the timing of pay periods and pay days if
such amounts are paid during the first few weeks of the next
following Plan Year, the amounts are included on a uniform and
consistent basis with respect to all similarly situated
Employees, and no Compensation is included in more than one
Limitation Year. If compensation for any prior Plan Year is
taken into account in determining a Participant's benefits for
the current year, the Compensation for such prior year is
subject to the applicable annual compensation limit in effect
for that prior Plan Year. For this purpose, for years
beginning before January 1, 1990, the applicable annual
compensation limit is two hundred thousand dollars ($200,000).
(f) Compensation for commissioned sales employees (i.e., Enmar and
PCD salesmen) shall be the lesser of (1) base pay plus
commissions; or (2) $80,000.
1.13 "Computation Period" shall mean the Plan Year, except for purposes
of determining eligibility, in which case, it shall mean the
twelve (12) month period commencing with the Employee's Employment
Commencement Date or most recent date of rehire following a Break
in Service. If the Eligible Employee fails to satisfy the
requirements for eligibility in that twelve (12) month period, the
Computation Period for determining eligibility for that Eligible
Employee shall thereafter be the Plan Year that begins within such
twelve (12) month period and each Plan Year thereafter.
1.14 "Deferral Percentage" shall mean, for any Plan Year, for each
Eligible Employee, whose Entry Date on which he first became
entitled to participate in accordance with Section 3.3 has
occurred, the ratio, for each such Eligible Employee, of Pretax
Contributions, if any, made to the Plan by the Employer on behalf
of such Eligible Employee for such Plan Year to such Eligible
Employee's compensation (within the meaning of Code Section
414(s)) while eligible during such Plan Year. Notwithstanding any
other provision to the contrary, a Participant's Deferral
Percentage shall not exceed 15%. The Deferral Percentage shall be
determined by using such Eligible Employee's compensation (within
the meaning of Code Section 414(s)) for the Plan Year.
1.15 "Disability or Disabled Participant" shall mean a physical or
mental condition of such severity and duration as to entitle the
Participant to disability benefits under the Employer's long-term
disability benefit plan.
1.16 "Effective Date" shall mean January 1, 1993.
1.17 "Eligible Employee" shall mean an Employee, who is entitled to
participate in the Plan upon meeting the requirements in
accordance with Section 3.1, other than (a) an Employee whose
terms and conditions of employment are the subject of a collective
bargaining agreement between an Employer and a collective
bargaining agent unless and until participation in the Plan shall
have been negotiated for and agreed to in writing by the
representatives of such Employer and the collective bargaining
agent.
1.18 "Eligibility Service" shall mean Service as counted for
determining an Employee's right to become a Participant in the
Plan, as determined in accordance with Article 2.
1.19 "Employee" shall mean any person who is a common-law employee and
has been designated by Ameron as an Employee pursuant to his or
her company employment records.
1.20 "Employee Pretax Contribution Account" shall mean the value of
Pretax Contributions made on behalf of each Participant shall be
accounted for in Employee Pretax Account.
1.21 "Employer" shall mean Ameron, Inc. and any other Affiliated
Employer which, with the consent of the Board, shall adopt this
Plan for some or all of its Eligible Employees. "Employer" when
used in this Plan shall refer to such adopting entities either
individually or collectively, as the context may require.
1.22 "Employer Contribution Account" shall mean the value of Employee
Contributions made on behalf of the Employee shall be accounted
for in the Employer Contribution Account.
1.23 "Employer Contribution" shall mean the contribution made by the
Employer, if any, under Section 5.1.
1.24 "Employment Commencement Date" shall mean the date on which an
Employee is first credited with an Hour of Service.
1.25 "Entry Date" shall mean the first day of the payroll period
coincident with or immediately following January 1, April 1, July
1 and October 1 in every calendar year during which the Plan is in
effect.
1.26 "ERISA" shall mean the Employee Retirement Income Security Act of
1974 (Public Law Section 93-406), as amended from time to time.
1.27 "Family Member" shall mean an individual described in Code Section
414(q)(6)(B), except that in determining whether Compensation paid
to Family Members exceeds two hundred thousand dollars ($200,000),
as indexed under Code Section 401(a)(17), the term "Family Member"
shall include only the Spouse of the Eligible Employee and any
lineal descendants who have not attained age 19 before the close
of the Plan Year.
1.28 "Fund" shall mean any fund provided for in a trust arrangement, or
a combination of a trust arrangement and one or more insurance
company contracts, which is held by a Funding Agent, to which
contributions under the Plan on and after the Effective Date will
be made, and out of which benefits are paid to Participants or
otherwise provided for.
1.29 "Funding Agent" shall mean a trustee or insurance company or any
duly appointed successor or successors selected to hold a Fund.
1.30 "Highly Compensated Employee" shall mean an Employee who performs
service during the Determination Year and is described in one or
more of the following groups in accordance with IRS regulations:
(a) An Employee who is a five percent (5%) owner as defined in
Code Section 416(i)(1)(iii), at any time during the
Determination Year or the Look-back Year.
(b) An Employee who receives Compensation in excess of $75,000
during the Look-back Year. (The $75,000 limitation will be
adjusted annually for increases in the cost of living in
accordance with Code Section 415(d)).
(c) An Employee who receives Compensation in excess of $50,000
during the Look-back Year and is a member of the top-paid
group for the Look-back Year. (The $50,000 limitation will be
adjusted annually for increases in the cost of living in
accordance with Code Section 415(d)).
(d) An Employee who is an officer within the meaning of Code
Section 416(i) during the Look-back Year and who receives
Compensation in the Look-back Year greater than fifty percent
(50%) of the dollar limitation in effect under Code Section
415(b)(1)(A), for the calendar year in which the Look-back
Year begins. Notwithstanding the foregoing, no more than 50
or, if lesser, the greater of three (3) employees or ten
percent (10%) of the Employees shall be treated as officers;
provided, however, if no officer is described in this
subparagraph (d), then the highest-paid officer for such year
shall be treated as herein described.
(e) An Employee who is (i) described in paragraph (b), (c) or (d)
above, and (ii) one of the 100 Employees who receives the most
Compensation from the Employer during the Determination Year,
when the Determination Year is substituted for the Look-back
Year in paragraphs (b), (c), or (d).
A former Employee shall be treated as a Highly Compensated
Employee if such former Employee had a separation year prior to
the Determination Year and was a Highly Compensated active
Employee for either (1) such Employee's separation year or (2) any
Determination Year ending on or after the Employee's 55th
birthday.
A separation year is the Determination Year in which the Employee
separates from service. Notwithstanding the foregoing, an
Employee who separated from service before January 1, 1987, is a
Highly Compensated Employee only if he was a five percent (5%)
owner or received Compensation in excess of $50,000 during (i) the
Employee's separation year (or the year preceding such separation
year), or (ii) any year ending on or after such Employee's 55th
birthday (or the last year ending before such Employee's 55th
birthday).
Notwithstanding anything to the contrary in this Plan, Code
Sections 414(b), (c), (m), (n) and (o) are applied before
determining whether an Employee is Highly Compensated.
For purposes of this section,
(a) "Compensation" shall mean compensation as defined in Code
Section 414(q)(7) and the regulations thereunder.
(b) "Determination Year" shall mean the Plan Year for which the
determination of who is Highly Compensated is being made.
(c) "Look-back Year" shall mean the 12-month period preceding the
Determination Year.
(d) "Top-paid Group" shall mean the top twenty percent (20%) of
Employees when rated on the basis of Compensation paid during
the year. The number of Employees in the group will be
determined in accordance with Code Section 414(q)(8).
The Employer shall have the right to elect to determine Highly
Compensated Employees by reference to calendar year Compensation, in
accordance with IRS regulations. If the Employer so elects, the
Employer must make such election with respect to all other qualified
plans it maintains.
1.31 "Hour of Service" shall mean an hour of service calculated in
accordance with the provisions of Article 2.
1.32 "Loan Account" shall mean the value of a Participant's loan
balance accounted for in his loan account.
1.33 "Leased Employee" shall mean any person who renders personal
services to an Affiliated Employer and who is described in Code
Section 414(n)(2) by reason of providing such services, other than
a person described in Code Section 414(n)(5). Contributions or
benefits provided a Leased Employee by the leasing organization
that are attributable to services performed for the Affiliated
Employer shall be treated as provided by the Affiliated Employer.
A Leased Employee shall not be considered an Employee of the
Affiliated Employer if Leased Employees do not constitute more
than 20 percent of the Affiliated Employer's nonhighly compensated
workforce.
1.34 "Limitation Year" shall mean the 12-month period ending on each
December 31. All qualified plans maintained by the Employer must
use the same Limitation Year. If the Limitation Year is amended
to a different 12-consecutive-month period, the new Limitation
Year must begin on the date within the Limitation Year in which
the amendment is made.
1.35 "Named Fiduciary" shall mean a fiduciary designated as such under
the provisions of Article 12.
1.36 "Nonhighly Compensated Employee" shall mean an Eligible Employee
other than a Highly Compensated Employee.
1.37 "Normal Retirement Age" shall mean the time a Participant attains
age 65.
1.38 "One-Year Break in Service" shall mean a Plan Year computation
period in which an Employee is credited with 500 Hours of Service
or less. An Employee shall not be deemed to have incurred a
One-Year Break in Service if the Employee is absent from Service
because of an authorized leave of absence granted in writing for
medical, disability, vacation, education or such other
circumstances approved by the Committee in a uniform and
nondiscriminatory manner.
In the case of an Employee who is absent from work for any period by
reason of:
(a) The pregnancy of the Employee,
(b) The birth of a child of the Employee,
(c) The placement of a child with the Employee in connection with
the adoption of such child by the Employee, or
(d) The care of a child for a period beginning immediately
following such birth or placement,
the Plan shall include, solely for purposes of determining whether the
Employee has incurred a One-Year Break in Service, the Hours of
Service which would normally have been credited to the Employee but
for such absence, or in any case in which the Committee is unable to
determine the Hours of Service which would normally have been credited
to the Employee, eight (8) Hours of Service per day of absence,
provided, however, that the total number of hours treated in this
manner as Hours of Service shall not exceed 501 Hours of Service. The
hours described in the preceding sentence shall be credited in the
Plan Year in which the absence from work begins if the Employee would
be prevented from incurring a One-Year Break in Service in such period
solely because the period of absence is treated as Hours of Service as
provided above. Otherwise, the Hours of Service shall be credited on
behalf of the Employee in the immediately following Plan Year.
1.39 "Participant" shall mean an Eligible Employee who meets the
requirements for participation under Section 3.3 or an Employee or
former Employee for whom a Employee Pretax Contribution Account
and/or an Employer Account is maintained.
1.40 "Plan" shall mean the Ameron 401(k) Retirement Savings Plan, as
embodied herein, and any amendments thereto.
1.41 "Plan Sponsor" shall mean Ameron, Inc.
1.42 "Plan Year" shall mean the period beginning on January 1, 1993 to
December 31, 1993, and beginning each January 1 and ending each
December 31 thereafter.
1.43 "Predecessor Employer" shall mean, with respect to an Employee, an
organization or unit previously under the control of the Employer,
if the Employee was previously employed under it.
1.44 "Predecessor to this Plan" shall mean any plan for which this Plan
is a restatement, any plan which has been merged into this Plan or
any Predecessor to this Plan, or any other plan sponsored by an
entity which became an Affiliated Employer by acquisition or
merger, and which adopted this Plan or a Predecessor to this Plan
for any of its employees who had been participants in such other
plan.
1.45 "Pretax Contributions" shall mean the contributions that an
Employer contributes to the Plan on behalf of a Participant in
accordance with Section 4.1.
1.46 "Qualified Nonelective Contributions" shall mean the additional
contributions that an Employer may make to the Plan pursuant to
Article 6 to satisfy the nondiscrimination requirements on Pretax
and/or Employer Contributions.
1.47 "Nonelective Contribution Account" shall mean the value of
Nonelective Contributions made on behalf of Eligible Employees who
are Nonhighly Compensated Employees accounted for in their
Nonelective Contribution Account.
1.48 "Rollover Account" shall mean the value of qualified rollovers
made from a qualified retirement plan on behalf of an Eligible
Employee accounted for in their Rollover Account.
1.49 "Spouse" shall mean the wife of a male Participant or the husband
of a female Participant as determined under applicable State law.
1.50 "Termination" shall mean the cessation of active employment with
the Employer or an Affiliated Employer.
1.51 "Termination Date" shall mean the first date on which an Employee
ceases active employment with the Employer or any Affiliated
Employer.
1.52 "Valuation Date" shall mean the last business day of each calendar
quarter (March 31, June 30, September 30, and December 31).
1.53 "Vesting Service" shall mean Service as counted for determining a
Participant's right to vest in his Employer Account under Article
7, as determined under the rules of Article 2.
1.54 "Year of Eligibility or Vesting Service" shall mean a Year of
Service as determined under the appropriate Computation Period for
calculating Eligibility or Vesting Service under the rules of
Article 2.
1.55 "Year of Service" shall mean a twelve (12) month Computation
Period during which the Employee is credited with 1,000 or more
Hours of Service, under the rules of Article 2.
ARTICLE 2
SERVICE COUNTING RULES
2.1 Hours of Service General Rule. An Employee shall be credited with
an Hour of Service for:
(a) Each hour for which a person is directly or indirectly paid,
or entitled to payment, by an Affiliated Employer or a
Predecessor Employer for the performance of duties. These
hours shall be credited to the person during the appropriate
Computation Period in which the duties are performed;
(b) Each hour for which a person is directly or indirectly paid,
or entitled to payment, by an Affiliated Employer or a
Predecessor Employer for reasons other than for the
performance of duties (such as vacation, holiday, illness,
incapacity including disability, jury duty, military duty,
leave of absence or layoff). These hours shall be credited to
the Employee during the Computation Period in which the
nonperformance of duties occurs, but the total credit for any
single continuous period during which the employee performs no
duties (whether or not in a single Computation Period) of such
hours shall not exceed 501 hours. The computation of non-work
hours described in this subsection will be computed in
accordance with the provisions of the Department of Labor
Regulation Section 2530.200b-2; and
(c) Each hour for which back pay, irrespective of mitigation of
damages, has been either awarded or agreed to by an Affiliated
Employer or Predecessor Employer. These hours will be
credited to the person for the Plan Year to which the award or
agreement pertains.
(d) Each hour for which an Employee is not paid or entitled to
payment but during which he normally would have performed
duties for an Affiliated Employer during any period for which
he is eligible to receive benefits under the long-term
disability plan of an Affiliated Employer.
(e) Employment with other members of an affiliated service group
(under Code Section 414(m)), a controlled group of
corporations (under Code Section 414(b)), or a group of trades
or businesses under common control (under Code Section
414(c)), of which the Plan Sponsor is a member and any other
entity required to be aggregated with the Plan Sponsor
pursuant to Code Section 414(o). Hours of Service will also
be credited for any individual considered an Employee under
Code Sections 414(n) and 414(o).
2.2 Hours of Service Equivalencies. In calculating Hours of Service the
Committee may, in lieu of actual hour counting, use any of the
following equivalencies for classifications of employees for whom
exact hour counting would be administratively burdensome, provided
that, if the Committee decides to calculate Hours of Service based
upon any of the following equivalencies for any classification of
employees, the equivalencies shall be reasonable and
nondiscriminatory, and shall be consistently applied. The
equivalencies which may be used are:
(a) Days of Employment: One day of employment for which the
Employee would have been credited under the general rules with
at least one Hour of Service shall be equivalent to 10 Hours
of Service.
(b) Weeks of Employment: One week of employment for which the
Employee would have been credited under the general rules with
at least one Hour of Service shall be treated as 45 Hours of
Service.
(c) Semimonthly Payroll Periods: One semi-monthly payroll period
for which the Employee would have been credited under the
general rules with at least one Hour of Service shall be
treated as 95 Hours of Service.
(d) Months of Employment: One month of employment for which the
Employee would have been credited under the general rules with
at least one Hour of Service shall be treated as 190 Hours of
Service.
In interpreting the foregoing equivalencies the Committee shall rely
on Department of Labor Regulations Section 2530.200b-3.
2.3 Eligibility Service. An Eligible Employee shall be credited with a
Year of Eligibility Service if he performs 1,000 or more Hours of
Service during the applicable Computation Period or, if he fails to
perform 1,000 or more Hours of Service in that Computation Period, he
shall be credited with a Year of Eligibility Service if he performs
1,000 hours in any Computation Period commencing after his Employment
Commencement Date or rehire date. The date of rehire is the first day
on which the Employee is credited with an Hour of Service after the
first eligibility computation period in which the Employee incurs a
One-Year Break in Service.
2.4 Vesting Service. An Employee shall be credited with a Year of Vesting
Service for each Year of Service except that Vesting Service shall not
include:
(a) Pre-18 Service. Any Year of Service completed prior to the
date on which the Employee has attained age eighteen (18).
(b) Rule of Parity. In the case of an Employee who had never made
Pretax Contributions to the Plan and was not vested in his
Employer Account at his Termination Date and who has incurred
a number of consecutive One Year Breaks in Service equal to
the greater of five (5) or the number of Years of Service
credited to him prior to the first of such consecutive One-Year
Breaks in Service, Years of Service during Plan Years
prior to such Break in Service.
2.5 Service Credit with Prior Employer. If the Employer maintains the
Plan of a Predecessor Employer, service with such predecessor employer
will be treated as Service for the Employer as provided for under Code
Section 414(a) and the regulations thereunder.
<PAGE>
ARTICLE 3
ELIGIBILITY
3.1 Eligibility. An Eligible Employee shall become eligible to
participate in the Plan. An Eligible Employee may elect to become a
Participant in the Plan on any Entry Date.
3.2 Eligibility Upon Reemployment. A former Participant or a former
Eligible Employee who had met the eligibility requirements of Section
3.1 who is reemployed by the Employer as an Eligible Employee shall be
eligible to participate in the Plan as of his reemployment date. An
Eligible Employee who had not met the eligibility requirements of
Section 3.1 before his Termination Date shall be eligible to
participate in the Plan upon satisfaction of the requirements in
Section 3.1.
3.3 Notification of Eligibility to Participate and Entry into Plan. The
Committee shall notify each Eligible Employee of the eligibility
requirements and benefits under the Plan prior to the Entry Date he
first becomes entitled to participate. An Eligible Employee
(including a former Participant who is reemployed) who has satisfied
the eligibility requirements specified in this Article 3 may become a
Participant by filing an election to have Pretax Contributions made on
his behalf, in accordance with Section 4.1. Such Eligible Employee's
participation shall become effective on the Entry Date coincident with
or next following the date on which such Eligible Employee files his
election with the Committee or as soon as practicable thereafter. In
order to become a Participant, an Eligible Employee shall also be
required to make investment elections pursuant to Section 8.2 and to
designate a Beneficiary pursuant to Section 10.7.
ARTICLE 4
PRETAX CONTRIBUTIONS
4.1 Employee Pretax Contributions. Subject to the provisions of Article 6
and Section 9.2(e), a Participant may direct the Employer, in the
manner prescribed by the Committee, to make contributions to the Plan
on his behalf of a stated whole percentage of his Compensation. A
Participant's Pretax Contributions to this Plan and any other plan
qualified under Code Section 401(k) maintained by an Affiliated
Employer shall not exceed seven thousand dollars ($7,000) or such
higher amount as may be permitted under Code Section 402(g)(5) for any
taxable year.
If, on or before March 1 of any year, a Participant notifies the Plan
Administrator in writing, in accordance with Code Section
402(g)(2)(A), that all or a portion of the Pretax Contributions made
on his behalf is in excess of the dollar limit under Section 402(g)(5)
for the preceding taxable year of the Participant, the Plan
Administrator shall make a reasonable attempt to have such excess
Pretax Contributions and income allocable thereto distributed to the
Participant no later than the April 15 following such notification.
The income allocable to such excess Pretax Contribution shall be
determined in accordance with Proposed Reg. Section 1.402(g)-1(d)(5)
and will include income for the Plan Year for which the excess Pretax
Contribution was made and for the period between the end of such Plan
Year and the date of the distribution.
4.2 Change of Contribution Level. A Participant may, as prescribed by the
Committee, direct the Employer to change the rate of Pretax
Contributions made on his behalf. Changes may be made quarterly
during the Plan Year and shall become effective on the Entry Date
coincident with or next following the Participant's direction or as
soon as practicable thereafter.
4.3 Suspension of Contributions. A Participant may, as prescribed by the
Committee, notify the Employer to suspend the Pretax Contributions
made on his behalf. Suspensions may be made at any time during the
Plan Year and shall become effective on the Entry Date coincident with
or next following such notification or as soon as practicable
thereafter. A Participant shall notify the Employer to suspend the
Pretax Contributions made on his behalf as prescribed by the
Committee. Resumption of contributions shall commence on the Entry
Date coincident with or next following the notification or as soon as
practicable thereafter.
4.4 Manner of Contributions. All Pretax Contributions shall be in the
form of Employee-authorized payroll deductions. Such deductions shall
be made in whole percentages each payroll period, subject to the
change and suspension of contribution provisions of Sections 4.3 and
4.4. Subject to the limitations of Sections 4.1 and 4.2, each
Participant may elect contributions on his own behalf in whole
percentages from 2% to 15% of the Participant's Compensation for each
payroll period. Such Contributions shall be credited to the
Participant's Account and shall be made in accordance with the rules
established by the Committee.
4.5 Remittance and Allocation of Pretax Contributions. Pretax
Contributions shall be remitted to the Funding Agent by the Employer
as soon as practicable, but in no event more than ninety (90) days
after the end of the payroll period during which such Contributions
are made, and shall be allocated to each Participant's Employee Pretax
Contribution Account as of the next Valuation Date coincident with or
next following the end of the payroll period during which such
Contributions are made.
4.6 Rollover Contributions. An Employee may, subject to such uniform and
nondiscriminatory terms and conditions as may be established from time
to time by the Committee, request the Committee to authorize the
Funding Agent to accept a rollover of a distribution of the value of
the Employee's account or benefit from the qualified plan of a former
employer. A Rollover Contribution shall be accepted provided the
following conditions are met:
(a) The Rollover Contribution to this Plan is in cash;
(b) The Rollover Contribution does not include any employee
contributions;
(c) The Committee receives a letter from the Employee's former
employer stating that the distribution to the Employee is from
a plan qualified under Code Section 401(a) and that the
distribution is being made on account of the Employee's
severance of employment;
(d) The Employee makes a written statement that the Rollover
Contribution shall be made to this Plan within sixty (60) days
of his receipt of the distribution from the other qualified
plan and that the proposed Rollover Contribution, to the best
of his knowledge, meets all of the Code requirements for
rollover treatment.
The amount of the Rollover Contribution shall be held in the
Participant's Rollover Account. Such Account shall be invested in
accordance with Article 8 and shall be adjusted for debits and credits
in accordance with Section 7.2.
<PAGE>
ARTICLE 5
EMPLOYER CONTRIBUTIONS
5.1 Employer Contributions.
(a) For the Plan Year beginning January 1, 1993, and for each Plan
Year thereafter, at the discretion of the Board of Directors,
the Employer may contribute Company stock out of its income
for the current fiscal year and/or accumulated earned surplus
for such fiscal year before all federal income and excess
profits taxes to the Plan an amount that, when added to the
aggregate of available forfeitures under this Plan, equals the
sum of the amounts to be allocated during such Valuation
Period to the Employer Contribution Account of each
Participant. The allocation will be in Company stock equal in
value to the allocation dollar amount. The amount of stock
allocated to the Employer Contribution Account for each
Participant will equal 50% of the dollar value of the
Participant's matched contributions for such Valuation Period
to a maximum of 3% of a Participant's Compensation for such
Valuation Period. Notwithstanding any other provisions to the
contrary in this Plan, subsections (1) Employee Contributions
and (2) Qualified Nonelective Contributions shall be credited
to the Participant's Account as follows:
(1) Employer Matching Contributions shall be credited monthly
to the Participant's Account
(2) Qualified Nonelective Contributions shall be credited
annually, to the Participant's Account, if the Participant
is an active Participant on the last day of the Plan Year.
(b) Notwithstanding the foregoing, the sum of the contribution of
the Employer shall not exceed 3% of the total compensation
(after any salary reductions) and the Employee contribution
for any fiscal year shall not exceed an amount equal to 15% of
the total Compensation (after any salary reductions) otherwise
paid or accrued to all Participants employed by the Employer
for such Plan Year.
(c) In no event shall the Employer contribution attributable to
any Plan Year be so large as to cause the Annual Addition for
any Participant to exceed the amount permitted under this
Plan.
(d) In no event shall the Employer contribution for any fiscal
year exceed an amount which the Employer estimates will be
deductible under Code Section 404(a)(3) and, if applicable,
Code Section 404(a)(7).
(e) The Employer may, notwithstanding any other provision of this
Plan, make all contributions to the Plan without regard to
current or accumulated earnings and profits for the taxable
year or years ending with or within such Plan Year.
(f) Payment of Employer contributions for a Valuation Period
ending in or with the Employer's taxable year will be made at
any time during such taxable year or after its close, but not
later than the date, including extensions, on which the
Employer's federal income tax return is due with respect to
such taxable year.
(g) Each Employer contribution will be a complete discharge of the
financial obligations of the Employer under the Plan with
respect to the period for which it is made.
<PAGE>
ARTICLE 6
NONDISCRIMINATION REQUIREMENTS
AND MAXIMUM ANNUAL ADDITIONS
6.1 Nondiscrimination Requirements for Pretax Contributions. For any Plan
Year, the amount of Pretax Contributions must satisfy either
Subsection (a) or (b) as set forth below:
(a) The Average Deferral Percentage for Highly Compensated
Employees may not exceed one and twenty-five one-hundredths
(1.25) times the Average Deferral Percentage for Nonhighly
Compensated Employees.
(b) The Average Deferral Percentage for Highly Compensated
Employees
(1) May not exceed two (2) times the Average Deferral
Percentage for Nonhighly Compensated Employees, and
(2) May not exceed the Average Deferral Percentage for
Nonhighly Compensated Employees by more than two (2)
percentage points.
The Committee is empowered to monitor the Plan throughout the Plan
Year and decrease or suspend the amount of Pretax Contributions by
Highly Compensated Employees or any group of Highly Compensated
Employees made pursuant to Section 4.1. Any such decrease or
suspension shall also be effective for purposes of determining
Employer Matching Contributions to be made pursuant to Section 5.1.
The Employer may also, in its sole discretion, make Qualified
Nonelective Contributions on behalf of Eligible Employees who are
Nonhighly Compensated Employees in an amount sufficient to satisfy the
nondiscrimination requirements of this Section. Such contributions
shall be allocated based on the ratio which each such Eligible
Employee's Compensation bears to the total Compensation of all such
Eligible Employees for the Plan Year. Such additional contributions,
if any, shall be fully vested.
For purposes of performing the Average Deferral Percentage test,
Pretax Contributions must be made before the last day before the
twelve (12) month period immediately following the Plan Year to which
contributions relate.
The Employer shall maintain records sufficient to demonstrate
satisfaction of the Average Deferral Percentage test and the amount of
the Pretax Contributions used in such test.
6.2 Excess Pretax Contributions. If for any Plan Year it is determined
that the nondiscrimination requirements under Section 6.1 are not
satisfied:
(a) Certain Highly Compensated Employees shall have the Pretax
Contributions made on their behalf reduced retroactively in
accordance with the leveling method described in Section 6.7;
(b) At the Committee's sole discretion, a Highly Compensated
Employee who has had the Pretax Contributions made on his
behalf reduced under Subsection (a) shall have the amount of
such reduction treated as follows:
All or a portion of the amount of such reduction plus any
investment earnings allocable to such Pretax Contributions shall
be paid in cash to the Highly Compensated Employee. Payment shall
be made within two-and-one-half (2-1/2) months following the last
day of the Plan Year for which the reduction was necessary, if
practicable, but in no event later than the last day of the Plan
Year following such Plan Year. If such excess amounts are
distributed more than two-and-one-half (2-1/2) months after the
last day of the Plan Year in which such excess amounts arose, a
10 percent (10%) excise tax will be imposed on the Employer with
respect to such amounts. The income allocable to such excess
Pretax Contributions shall be determined in accordance with Reg.
Section 1.401(k)-1(f)(4)(ii) and will include income for the Plan
Year for which the excess Pretax Contributions were made but not
for the period between the end of such Plan Year and the date of
the distribution.
(c) Excess Pretax Contributions shall be treated as annual
additions under the Plan.
6.3 Family Aggregation Rules for Pretax Contributions. The family
aggregation rules of Code Section 414(q)(6) shall apply to any
Eligible Employee who is Highly Compensated and a five (5) percent
(5%) owner or one of the ten (10) most Highly Compensated Employees.
The Average Deferral Percentage for the Family Members, which are
treated as one Eligible Employee who is Highly Compensated, shall be
the Average Deferral Percentage determined by combining the Pretax
Contributions and Compensation of all eligible Family Members.
If the Average Deferral Percentage of a Highly Compensated Employee is
determined under the family aggregation rules, excess Pretax
Contributions shall be allocated among the Family Members in
proportion to the Pretax Contributions of each Family Member that were
combined to determine the Average Deferral Percentage rates.
6.4 Additional Nondiscrimination Requirements. For any Plan Year, the
amount of contributions must satisfy either Subsection (a) or (b) as
set forth below:
(a) The Average Contribution Percentage for Highly Compensated
Employees may not exceed one and twenty-five one-hundredths
(1.25) times the Average Contribution Percentage for Nonhighly
Compensated Employees.
(b) The Average Contribution Percentage for Highly Compensated
Employees
(1) May not exceed two (2) times the Average Contribution
Percentage for Nonhighly Compensated Employees, and
(2) May not exceed the Average Contribution Percentage for
Nonhighly Compensated Employees by more than two (2)
percentage points.
The Committee is empowered to monitor the Plan throughout the Plan
Year and to decrease or suspend the amount of contributions made by
Highly Compensated Employees pursuant to an election made pursuant to
Section 4.2.
The Employer may also, in its sole discretion, make Qualified
Nonelective Contributions on behalf of Eligible Employees who are
Nonhighly Compensated Employees in an amount sufficient to satisfy the
nondiscrimination requirements of this section. Such contributions
shall be allocated based on the ratio that each such Eligible
Employee's Compensation bears to the total Compensation of all such
Eligible Employees for the Plan Year. Such additional contributions
shall be fully vested.
6.5 Excess Contributions. If for any Plan Year it is determined that the
nondiscrimination requirements of Section 6.4 are not satisfied:
(a) Certain Highly Compensated Employees shall have the total of
their contributions reduced retroactively in accordance with
the leveling method described in Article 6.
(b) A Highly Compensated Employee who has had the total of his
contributions reduced in accordance with this Section 6.5
shall have the amount of such reduction taken from his
contributions for the Plan Year.
(c) Reduced contributions plus any investment earnings allocable
to such contributions shall be paid in cash to the Highly
Compensated Employee. Payment shall be made within two-and-one-
half (2-1/2) months following the last day of the Plan
Year for which the reduction was necessary, if practicable,
but in no event later than the last day of the Plan Year
following such Plan Year. If such excess amounts are
distributed more than two-and-one-half (2-1/2) months after
the last day of the Plan Year in which such excess amounts
arose, a 10 percent (10%) excise tax will be imposed on the
Employer with respect to such amounts. The income allocable
to such reduced contributions shall be determined in
accordance with such Regulations and will include income for
the Plan Year for which the contributions were made but not
for the period between the end of such Plan Year and the date
of distribution.
(d) Excess Contributions shall be treated as annual additions
under the Plan.
6.6 Additional Nondiscrimination Limitation. If the nondiscrimination
requirements in Sections 6.1 and 6.4 are satisfied solely by using the
limit set forth in Subsection (b) in both Sections, then the
requirements in either Subsections (a) or (b) must be satisfied:
(a) The sum of the Average Deferral Percentage and the Average
Contribution Percentage for Highly Compensated Employees may
not exceed the sum of:
(1) One and twenty-five one-hundredths (1.25) times the greater
of:
(A) The Average Deferral Percentage of the Nonhighly
Compensated Employees, and
(B) The Average Contribution Percentage of the Nonhighly
Compensated Employees; and
(2) The lesser of:
(A) Two (2) times the lesser of the Average Deferral
Percentage and the Average Contribution Percentage of
the Nonhighly Compensated Employees, and
(B) Two percentage points (2%) plus the lesser of the
Average Deferral Percentage and the Average Contribution
Percentage of the Nonhighly Compensated Employees.
(b) The sum of the Average Deferral Percentage and Average
Contribution Percentage for Highly Compensated Employees may
not exceed the sum of:
(1) One and twenty-five one-hundredths (1.25) times the lesser
of
(A) The Average Deferral Percentage of the Nonhighly
Compensated Employees, and
(B) The Average Contribution Percentage of the Nonhighly
Compensated Employees; and
(2) The lesser of:
(A) Two (2) times the greater of the Average Deferral
Percentage and Average Contribution Percentage of the
Nonhighly Compensated Employees, and
(B) Two percentage points (2%) plus the greater of the
Average Deferral Percentage and the Average Contribution
Percentage of the Nonhighly Compensated Employee.
(c) If the nondiscrimination requirements under Subsections (a)
and (b) are not satisfied, amounts in excess of that required
to meet the nondiscrimination requirements shall be treated as
an Excess Pretax Contribution in the same manner as provided
in Sections 6.2.
6.7 Leveling Method. If the nondiscrimination requirements of Section 6.1
or 6.4 are not met, Pretax Contributions shall be reduced
retroactively under the leveling method as follows:
(a) The Highly Compensated Employee with the highest Deferral
Percentage (or Contribution Percentage) shall have his total
Pretax Contributions reduced to the extent required to satisfy
the nondiscrimination requirements of Section 6.1 (or Section
6.4) or to cause such Highly Compensated Employee's Deferral
Percentage (or Contribution Percentage) to equal that of the
Highly Compensated Employee with the next highest Deferral
Percentage (or Contribution Percentage).
(b) If the nondiscrimination requirements set forth in Section 6.1
(or Section 6.4) are still not satisfied after the reduction
in subsection (a) is made, the Highly Compensated Employee
with the highest Deferral Percentage (or Contribution
Percentage) shall have his total Pretax Contributions reduced
to the extent required to meet the nondiscrimination
requirements of Section 6.1 (or Section 6.4) or to cause such
Highly Compensated Employee's Deferral Percentage (or
Contribution Percentage) to equal that of the Highly
Compensated Employee with the next highest Deferral Percentage
(or Contribution Percentage).
(c) If the nondiscrimination requirements set forth in Section 6.1
(or Section 6.4) are still not satisfied after the reduction
in subsection (b) is made, the process shall be repeated until
the nondiscrimination requirements of Section 6.1 (or Section
6.4) are satisfied.
6.8 Aggregation of Plans. In the event this Plan is aggregated with any
other plan maintained by an Affiliated Employer and treated as a
single plan for purposes of Code Sections 401(a)(4) and 410(b) (other
than Code Section 410(b)(2)(A)(ii)), all Pretax Contributions made
under the two plans shall be treated as made under a single plan, and
if two or more of such plans are permissively aggregated for purposes
of Code Sections 401(k) and 401(m), such plans shall be treated as a
single plan for purposes of satisfying Code Sections 401(a)(4) and
410(b). Plans may be aggregated to satisfy Code Section 401(m) only
if they have the same Plan Year.
6.9 Code Section 415 Limits. The annual additions made on behalf of a
Participant hereunder shall be limited to the extent required by Code
Section 415 and rulings, notices, and regulations issued thereunder.
To the extent applicable, Code Section 415 and rulings, notices, and
regulations issued thereunder are hereby incorporated by reference
into this Plan. In calculating these limits, the following rules
shall apply:
(a) In the event the Committee determines that the annual
additions made on behalf of a Participant during any
Limitation Year are in excess of the limitations of this
Section as the result of a mistake in estimating a
Participant's compensation or under other limited facts and
circumstances which the Commissioner of Internal Revenue finds
justify the use of these rules, such annual additions shall be
reduced for such Limitation Year in such amount so that the
limitations of this Section are not exceeded. Such annual
additions shall be reduced to the extent necessary, first from
unmatched Pretax Contributions, then from any remaining Pretax
Contributions for such Limitation Year, so that the
limitations of this Section are not exceeded.
(b) If the Participant is, or ever has been, covered under one or
more qualified defined benefit plans maintained by the
Employer or Affiliated Employer, the combined plan limits of
Code Section 415(e) shall be calculated by reducing the limits
applicable to the defined benefit plans first, prior to
restricting annual additions to this Plan.
6.10 Miscellaneous Nondiscrimination Requirements. The following
nondiscrimination requirements apply:
(a) For purposes of this Section, the Contribution Percentage for
any Participant who is a Highly Compensated Employee and who
is eligible to have Contribution Percentage Amounts allocated
to his account under two or more plans described in Code
Section 401(a), or arrangements described in Code Section
401(k) that are maintained by the Employer, shall be
determined as if the total of such Contribution Percentage
Amounts was made under each plan. Notwithstanding the
foregoing, certain plans shall be treated as separate if
mandatorily disaggregated under regulations under Code Section
401(m).
(b) For purposes of determining the Contribution Percentage of a
Participant who is a five-percent (5%) owner or one of the ten
(10) most Highly Compensated Employees, the Contribution
Percentage Amounts and Compensation of such Participant shall
include the Contribution Percentage Amounts and Compensation
for the Plan Year of Family Members. Family Members, with
respect to Highly Compensated Employees, shall be disregarded
as separate Employees in determining the Contribution
Percentage both for the Participants who are Nonhighly
Compensated Employees and for Participants who are Highly
Compensated Employees.
(c) For purposes of performing the Contribution Percentage test,
Matching Contributions and Qualified Nonelective Contributions
will be considered made for a Plan Year if made no later than
the end of the twelve (12) month period beginning on the day
after the close of the Plan Year.
(d) The Employer shall maintain records sufficient to demonstrate
satisfaction of the Average Contribution Percentage test and
the amount of Qualified Nonelective Contributions or Matching
Contributions, or both, used in such test.
(e) The determination and treatment of the Contribution Percentage
of any Participant shall satisfy such other requirements as
may be prescribed by the Secretary of the Treasury.
For purposes of this Section 6.10, the words below shall have the
following meaning:
(1) "Average Contribution Percentage" shall have the same
meaning as provided for under Section 1.3.
(2) "Contribution Percentage" shall mean the ratio (expressed
as a percentage) of the Participant's Contribution
Percentage Amounts to the Participant's Compensation for
the Plan Year.
(3) "Contribution Percentage Amounts" shall mean the sum of the
Employer Matching Contributions and Employer Discretionary
Contributions (to the extent not taken into account for
purposes of the Average Deferral Percentage test) made
under the Plan on behalf of the Participant for the Plan
Year. Such Contribution Percentage Amounts shall not
include Employer Matching Contributions that are forfeited
either to correct excess contributions or because the
contributions to which they relate are excess Pretax
Contributions. If so elected in the adoption agreement,
the Employer may include Qualified Nonelective
Contributions in the Contribution Percentage Amounts. The
Employer may also elect to use Pretax Contributions in the
Contribution Percentage Amounts so long as the Average
Deferral Percentage test is met before the Pretax
Contributions are used in the Average Contribution
Percentage test and continues to be met following the
exclusion of those Pretax Contributions that are used to
meet the Average Contribution Percentage test.
(4) "Eligible Participant" shall mean any Employee who is
eligible to make a Pretax Contribution (if the Employer
takes such contributions into account in the calculation of
the Contribution Percentage), or to receive an Employer
Matching Contribution (including forfeitures).
(5) "Matching Contribution" shall mean an Employer Contribution
made to this or any other defined contribution plan on
behalf of a Participant on account of a Participant's
Pretax Contribution, under a Plan maintained by the
Employer, as described in Section 5.1.
<PAGE>
ARTICLE 7
PARTICIPANT ACCOUNTS
7.1 Participant Accounts. The Committee shall establish all accounts and
subaccounts as deemed necessary.
The maintenance of the Account is for accounting purposes only and
segregation of the Fund's assets shall not be required. Contributions
and earnings thereon shall be allocated to Participants' Accounts as
soon as practicable after they are made.
7.2 Allocations to Accounts. As of each Valuation Date, the Funding Agent
shall determine the fair market value of the Fund and the Committee
shall determine the fair market value of each Participant Account.
The Account balances of each Participant shall be adjusted on a
reasonable and consistent basis to reflect the following events since
the preceding Valuation Date:
(a) Investment elections and his pro rata share of gains/losses
and expenses of the investment funds in which his Account
balances are invested;
(b) Pretax Contributions;
(c) Allocations of Employer Contributions; and
(d) Other credits and charges properly allocable.
In determining the value of the Fund and each individual Account, the
Funding Agent and the Committee shall exercise their best judgment,
and all determinations of value shall be binding upon all Participants
and their Beneficiaries. All allocations shall be deemed to have been
made as of the Valuation Date, regardless of when allocations are
actually made.
The Committee shall also have the right to authorize the Funding Agent
to determine the fair market value of the Fund on a date other than a
Valuation Date when it deems necessary to preserve the assets of the
Plan.
<PAGE>
ARTICLE 8
INVESTMENT OF CONTRIBUTIONS
8.1 Investment Funds. The agreement entered into between the Employer and
the Funding Agent pursuant to Section 13.1 to invest and retain the
assets of the Plan shall provide at least three (3) investment fund
options in which Participants can invest their Pretax Contributions.
Pending investment and disbursement, the Fund may be invested in
investments of a short-term nature.
8.2 Election of Investment Fund for Contributions. A Participant shall
direct, at the time he becomes a Participant in the Plan, in the
manner prescribed by the Committee, the manner in which his Pretax
Contributions are to be invested. Investments shall be made in one
(1) or more of the investment funds available under Section 8.1, in
ten percent (10%) increments.
8.3 Change in Election of Investment Fund for Future Contributions.
Subject to any limitations imposed by the Funding Agent and the
Committee, a Participant may, as prescribed by the Committee, elect to
change his investment election for future Pretax Contributions in ten
percent (10%) increments. Changes may be made quarterly during the
Plan Year and shall become effective on the Valuation Date coincident
with or next following the election or as soon as practicable
thereafter.
8.4 Change in Election of Investment Fund for Past Contributions. Subject
to any limitations imposed by the Funding Agent and the Committee, a
Participant may, as prescribed by the Committee, elect to transfer all
or a portion of the value of his Accounts from one fund to another
fund in ten percent (10%) increments. Transfers may be made quarterly
during the Plan Year and shall become effective on the Valuation Date
coincident with or next following the election or as soon as
practicable thereafter.
<PAGE>
ARTICLE 9
WITHDRAWALS AND LOANS
9.1 Withdrawals of Pretax Contributions
(a) A Participant who is an Employee shall have no right to
withdraw any portion of his/her Employer Contribution Account
or Qualified Nonelective Contribution Account. A Participant
who is an Employee shall have no right to withdraw any portion
of his Employee Pretax Contribution Account or his Rollover
Account, except as provided in Section 9.2.
(b) A request for a withdrawal under this Article 9 shall be made
on forms and in accordance with procedures prescribed by the
Committee. The minimum amount of a withdrawal shall be one
thousand dollars ($1,000).
9.2 Hardship Withdrawals.
(a) A Participant who is an Employee may, in the event of
Hardship, be permitted to make a withdrawal from his Accounts.
For purposes of this Section 9.2, the term "Hardship" shall
mean:
(1) Medical expenses described in Code Section 213(d) incurred
by the Participant, the Participant's Spouse or any
dependents of the Participant or necessary to incur such
medical care;
(2) Purchase (excluding mortgage payments) of a principal
residence for the Participant;
(3) Payment of tuition and related educational fees for the
twelve (12) months of post-secondary education for the
Participant, his Spouse, children, or dependents;
(4) The need to prevent the eviction of the Participant from
his principal residence or foreclosure on the mortgage of
the Participant's principal residence.
(b) Before a Hardship withdrawal is granted, the Participant shall
be required to make all withdrawals, other than hardship,
available to him under Article 9. If these amounts are
insufficient to meet the Hardship, the Participant shall then
be permitted to make a Hardship withdrawal of an amount
sufficient to alleviate the Hardship, including any taxes and
penalties attributable to the withdrawal.
(c) The amount necessary to fund the withdrawal shall be taken
from the Participant's Employee Pretax Contribution Account or
Rollover Account up to an amount not in excess of the value of
the Employee Pretax Contribution Account or Rollover Account.
(d) A request for a withdrawal under this Section 9.2 shall be
made on forms prescribed by the Committee. The Committee
shall establish a uniform and nondiscriminatory policy for
reviewing withdrawal applications and any determination made
by the Committee shall be final but subject to appeal under
Section 12.8.
(e) In the case of a Participant who receives a Hardship
withdrawal that consists in whole or in part of Pretax
Contributions, notwithstanding Sections 4.1 and 4.2, such
Participant shall not be permitted to have Pretax
Contributions made on his behalf to this Plan or any other
plan (as such term is defined in Treasury Regulations)
maintained by an Affiliated Employer (whether or not a
participating employee) during the twelve (12) month period
following his receipt of such withdrawal. Furthermore, the
maximum Pretax Contribution such Participant is permitted to
have made on his behalf under Code Section 402(g) to this Plan
and any plan maintained by an Affiliated Employer for the
calendar year following the calendar year of the Hardship
withdrawal shall be reduced by the amount of Pretax
Contributions made on behalf of the Participant in the
calendar year of the Hardship withdrawal to this Plan and all
other plans maintained by an Affiliated Employer in which the
Participant participated.
(f) Hardship withdrawals are subject to the spousal consent
requirements contained in Code Sections 401(a)(11) and 417.
9.3 Valuation and Payment of Withdrawals. In the event of a withdrawal
under this Article 9, the value of a Participant's Accounts shall be
determined by the Funding Agent as of the Valuation Date coincident
with or next following the date on which the Funding Agent receives
instructions from the Committee to make the Hardship withdrawal.
Withdrawals shall be paid to the Participant in cash on the earliest
practicable date following the aforementioned Valuation Date.
9.4 Loan Provision. A Participant who is an Employee or a former Employee
who is a party-in-interest (as defined in Section 3(14) of ERISA) of
the Employer may, on forms and in accordance with procedures
prescribed by the Committee, apply to borrow from the value of the
Employee Contribution, Employer Matching Contribution and/or rollover
contribution portion of his Accounts. Any loan made under this
Section 9.4 shall be subject to the following provisions:
(a) Only one (1) loan shall be made to a Participant in any given
Plan Year and no Participant shall have more than one loan
outstanding at any given time. Notwithstanding any provision
in this Plan to the contrary, no new loan is permitted unless
all old loans have been paid off.
(b) The amount of a loan shall not be less than one thousand
dollars ($1,000). At the time a loan is made, the amount of
such loan shall not exceed the lesser of (i) fifty thousand
dollars ($50,000) reduced by the Participant's highest
outstanding loan balance during the one-year period ending on
the day before the date on which a loan is made, and (ii)
fifty percent (50%) of the value of the Participant's Accounts
as defined in Section 9.4 as of the preceding Valuation Date
plus employee contributions through the date of the
distributable event. The amount of the loan shall be a
multiple of one hundred dollars ($100).
(c) The rate of interest that will be charged on a loan for its
duration shall be the prime rate charged by commercial lenders
for loans made under similar circumstances plus one percent
(1%), as of the first day of the calendar month in which the
loan is made, provided the rate does not violate applicable
usury laws. Such rate shall be determined by the Committee,
in its sole discretion.
(d) The term of the loan shall not be less than six (6) months nor
exceed five (5) years, unless the loan is used to acquire a
dwelling unit which, within a reasonable period of time
(determined at the time the loan is made), is to be used as
the principal residence of the Participant, and except as
provided by the Secretary of the Treasury, shall require
substantially level amortization of the loan (with payments
not less frequently than quarterly) over its term. All loans
shall be repaid by payroll deductions. Any loan may be repaid
in whole without penalty subject to such rules as the
Committee may determine, provided the amount of any pre-payment
is made by certified check.
(e) An amount having a value equal to the principal amount of the
loan shall be paid from the Account of a Participant to whom a
loan is made. Such amount shall be paid on a pro-rata basis
from the investment funds in which the Participant's Account
is invested, pursuant to Article 8, at the time the loan is
made. Payroll deductions made to repay the loan shall be
invested in accordance with the Participant's investment
election under Article 8, which is in effect at the time such
payment is made.
(f) As evidence of a loan, a Participant shall provide an
interest-bearing promissory note to the Committee in such form
as shall be prescribed by the Committee and bearing the rate
of interest determined pursuant to Section 9.4(c). A
Participant's note shall be secured by the vested portion of
his Account. The promissory note shall be an asset of the
Fund which is allocated to the Loan Account of the
Participant. For purposes of the Plan, such note shall have a
fair market value at any given time equal to the unpaid
balance of the note, plus the amount of any accrued but unpaid
interest.
(g) Notwithstanding any provision herein to the contrary, if any
unpaid balance remains on a loan when a Participant terminates
his employment with the Employer, the Committee shall deduct
the unpaid amount of the loan plus accrued interest, if any,
from the benefits which become payable to or on behalf of the
Participant under the Plan.
(h) Loans shall be available to all Participants on a reasonably
equivalent basis. The terms of all Participant loans are
subject to the review and approval of the Committee and the
denial of a loan to a Participant is subject to appeal by the
Participant under Article 12.
(i) Notwithstanding the foregoing, no loan shall be made to a
Participant during the period in which the Committee is making
a determination of whether a domestic relations order
affecting the Participant's Account is a qualified domestic
relations order, within the meaning of Code Section 414(p).
Further, if the Committee is in receipt of a qualified
domestic relations order with respect to any Participant's
Account, it may prohibit such Participant from obtaining a
loan until the alternate payee's rights under the order are
satisfied.
(j) The Committee shall establish such rules and regulations as
may be necessary to administer loans hereunder. Specifically,
such rules and regulations shall specify the procedure for
applying for Plan loans, the basis on which loans shall be
approved or denied, the events constituting default, and the
steps that will be taken to preserve Plan assets in the event
of default.
<PAGE>
ARTICLE 10
ENTITLEMENT TO BENEFITS
10.1 Retirement. A Participant who retires from employment with the
Employer or an Affiliated Employer on or after his Normal
Retirement Age shall be entitled to receive a retirement benefit
equal to one hundred percent (100%) of the value of his Accounts.
10.2 Disability. A Disabled Participant shall be entitled to receive a
disability benefit equal to one hundred percent (100%) of the
value of his Accounts.
10.3 Termination of Employment. A Participant whose employment with
the Employer and an Affiliated Employer is terminated for any
reason other than retirement in accordance with Section 10.1,
Disability in accordance with Section 10.2, or death in accordance
with Section 10.6 shall be entitled to receive:
(a) One hundred percent (100%) of the value of his Employee
Contribution Account, Qualified Nonelective Contribution
Account, and/or Rollover Account,
(b) A Participant who incurs a Termination at a time when he is
not entitled to an Early, Normal, Disability or Postponed
Retirement Benefit under this Plan shall be entitled to an
Employer Matching Contribution payable as provided in this
Plan, which shall be a portion of his Accrued Benefit
calculated in accordance with the following table:
Completed Full Years of
Vesting Service The Vested Portion Is
Less than 1 Year 0 percent
1 20 percent
2 40 percent
3 60 percent
4 80 percent
5 or More Years 100 percent
10.4 Vesting on Plan Termination. In the event of termination or
partial termination of the Plan, each affected Participant shall
be one hundred percent (100%) vested in his Account. The
foregoing sentence shall not apply to a former participant who has
been cashed-out (including those deemed cashed out under Section
10.5) or who has incurred five (5) consecutive One-Year Breaks in
Service.
10.5 Forfeitures. A Participant who does not have a one hundred
percent (100%) nonforfeitable interest in his Employer Accounts
and whose employment with the Employer or an Affiliated Employer
is terminated under Section 10.3 shall be deemed to be cashed out
and shall forfeit that portion of his Employer Account in which he
does not have a nonforfeitable interest. Such forfeiture shall be
effective on the Valuation Date coincident with or next following
the Participant's Termination Date. Forfeited amounts shall be
applied to reduce future Employer Contributions.
A Participant or former Participant who is subsequently reemployed by
the Employer or an Affiliated Employer prior to incurring five (5)
consecutive One-Year Breaks in Service shall have the forfeited part
of his Employer Account restored. Upon reemployment, the Employer
shall make a contribution on behalf of such Participant equal to the
amount forfeited, unadjusted for any gains or losses that may have
resulted had the amounts not been forfeited.
10.6 Death.
(a) A death benefit shall be payable to the Beneficiary of a
Participant who dies while actively employed by the Employer
or an Affiliated Employer. The death benefit shall be equal
to one hundred percent (100%) of the value of the
Participant's Accounts.
(b) A death benefit shall be payable to the Beneficiary of a
Participant who dies after his Termination Date but prior to
receiving the full value of the nonforfeitable portion of his
Accounts to which he was entitled under Section 10.1, 10.2, or
10.3, as the case may be. The death benefit shall be equal to
the value of the undistributed portion of such Accounts.
(c) The value of a Participant's Accounts shall be determined as
of the Valuation Date coincident with or next following the
date of the Participant's death and distributed in accordance
with Sections 11.1 and 11.2.
10.7 Beneficiary. Each Participant shall have the right to designate,
on forms provided by the Committee, one or more Beneficiaries to
receive any amount that may be payable under the Plan because of
such Participant's death.
A Participant shall have the right to revoke or change his Beneficiary
designations at any time. If no Beneficiary is designated, the
Beneficiary cannot be found, or if the designated Beneficiary is
deceased, any amount payable under the Plan shall be paid to the
Spouse, if any, of the Participant. If the Participant has no Spouse,
or if the Spouse is deceased, any amount payable under the Plan shall
be paid to the estate of the Participant.
Notwithstanding the foregoing, the Beneficiary of a Participant who is
legally married at the time of death shall be the Participant's
surviving Spouse unless the surviving Spouse has consented in writing
to the Participant's designation of another Beneficiary, the consent
acknowledges the effect of the designation, names the specific
Beneficiary or class of Beneficiaries (if applicable), and the
designation is witnessed by a notary public. Notwithstanding the
foregoing, if the Participant establishes to the satisfaction of the
Committee that such consent cannot be obtained because there is no
Spouse or the Spouse cannot be located, the Spouse will be deemed to
have consented to the designation of such other Beneficiary.
10.8 Small Payments. Notwithstanding Sections 10.1, 10.2, 10.3, and
10.6, the Committee shall direct that the value of the
nonforfeitable Account of a Participant be immediately distributed
if such value is less than three thousand five hundred dollars
($3,500). The value of the Account shall be determined as of the
Valuation Date coincident with or next following the date on which
the Participant becomes a Disabled Participant, the Participant's
Termination Date or the date of the Participant's death, as the
case may be, and shall be distributed as soon as practicable
following such Valuation Date.
ARTICLE 11
DISTRIBUTION OF BENEFITS
11.1 Form of Benefit Payment. A Participant or Beneficiary of a
Participant who is entitled to a death benefit will receive the
value of his Account to which he is entitled under the Plan
pursuant to Article 10 in a single lump sum of cash equal to the
value of his Account. Notwithstanding the foregoing, a
Participant's or Beneficiaries interest in an Employee
Contribution Account shall be distributed in whole shares of
Company stock.
11.2 Benefit Commencement. The Plan shall make distributions to
Participants and Beneficiaries as soon as practicable after the
Valuation Date coincident with or next following the Participant's
retirement, date of becoming a Disabled Participant, Termination
Date, or death. Any amounts that may be credited to a
Participant's Employer Account after the payment of the value of
such Account shall be paid as soon as practicable after the
Valuation Date coincident with such amounts being credited to the
Participant's Employer Account. The Participant may elect to
delay the distribution of his Account payable pursuant to Section
10.1, 10.2, or 10.3, subject to the requirements of Section 11.3.
If a Participant delays payment hereunder, the Plan shall make
distributions to such a Participant as soon as practicable after
the Valuation Date coincident with or next following the date the
Participant elects to receive his Account.
Notwithstanding the foregoing, unless the Participant elects
otherwise, a distribution from the Plan shall not commence later than
sixty (60) days after the end of the Plan Year in which the latest of
the following occurs:
(a) The Participant attains or would have attained age sixty-five
(65); or
(b) The Participant terminates employment with the Employer and
any Affiliated Employer;
11.3 Minimum Required Distributions. Notwithstanding any provision in
the Plan to the contrary, all distributions under the Plan shall
be made in accordance with the requirements of Code Section
401(a)(9) and the regulations thereunder, including the incidental
death benefit requirement of IRS Proposed Regulations Section
1.401(a)(9)-2. The provisions in this section override any
distribution options under the Plan if inconsistent with the
requirements of Code Section 401(a)(9).
(a) Pre-Death Distribution. Distributions to a Participant shall
commence no later than the April 1 of the calendar year
following the calendar year in which a Participant attains age
seventy and one-half (70-1/2). However, if a Participant
attained age 70-1/2 before January 1, 1988, distributions to such
Participant shall commence no later than the April 1 following
the calendar year in which such Participant retires.
Distributions shall be made in one of the forms specified
under Section 11.1. In no event shall distributions be made
for a period greater than the life expectancy of the
Participant or joint life expectancy of the Participant and
his Spouse, determined as of April 1 of the calendar year in
which the Participant attains age 70-1/2 or retires, as the case
may be.
(b) Post-Death Distributions. In the event of the death of the
Participant, any payments due following the death of the
Participant shall be made in accordance with Article 10. In
the case of a Participant who had begun to receive
distributions under Section 11.3(a), distributions shall be
made after such Participant's death at least as rapidly as
before his death. In the case of other Participants, in no
event shall distributions be made later than the end of the
calendar year which contains the fifth anniversary of the date
of the Participant's death.
11.4 Eligible Rollover Distribution Provision. Notwithstanding any
provision of the Plan to the contrary that would otherwise limit a
distributee's election under this Article, a distributee may
elect, at the time and in the manner prescribed by the plan
administrator, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement plan
specified by the distributee in a direct rollover. This provision
applies to distributions made on or after January 1, 1993. For
purposes of this Section the following terms shall apply.
(a) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of the
balance to the credit of the distributee, except that an
eligible rollover distribution does not include any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified
period of ten years or more; any distribution to the extent
such distribution is required under Code Section 401(a)(9);
and the portion of any distribution that is not includable in
gross income (determined without regard to the exclusion for
net unrealized appreciation with respect to employer
securities).
(b) Eligible retirement plan: An eligible retirement plan is an
individual retirement account described in Code Section
408(a), an individual retirement annuity described in Section
408(b) of the Code, an annuity plan described in Code Section
403(a), or a qualified trust described in Code Section 401(a),
that accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution to
the surviving Spouse, an eligible retirement plan is an
individual retirement account or individual retirement
annuity.
(c) Distributee: A distributee includes an Employee or former
employee. In addition, the Employee's or former employee's
surviving Spouse and the Employee's or former employee's
Spouse or former spouse who is the alternate payee under a
qualified domestic relations order, as defined in Code Section
414(p) Code, are distributees with regard to the interest of
the Spouse or former spouse.
(d) Direct rollover: A direct rollover is a payment by the Plan
to the eligible retirement plan specified by the distributee.
<PAGE>
ARTICLE 12
PLAN ADMINISTRATION
12.1 Appointment of Committee. A Plan Committee consisting of at least
three (3) members shall be appointed by the Board to administer
the Plan on behalf of the Board. Vacancies in the Committee shall
be filled from time to time by appointment of a new Committee
member by the Board. A member of the Committee shall hold office
until he gives written notice of his resignation to the Board,
until death, or until removal by the Board.
12.2 Powers and Duties of the Committee.
(a) The Committee shall have full power to administer the Plan and
to construe and apply all of its provisions on behalf of the
Employer. The Committee is the Named Fiduciary within the
meaning of ERISA Section 402(a) for purposes of Plan
administration. Decisions by the Committee will be deemed
final in each case. The Committee's powers and duties, unless
properly delegated, shall include, but shall not be limited
to:
(1) Designating agents to carry out responsibilities relating
to the Plan, other than fiduciary responsibilities.
(2) Deciding questions relating to eligibility, continuity of
employment, and amounts of benefits.
(3) Deciding disputes that may arise with regard to the rights
of Employees, Participants or Beneficiaries and their legal
representatives, under the terms of the Plan.
(4) Obtaining information from the Employer with respect to its
Employees as necessary to determine the rights and benefits
of Participants under the Plan. The Committee may rely
conclusively on such information furnished by the Employer.
(5) Compiling and maintaining all records necessary for the
Plan.
(6) Authorizing the Funding Agent to make payment of all
benefits as they become payable under the Plan.
(7) Engaging such legal, administrative, consulting,
investment, accounting, and other professional services as
the Committee deems proper.
(8) Adopting rules and regulations for the administration of
the Plan that are not inconsistent with the Plan. The
Committee may, in a nondiscriminatory manner, waive the
timing requirements of any notice or other requirements
described in the Plan. Any such waiver will not obligate
the Committee to waive any subsequent timing or other
requirements for other Participants.
(9) Interpreting and approving Qualified Domestic Relations
Orders, in accordance with Code Section 414(p).
(10) Making nonsubstantive amendments for the purposes of
maintaining the qualified status of the Plan only.
(11) Performing other actions provided for in other parts of
this Plan.
(b) The Company shall have responsibility for, and shall be the
Named Fiduciary for, the following purposes:
(1) Selection of the funding media for the Plan, including the
power to direct investments and to appoint an investment
manager or managers pursuant to ERISA Section 402(c).
(2) Allocating fiduciary responsibilities, other than Funding
Agent responsibilities as defined in ERISA Section 405(c),
among fiduciaries, and designation of additional
fiduciaries.
(3) Selection of insurance contracts to provide benefits
hereunder, or, if all assets are not held under insurance
contracts, the Funding Agent.
(c) The Funding Agent, if any, shall have responsibility for, and
shall be the Named Fiduciary for the care and custody of, and,
to the extent the Committee has not reserved to itself this
right or that investment managers are not appointed by the
Employer, management of Plan assets other than insurance
contracts.
12.3 Actions by the Committee. A majority of the members composing the
Committee at any time will constitute a quorum. The Committee may
act at a meeting, or in writing without a meeting, by the vote or
assent of a majority of its members. The Committee will appoint a
Committee Chairperson and a Secretary. The Secretary will record
all action taken by the Committee. The Committee will have
authority to designate in writing one of its members or any other
person as the person authorized to execute papers and perform
other ministerial duties on behalf of the Committee.
12.4 Interested Committee Members. No member of the Committee will
participate in an action of the Committee on a matter which
applies solely to that member. Such matters will be determined by
a majority of the remainder of the Committee.
12.5 Indemnification. The Employer, by the adoption of this Plan,
indemnifies and holds the members of the Committee, jointly and
severally, harmless from the effects and consequences of their
acts, omissions, and conduct in their official capacities, except
to the extent that the effects and consequences result from their
own willful misconduct, breach of good faith, or gross negligence
in the performance of their duties. The foregoing right of
indemnification will not be exclusive of other rights to which
each such member may be entitled by any contract or other
instrument or as a matter of law.
12.6 Conclusiveness of Action. Any action on matters within the
discretion of the Committee will be conclusive, final, and binding
upon all Participants in the Plan and upon all persons claiming
any rights, including Beneficiaries.
12.7 Payment of Expenses. The members of the Committee will serve
without compensation for their services. The compensation or fees
of consultants, actuaries, accountants, counsel and other
specialists and any other costs of administering the Plan or Fund,
will be paid by the Employer.
12.8 Claim Procedure. Any Participant or Beneficiary may submit a
written application to the Committee for payment of any benefit
that may be due him under the Plan. Such application shall set
forth the nature of the claim and any information as the Committee
may reasonably request. Upon receipt of any such application, the
Committee shall determine whether or not the Participant or
Beneficiary is entitled to the benefit hereunder.
If a claim is denied, in whole or in part, the Committee shall give
written notice to any Participant or Beneficiary of the denial of a
claim for the commencement, continuation or calculation of amount of
retirement benefits under the Plan. The notice shall be given within
ninety (90) days after receipt of the Participant's or Beneficiary
application unless special circumstances require an extension for
processing the claim. In no event shall such extension exceed a
period of ninety (90) days from the end of such initial review period.
The notice will be delivered to the claimant or sent to the claimant's
last known address, and will include the specific reason or reasons
for the denial, a specific reference or references to pertinent Plan
provisions on which the denial is based, a description of any
additional material or information for the claimant to perfect the
claim, which will indicate why such material or information is needed,
and an explanation of the Plan's claims review procedure.
If the claimant wishes to appeal the claim's denial, the claimant or a
duly authorized representative will file a written request with the
Committee for a review. This request must be made by the claimant
within sixty (60) days after receiving notice of the claim's denial.
The claimant or representative may review pertinent documents relating
to the claim and its denial, may submit issues and comments in writing
to the Committee and may request a hearing. Within sixty (60) days
after receipt of such a request for review, the Committee shall
reconsider the claim, and if the claimant shall have so requested,
shall afford the claimant or his representative a hearing before the
Committee and make a decision on the merits of the claim. If
circumstances require an extension of time for processing the claim,
the sixty (60) day period may be extended but in no event more than
one hundred and twenty (120) days after the receipt of a request for
review. The decision on review will be in writing and include
specific reasons and references to the pertinent Plan provisions on
which the decision is based.
ARTICLE 13
ESTABLISHMENT OF FUND
13.1 Funding Agreement. Contributions made by Participants pursuant to
Article 4 hereof shall be held in a Fund or Funds. The Employer
shall enter into a trust arrangement, or a combination of a trust
arrangement and insurance company contract(s), with one or more
Funding Agents providing for the administration of the Fund or
Funds in which the assets of this Plan are held.
<PAGE>
ARTICLE 14
AMENDMENT, TERMINATION, AND MERGER OF THE PLAN
14.1 Right to Amend the Plan. The Employer reserves the right to
modify, alter, or amend this Plan from time to time to any extent
that it may deem advisable including, but without limiting the
generality of the foregoing, any amendment deemed necessary to
ensure the continued qualification of the Plan under Code Section
401 or the appropriate provisions of any subsequent revenue law.
No such amendment shall increase the duties or responsibilities of
a Funding Agent without its consent thereto in writing. No such
amendment(s) shall have the effect of reinvesting in the Employer
the whole or any part of the principal or income to purposes other
than for the exclusive benefit of Participants or Beneficiaries at
any time prior to the satisfaction of all the liabilities under
the Plan with respect to such persons. No amendment shall reduce
a Participant's Account balance on the effective date of the Plan
amendment or eliminate an optional form of benefit under the Plan
with respect to the Participant's Account balance on the date of
the amendment.
14.2 Right to Terminate the Plan. The Employer shall have the right to
terminate this Plan at any time. In the event of such termination
all affected Participants shall be vested as provided in Section
10.4.
14.3 Plan Mergers, Consolidations, and Transfers. The Plan shall not
be automatically terminated by the Employer's acquisition by or
merger into any other company, trade, or business, but the Plan
shall be continued after such merger provided the successor
employer agrees to continue the Plan with respect to affected
Participants herein. All rights to amend, modify, suspend, or
terminate the Plan with respect to Participants of the Employer
shall be transferred to the successor employer, effective as of
the date of the merger or acquisition. The merger or
consolidation with, or transfer of the allocable portion of the
assets and liabilities of the Fund to any other qualified
retirement plan trust shall be permitted only if the benefit each
Plan Participant would receive, if the Plan were terminated
immediately after such merger or consolidation, or transfer of the
allocable portion of the assets and liabilities, would be at least
as great as the benefit he would have received had this Plan been
terminated immediately before the date of merger, consolidation,
or transfer.
14.4 Amendment of Vesting Schedule. If the vesting provisions of this
Plan are amended, including an amendment caused by the expiration
of top-heavy status under the terms of Article 15, Participants
with three (3) or more Years of Service, or three (3) or more
years of employment, whether or not consecutive, at the later of
the date the amendment is adopted or becomes effective, shall
automatically be vested, from that point forward, in the greater
of the amount vested under the vesting schedule as amended or the
amount vested under the vesting schedule prior to amendment.
<PAGE>
ARTICLE 15
TOP-HEAVY PLAN REQUIREMENTS
15.1 General Rule. For any Plan Year for which the Plan is a Top-Heavy
Plan as defined in Section 15.4, any other provisions of the Plan
to the contrary notwithstanding, the Plan shall be subject to the
provisions of this Article 15.
15.2 Vesting Provision. Each Participant who has completed an Hour of
Service during the Plan Year in which the Plan is a Top-Heavy Plan
shall have a nonforfeitable right to the percentage of the
previous Employer Account (other than the Qualified Nonelective
Contribution subaccount) under this Plan, in accordance with an
acceptable accelerated Top-Heavy vesting method described in the
regulations and designated by the Committee.
Each Participant's vested portion of his Employer Account shall not be
less than his vested Employer Account determined as of the last day of
the last Plan Year in which the Plan was not a Top-Heavy Plan. If the
Plan ceases to be a Top-Heavy Plan, an Employee with three or more
years of employment, whether or not consecutive, shall have the vested
portion of his Employer Account determined either in accordance with
this Section or Section 10.3.
15.3 Coordination with Other Plans. In the event that another defined
contribution plan or defined benefit plan maintained by the
Employer or any Affiliated Employer provides contributions or
benefits on behalf of Participants in the Plan, such other plan
shall be treated as part of this Plan pursuant to applicable
principles (such as Rev. Rul. 81-202 or any successor ruling) in
determining whether this Plan satisfies the requirements of
Sections 15.4 and 15.5.
15.4 Top-Heavy Plan Definition. The Plan shall be a Top-Heavy Plan for
any Plan Year if, as of the determination date, as defined in
Subsection (a), the aggregate of the Accounts under the Plan for
Participants who are key employees, as defined in Section 15.6,
exceeds sixty percent (60%) of the present value of the aggregate
of the Accounts for all Participants, or if this Plan is required
to be in an aggregation group, as defined in Subsection (c), which
for such Plan Year is a top-heavy group, as defined in Subsection
(d). For purposes of making this determination, the Accounts of a
Participant (i) who is not a key employee but who was a key
employee in a prior Plan Year or (ii) who has not performed any
service for the Employer at any time during the five (5) year
period ending on the determination date, shall be disregarded.
(a) "Determination date" means for any Plan Year the last day of
the immediately preceding Plan Year.
(b) The present value shall be determined as of the most recent
Valuation Date that is within the 12-month period ending on
the determination date, and as described in the regulations
prescribed under the Code.
(c) "Aggregation group" means the group of plans, if any, that
includes both the group of plans that are required to be
aggregated and the group of plans that are permitted to be
aggregated.
(1) The group of plans that are required to be aggregated, the
"required aggregation group," includes:
(A) Each plan of an Affiliated Employer, in which a key
employee is a participant, including collectively
bargained plans, and
(B) Each other plan of an Affiliated Employer, including
collectively bargained plans, which enables a plan in
which a key employee is a participant to meet the
requirements of Code Sections 401(a)(4) and 410.
(2) The group of plans that are permitted to be aggregated, the
"permissive aggregation group," includes the required
aggregation group plus one (1) or more plans of an
Affiliated Employer, that is not part of the required
aggregation group and that the Committee certifies as
constituting a plan within the permissive aggregation
group. Such plan or plans may be added to the permissive
aggregation group only if benefits are comparable to those
provided by the plans in the required aggregation group
and, if after the addition, the aggregation group as a
whole continues to meet the requirements of Code Sections
401(a)(4) and 410.
(d) "Top-heavy group" means the aggregation group, if, as of the
applicable determination date, the sum of the present value of
the cumulative accrued benefits for key employees under all
defined benefit plans included in the aggregation group plus
the aggregate of the accounts of key employees under all
defined contribution plans included in the aggregation group
exceeds sixty percent (60%) of the aggregate accrued benefits
and accounts for all employees under such defined benefit and
defined contribution plans. If the aggregation group that is
a top-heavy group is a required aggregation group, each plan
in the group will be top-heavy. If the aggregation group that
is a top-heavy group is a permissive aggregation group, only
those plans that are part of the required aggregation group
will be treated as top-heavy. If the aggregation group is not
a top-heavy group, no plan within such group will be top-heavy.
(e) In determining whether the Plan constitutes a Top-Heavy Plan,
the Committee shall make the following adjustments in
connection therewith:
(1) When more than one (1) plan is aggregated, the Committee
shall determine separately for each plan as of each plan's
determination date the present value of the accrued
benefits and account balances. The results shall then be
aggregated by adding the results of each plan as of the
determination dates for such plans that fall within the
same calendar year.
(2) In determining the present value of the cumulative accrued
benefits or the value of the account of any Employee, such
present value or account shall include the amount in dollar
value of the aggregate distributions made to such Employee
under the applicable plan during the 5-year period ending
on the determination date, unless reflected in the value of
the accrued benefit or account balances as of the most
recent Valuation Date. Such amounts shall include
distributions to employees which represented the entire
amount credited to their accounts under the applicable
plan, and distributions made on account of the death of an
employee to the extent such death benefits do not exceed
the present value of the account.
15.5 Change in 415(e) Limits. In the event the Employer also maintains
a defined benefit plan that provides benefits to Participants in
this Plan, and if the Plan is a Top-Heavy Plan, the combined plan
limit of Code Section 415(e) shall be applied by substituting
"1.0" for "1.25" in Code Sections 415(e)(2)(B) and 415(e)(3)(B).
However, this provision does not apply if the Plan would not be a
Top-Heavy Plan if "ninety percent (90%)" were substituted for
"sixty percent (60%)" in Section 15.4.
15.6 Key Employee. The term "key employee" means any Employee,
including former Employees under the Plan who, at any time during
the Plan Year containing the determination date or during any of
the four (4) preceding Plan Years, is or was one of the following:
(a) An officer of an Affiliated Employer, having annual
compensation from the Affiliated Employer greater than fifty
percent (50%) of the dollar amount in effect under Code
Section 415(b)(1)(A). Whether an individual is an officer
shall be determined by the Committee on the basis of all the
facts and circumstances, such as an individual's authority,
duties and term of office, not on the mere fact that the
individual has the title of an officer. For any such Plan
Year, there shall be treated as officers no more than the
lesser of (i) fifty (50) Employees, or (ii) the greater of
three (3) Employees or ten percent (10%) of the greatest
number of Employees.
For this purpose, the highest-paid officers shall be selected.
(b) One of the ten (10) Employees having annual compensation
greater than the dollar limitation in effect under Code
Section 415(c)(1)(A) and owning (or considered as owning,
within the meaning of the constructive ownership rules of the
Code) more than one-half percent (.5%) interest in the value
and the largest percentage interests in an Affiliated
Employer. An Employee who has such an ownership interest is
considered to have one (1) of the largest interests in the
Affiliated Employer unless at least ten (10) other Employees
own a greater interest than that Employee during any year in
the testing period and such other employees have annual
compensation during such Plan Year of ownership greater than
the dollar limitation in effect under Code Section
415(c)(1)(A) for the Plan Year. Ownership shall be determined
on the basis of percentage of ownership interest in total
ownership value and not dollar amounts.
(c) Any person who owns (or is considered as owning within the
meaning of the constructive ownership rules of the Code) more
than five percent (5%) of the outstanding stock of an
Affiliated Employer or possessing more than five percent (5%)
of the combined total voting power of an Affiliated Employer.
(d) A one percent (1%) owner of the outstanding stock of an
Affiliated Employer having an annual compensation from the
Affiliated Employer of more than one hundred fifty thousand
dollars ($150,000).
For purposes of this Section 15.6, compensation shall mean
compensation as defined in Code Section 414(q)(7).
For purposes of Subsections (a), (b), (c), and (d) of this definition,
a Beneficiary of a key employee shall be treated as a key employee.
For purposes of Subsections (c) and (d), each Affiliated Employer is
treated separately in determining ownership percentages; but in
determining the amount of compensation, each Affiliated Employer is
taken into account.
15.7 Non-Key Employee. The term "non-key employee" means any Employee
and any Beneficiary of an Employee who is not a key employee.
15.8 Collective Bargaining Rules. The provisions of Sections 15.2 and
15.3 do not apply with respect to any Employee included in a unit
of employees covered by a collective bargaining agreement unless
the application of such sections has been agreed on with the
collective bargaining agent.
<PAGE>
ARTICLE 16
MISCELLANEOUS
16.1 Limitation on Distributions. Notwithstanding any provision of
this Plan regarding payment to Beneficiaries or Participants, or
any other person, the Committee may withhold payment to any person
if the Committee determines that such payment may expose the Plan
to conflicting claims for payment. As a condition for any
payments, the Committee may require such consent, representations,
releases, waivers or other information as it deems appropriate.
The Committee may, in its discretion, comply with the terms of any
judgment or other judicial decree, order, settlement or agreement
including, but not limited to, a Qualified Domestic Relations
Order as defined in Code Section 414(p).
16.2 Limitation on Reversion of Contributions. Except as provided in
subsections (a) through (c) below, Employer contributions, if any,
made under the Plan will be held for the exclusive benefit of
Participants or Beneficiaries and may not revert to the Employer.
(a) A contribution made by the Employer, if any, under a mistake
of fact may be returned to the Employer within one (1) year
after it is contributed to the Plan.
(b) A contribution conditioned on the Plan's initial qualification
under Code Sections 401(a) and 501(a) may be returned to the
Employer if the Plan does not qualify within one (1) year
after the date the Plan is denied qualification.
(c) A contribution conditioned upon its deductibility under Code
Section 404 may be returned, to the extent the deduction is
disallowed, to the Employer within one (1) year after the
disallowance.
The maximum contribution that may be returned to the Employer, if any,
will not exceed the amount actually contributed to the Plan, or the
value of such contribution on the date it is returned to the Employer,
if less.
16.3 Voluntary Plan. The Plan is purely voluntary on the part of the
Employer and neither the establishment of the Plan nor any Plan
amendment nor the creation of any fund or account, nor the payment
of any benefits will be construed as giving any Employee or any
person legal or equitable right against the Employer, any Funding
Agent or other Funding Agent, or the Committee unless specifically
provided for in this Plan or conferred by affirmative action of
the Committee or the Employer according to the terms and
provisions of this Plan. Such actions will not be construed as
giving any Employee or Participant the right to be retained in the
service of the Employer. All Employees and/or Participants will
remain subject to the discharge to the same extent as though this
Plan had not been established.
16.4 Nonalienation of Benefits. Participants and Beneficiaries are
entitled to all the benefits specifically set out under the terms
of the Plan, but neither those benefits nor any of the property
rights in the Plan are assignable or distributable to any creditor
or other claimant of a Participant or Beneficiary. A Participant
will not have the right to anticipate, assign, pledge, accelerate,
or in any way dispose of or encumber any of the monies or benefits
or other property that may be payable or become payable to such
Participant or his Beneficiary provided, however, the Committee
shall recognize and comply with a valid Qualified Domestic
Relations Order as defined in Code Section 414(p).
16.5 Inability to Receive Benefits. If the Committee receives evidence
that a person entitled to receive any payment under the Plan is
physically or mentally incompetent to receive payment and to give
a valid release, and another person or any institution is
maintaining or has custody of such person, and no guardian,
committee, or other representative of the estate of such person
has been duly appointed by a court of competent jurisdiction, then
any distribution made under the Plan may be made to such other
person or institution. The release of such other person or
institution will be a valid and complete discharge for the payment
of such distribution.
16.6 Missing Persons. If the Committee is unable, after reasonable and
diligent effort, to locate a Participant or Beneficiary where no
contingent beneficiary is provided under the Plan, who is entitled
to a distribution under the Plan, the distribution due such person
will be forfeited after five (5) years. If, however, such a
person later files a claim for such benefit, it will be reinstated
without any interest earned thereon. In the event that a
distribution is due to a Beneficiary where a contingent
beneficiary is provided under the Plan (including the situation on
which the contingent beneficiary is the Participant's estate), and
the Committee is unable, after reasonable and diligent effort, to
locate the Beneficiary, the benefit shall be payable to the
contingent beneficiary, and such non-locatable Beneficiary shall
have no further claim or interest hereunder. Notification by
certified or registered mail to the last known address of the
Participant or Beneficiary will be deemed a reasonable and
diligent effort to locate such person.
16.7 Limitation of Third-Party Rights. Nothing expressed or implied in
the Plan is intended or will be construed to confer upon or give
to any person, firm, or association other than the Employer, the
Participants, or the Beneficiaries, and their successors in
interest, any right, remedy, or claim under or by reason of this
Plan except pursuant to a Qualified Domestic Relations Order as
defined in Code Section 414(p).
16.8 Invalid Provisions. In case any provision of this Plan is held
illegal or invalid for any reason, the illegality or invalidity
will not affect the remaining parts of the Plan. The Plan will be
construed and enforced as if the illegal and invalid provisions
had never been included.
16.9 One Plan. This Plan may be executed in any number of
counterparts, each of which will be deemed an original and the
counterparts will constitute one and the same instrument and may
be sufficiently evidenced by any one counterpart.
16.10 Use and Form of Words. Whenever any words are used herein in the
masculine gender, they will be construed as though they were also
used in the feminine gender in all cases where that gender would
apply, and vice versa. Whenever any words are used herein in the
singular form, they will be construed as though they were also
used in the plural form in all cases where the plural form would
apply, and vice versa.
16.11 Headings. Headings to Articles and Sections are inserted solely
for convenience and reference, and in the case of any conflict,
the text, rather than the headings, shall control.
16.12 Governing Law. The Plan will be governed by and construed
according to the federal laws governing employee benefit plans
qualified under the Code and according to the laws of the state of
California where such laws are not in conflict with the federal
laws.
<PAGE>
IN WITNESS WHEREOF, Ameron, Inc. has adopted this Plan effective January 1,
1993.
AMERON, INC.
/s/ Gary Wagner
ATTEST: By:_________________________________________
Title: Vice President
/s/ Joan Hague
By: ________________________________
Date: January 15, 1993
/s/ Javier Solis
By:_________________________________________
Title: Secretary
<PAGE>
AMENDMENT 1995-1
TO THE
AMERON, INC. 401(K) RETIREMENT SAVINGS PLAN
This Amendment is made by the Board of Directors of Ameron, Inc. (The
"Company") to be effective January 1, 1994, or as otherwise noted.
1. Section 1.12 shall be amended by inserting the following:
Notwithstanding the foregoing, for Plan Years beginning on or after
January 1, 1994, the applicable annual Compensation limit is one
hundred and fifty thousand dollars ($150,000), as adjusted annually
for cost of living in accordance with Code Section 401(a)(17).
2. Section 1.30 shall be amended by inserting the following definition:
COMPENSATION shall mean Compensation as defined in Section 1.12 of the
Plan.
3. Section 5.1(a) shall be amended by changing the third sentence to read
as follows:
The amount of stock allocated to the Employer Contribution Account for
each Participant will equal 50% of his/her contributions for such
Valuation Period to a maximum of 3% of his/her total Compensation for
such Valuation Period.
4. Section 6.09 shall be amended by adding 6.9(c) as follows:
Notwithstanding the foregoing, for purposes of this Section 6.9 the
term compensation shall mean the portion of Compensation earned by the
Participant during the period of actual participation in the Plan.
However, for the purposes of determining Code Section 415 limits,
those items that were excluded from Compensation in Section 1.12 shall
be included.
5. Section 10.3(a) shall be amended by inserting the word PRETAX between
the words EMPLOYEE and CONTRIBUTION.
6. Section 10.4 shall be amended to include the following:
Notwithstanding the foregoing, upon Plan termination, partial Plan
termination or upon complete discontinuance of contributions, affected
Participants shall become one hundred percent (100%) vested.
7. Section 10.5 shall be amended by adding the following language to the
first paragraph:
Notwithstanding the foregoing, only a non-vested participant can be
deemed cashed-out and a vested employee may not forfeit his or her
account balance prior to receiving a cash-out upon termination of
service.
8. Section 1.16 shall be amended to read as follows:
EFFECTIVE DATE shall mean April 1, 1989, restated January 1,
1993.
9. Article 15 shall be restated as follows:
ARTICLE 15
TOP-HEAVY PLAN REQUIREMENTS
15.1 GENERAL RULE. For any Plan Year for which the Plan is a Top-Heavy
Plan as defined in Section 15.4, any other provisions of the Plan to
the contrary notwithstanding, the Plan shall be subject to the
provisions of this Article 15.
15.2 VESTING PROVISION. Each Participant who has completed an Hour of
Service during the Plan Year the Plan is a To-Heavy Plan shall have a
nonforfeitable right to the percentage of the previous Employer
Account (other than the Qualified Nonelective Contribution subaccount)
under this Plan, in accordance with Section 10.3.
Each Participant's vested portion of his Employer Account shall not be
less than his vested Employer Account determined as of the last day of
the last Plan Year in which the Plan was not a Top-Heavy Plan. If the
Plan ceases to be a Top-Heavy Plan, an employee with three or more
years of employment, whether or not consecutive, shall have the bested
portion of his Employer Account determined in accordance with Section
10.3.
15.3 COORDINATION WITH OTHER PLANS. In the event that another defined
contribution plan or defined benefit plan maintained by the Employer or any
Affiliated Employer provides contributions or benefits on behalf of
Participants in the Plan, such other plan shall be treated as part of this
Plan pursuant to applicable principles (such as Rev. Rule. 81-202 or any
successor ruling) in determining whether this Plan satisfies the
requirements of Sections 15.6, 15.7 and 15.8.
15.4 DETERMINATION OF TOP-HEAVY STATUS. The Plan will be a Top-Heavy Plan
for any Plan Year if, as of the Determination Date, the aggregate of the
Value of Accounts under the Plan for Key Employees (including former
employees who are Key Employees) exceeds sixty percent (60%) of the
aggregate of the Value of Accounts of all employees, including former Non-Key
Employees, or if this Plan is required to be in an Aggregation Group,
any such Plan Year within such Group is a Top-Heavy Group.
For purposes of this Section, the capitalized words have the following
meaning:
(a) AGGREGATION GROUP means the group of plans, if any, that includes both
the group of plans required to be aggregated and the group of plans
permitted to be aggregated.
The group of plans required to be aggregated (the "required aggregation
group") includes:
(i)each plan of the Employer and/or Related Employer in which a Key
Employee is a participant; and
(ii)each other plan of the Employer and/or Related Employer which enables a
plan in which a Key Employee is a participant to meet the requirements of
the Code, prohibiting discrimination as to contributions or benefits in
favor of employees who are officers, shareholders, or the highly
compensated or prescribing the minimum participation standards.
The group of plans that are permitted to be aggregated (the "permissive
aggregation group") includes the required aggregation group plus one or
more plans of the Employer and/or a Related Employer that is not part of
the required aggregation group and that the Employer certifies as a plan
within the permissive aggregation group. Such plan or plans may be added
to the permissive aggregation group only if, after the addition, the
aggregation group as a whole continues not to discriminated as to
contributions or benefits in favor of officers, shareholders, or the highly
compensation and to meet the minimum participation standards under the
Code.
(b) DETERMINATION DATE means for any Plan Year the last day of the
immediately preceding Plan Year.
(c) KEY EMPLOYEE means any employee or former employee who, at any time
during the Plan Year in question or during any of the four preceding Plan
Years, is or was one of the following:
(i)an officer of the Employer and/or a Related Employer having annual
compensation in excess of fifty percent (50%) of the dollar limitation
under Code Section 415(b)(1)(A). Whether an individual is an officer shall
be determined by the Employer on the basis of all facts and circumstances,
such as an individual's authority, duties, and term of office, not on the
mere fact that the individual has the title of an officer. For any such
Plan Year, officers will be no more than the fewer of: (A) fifty employees;
or (B) the greatest of three employees or ten percent (10%) of the
employees.
For this purpose, the highest-paid officers shall be selected.
(ii)one of the ten (10) employees having annual compensation from the
Employer or from a Related Employer in excess of the amount in effect under
Code Section 415(c)1)A)and owning (or considered as owning, within the
meaning of the constructive ownership rules of the Code) the largest
interests of the Employer in any Related Employer. If two (2) employees
have the same interest in the Employer or a Related Employer, the employee
having the greater annual compensation shall be treated as having the
greatest interest. An Employee will not be considered a top ten owner for
a Plan Year if the Employee earns less than the maximum dollar limitation
on contributions and other annual additions to a Participant's account in a
defined contribution plan under the Code, as in effect for the calendar
year in which the Determination Date falls.
(iii)any person who owns (or is considered as owning, within the
meaning of the constructive ownership rules of the Code) more than five
percent (5%) of the outstanding stock of the Employer or a Related Employer
or stock possessing more than five percent (5%) of the combined voting
power of all stock of the Employer or Related Employer.
(iv)a one percent (1%) owner of the Employer or a Related Employer
having an annual compensation from the Employer and all Related Employers
of more than one hundred fifty thousand dollars($150,000) and possessing
more than one percent (1%) of the combined total voting power of all stock
of the Employer and Related Employers of more than one percent (1%) of the
outstanding stock of the Employer and Related Employers. For purposes of
this subsection, compensation means all items includable as compensation
for purposes of applying the limitations on contributions and other annual
additions to a Participant's account in a defined contribution plan and the
maximum benefit payable under a defined benefit plan under the Code.
(d)NON-KEY EMPLOYEE means any employee (and any beneficiary of an employee)
who is not a Key Employee.
(e)TOP-HEAVY GROUP means the Aggregation Group, if as of the applicable
Determination Date, the sum of the present value of the cumulative accrued
benefits for Key Employees under all defined benefit plans included in the
Aggregation Group plus the aggregate of the Value of Accounts of Key
Employees under all defined contribution plans included in the Aggregation
Group exceeds sixty percent (60%) of the sum of the present value of the
cumulative accrued benefits for all employees, excluding former Key
Employees, under all such defined benefit plans plus the aggregate Value of
Accounts for all employees, excluding former Key Employees, under all such
defined contribution plans. If the Aggregation Group that is a Top-Heavy
Group is a required aggregation group, each plan in the group will be a
Top-Heavy Plan. If the Aggregation Group that is a Top-Heavy Group is a
permissive aggregation group, only those plans that are part of the
required aggregation group will be treated as Top-Heavy Plans. If the
Aggregation Group is not a Top-Heavy Group, no plan within such a group
will be a Top-Heavy Plan. The accrued benefit of a Participant other than
a Key Employee shall be determined under (i) the method, if any, that
uniformly applies for accrual purposes under all defined benefit plans
maintained by the Participating Employer, or (ii) if there is no such
method, as if such benefit accrued not more rapidly than the slowest
accrual rate permitted under the fractional rule of Code Section
411(b)1)C).
(f)VALUE OF ACCOUNTS means the sum of (i) the value, as of the most recent
Valuation Date occurring within the twelve (12) months ending on the
Determination Date, of the Participant's Accounts, and (ii) contributions
due to such Accounts as of the Determination Date, minus (iii) withdrawals
from such Accounts since such Valuation Date.
In determining whether this Plan constitutes a Top-Heavy Plan, the Employer
(or its agent) will make the following adjustments:
(I)When more than one plan is aggregated, the Employer shall determine
separately for each plan as of each plan's Determination Date the present
value of the accrued benefits or account balance. The results shall then
be aggregated by adding the results of each plan as of the Determination
Dates for such plans that fall within the same calendar year.
(ii)In determining the present value of the cumulative accrued benefit
or the amount of the account of any employee, such present value or account
will include the amount in dollar value of the aggregate distributions made
to such employee under the applicable plan during the five (5) year period
ending on the Determination Date unless reflected in the value of the
accrued benefit or account balance as of the most recent Valuation Date.
The amounts will include distributions to employees representing the entire
amount credited to their accounts under the applicable plan and
distributions under a terminated plan which if it had not been terminated
would have been required to be included in an aggregation group.
(g) Further, in making such determination, such present value of such
account shall include any rollover contribution (or similar transfer), as
follows:
(i) If the rollover contribution (or similar transfer) is initiated by
the employee and made to or from a plan maintained by the employer and/or a
related employer, the plan providing the distribution shall include such
distribution in the present value of such account; the plan accepting the
distribution shall not include such distribution, in the present value of
such account unless the plan accepted it before December 31, 1983.
(ii)If the rollover contribution (or similar transfer) is not initiated
by the employee or is made from a plan maintained by the Employer and/or a
Related Employer, the plan accepting the distribution shall include such
distribution in the present value of such account, whether the plan
accepted the distribution before or after December 31, 1983; the plan
making the distribution shall not include the distribution in the present
value of such account.
(iii)In any case, where an individual is a Non-Key Employee with
respect to an applicable plan but was a Key Employee with respect to such
plan for any prior Plan Year, any accrued benefit and any account of such
employee will be altogether disregarded.
For this purpose, to the extent that a Key Employee is deemed to be a Key
Employee if he met the definition of Key Employee within any of the four
preceding Plan Years, this provision will apply following the end of such
period of time.
(h) Further, in making such determination, if an individual has not
performed any services for the Employer or Participating Employer at any
time during the five (5) year period ending of the Determination Date, such
present value of such account will be altogether disregarded.
15.5 COLLECTIVE BARGAINING RULES. The provisions of Sections 15.2 and 15.3
do not apply with respect to any Employee included in a unit of employees
covered by a collective bargaining agreement unless the application of such
sections has been agreed on with the collective bargaining agent.
15.6 MINIMUM CONTRIBUTION PROVISIONS. Each Participant who (i) is a Non-Key
Employee, as defined in Section 15.4 and (ii) is employed on the last
day of the Plan Year, even if such individual has failed to complete one
thousand (1,000) Hours of Service during such Plan Year or did not make
Deferral Contributions in such Plan Year, will be entitled to have the
aggregate of contributions allocated to his Employer Matching Contribution
Account, Employer Discretionary Contributions Accounts, and his Deferral
Account equal to not less than three percent (3%) (the Minimum Contribution
Percentage) of his compensation. The compensation considered hereunder is
compensation as defined in section 6.9(c) adjusted as described in Section
15.8. The Minimum Contribution Percentage will be reduced for any Plan
Year to the percentage at which such contributions are made or are required
to be made under the Plan for the Plan Year for the Key Employee for whom
such percentage is the highest for such Plan Year. For this purpose, the
percentage with respect to a Key Employee, as defined in Section 15.6, will
be determined by dividing such contributions made for such Key Employee by
the amount of his total compensation for the Plan Year that does not exceed
one hundred and fifty thousand ($150,000) (Multiplied by the Adjustment
Factor).
Such amount will be adjusted in the same manner as the amount set forth in
Section 15.7 below.
Contributions considered under the first paragraph of this Section 15.6
will includes the contributions described above under this Plan and
contributions under all other defined contribution plans required to be
included in an Aggregation Group (as defined in Section 15.3 above), but
will not include any plan required in such aggregation group if the plan
enables a defined contributions plan required to be included in such group
to meet the requirements of the Code, prohibiting discrimination as to
contributions in favor of employees who are officers, shareholders, or the
highly compensated or prescribing the minimum participation standards.
Contributions considered under this Section will not include any
contributions under the Social Security Act or any other federal or state
law.
Notwithstanding the foregoing, Employer Matching Contributions allocated to
Key Employees shall be treated as Employer contributions for purposes of
determining the minimum contribution required. Elective contributions on
behalf of Key Employees shall also be taken into account in determining the
minimum contribution required.
Notwithstanding the foregoing, for a year in which the Plan is top-heavy,
each non-key employee will receive a minimum contribution if the
Participant has not separated from service at the end of the Plan Year,
regardless of whether the non-key employee has less than 1,000 hours of
service. In addition, for any year in which the Plan is top-heavy, each
non-key employee will receive a minimum contribution if the Participant has
not separated from service at the end of the Plan Year, regardless of the
non-key employee's level of compensation. Finally, in any year in which
the Plan is top-heavy, each non-key employee will receive a minimum
contribution if the Participant has not separated from service at the end
of the Plan Year, regardless of whether the employee declines to make a
mandatory contribution to a plan that generally requires such a
contribution.
15.7 LIMITATION ON COMPENSATION. Annual Participant's compensation taken
into account under this Article XV for purposes of computing benefits under
this Plan will not exceed the first one hundred and fifty thousand dollars
($150,000)(multiplied by the Adjustment Factor). The compensation
considered under this Article SV shall be the Participating Employer under
a salary reduction agreement that are not includable in an Employee's gross
income under Code Sections 125, 401(a)(8), 402(h) or 403(b). The dollar
limitation will be adjusted automatically for each Plan Year to the amount
prescribed by the Secretary of the Treasury or his delegate pursuant to
regulations for the calendar year in which such Plan Year commences.
15.8 LIMITATION ON CONTRIBUTIONS. In the event that the Employer or a
Related Employer also maintains a defined benefit plan providing benefits
on behalf of Participants in this Plan, one of the two following provisions
will apply:
(a) if for the Plan Year this would not be a Top-Heavy Plan if "ninety
percent" (90%) were substituted for "sixty percent (60%) in Section 15.4,
then the percentage of three percent (3%) used in Section 15.9 is changed
to four percent (4%); or
(b) if for the Plan Year the plan would continue to be a Top-Heavy Plan
if "ninety percent" (90%) were substituted for "sixty percent" (60%) in
Section 15.4, then the denominator of both the defined contribution plan
fraction and the defined benefit plan fraction will be calculated as set
forth in Section 6.9 for the limitation year ending in such Plan Year by
substituting "one (1)" for "one and twenty-five hundredths (1.25)" in each
place such figure appears. This subsection (b) will not apply for such
Plan Year with respect to any individual for whom there are no Employer
contributions or forfeitures allocated to his Employer matching
contributions account, Employer's discretionary contributions account, or
his deferral account or accruals earned under the defined benefit plan, if
any.
15.9 Notwithstanding the foregoing, if an employer maintains more than one
plan, the top-heavy minimums must be properly coordinated by specified
approach: (i) provide appropriate minimums in each plan, (ii) provide a
defined benefit minimum in the defined benefit plan, which is offset by the
benefits provided under the defined contribution plan, (iii) make a
comparability analysis to prove that the defined contribution plans are
providing benefits at least equal to the minimum defined benefit, (iv)
provide a safe harbor minimum contribution plan. If contributions and
forfeitures under the defined contribution plan equal 5 percent (5%) of
compensation for each year the Plan is top-heavy, such minimum will be
presumed to satisfy the section 416 minimum.
If the top-heavy ratio does not exceed 90% and the Employer uses a factor
of 1.25 in the denominator of the IRC 415 fraction, one of the following
approaches must be met: (i) A defined benefit minimum of 3% per year of
service (up to 30%) is provided or (ii) for participant's covered only be a
defined contribution plan, a defined contribution minimum of 4$ is
provided, or (iii) for Participants covered by both types of plans,
benefits from the defined contribution minimum are comparable to the 3%
defined benefit minimum. Or (iv) the plan provides a floor offset where the
floor is a 3% defined benefit minimum, or (v) a defined contribution
minimum of 7 1/2% of compensation is provided for any non-key employee who
is covered under both a defined benefit plan and a defined contribution
plan (each of which is top-heavy) of an employer.
Notwithstanding the foregoing, the Employer reserves the right to amend the
Plan to reflect the approach that is to be used by the Plan in the case of
top-heaviness.
IN WITNESS WHEREOF, the Company has executed the foregoing instrument on
this 6th day of January 1994.
AMERON, INC.
/s/ Gary Wagner, Senior Vice President
______________________________
<PAGE>
AMENDMENT 1996-1
TO THE
AMERON, INC. 401(k) RETIREMENT SAVINGS PLAN
This Amendment is made by the Board of Directors of Ameron, Inc. (the
"Company") to be effective
January 1, 1996.
1. Section 1.1 shall be amended by eliminating it in its entirety and
inserting the following:
"Account" shall mean, with respect to any Participant, his Employee
Pretax Contribution Account and Employer Contribution Account, Loan
Account, and Rollover Account and shall, as to each such Account,
include any subaccount established thereunder.
2. Section 4.4 shall be amended by changing "2% to 15%" to "1% to 15%".
3. Section 5.1(a) shall be amended by eliminating it in its entirety and
inserting the following:
At the discretion of the Board of Directors, the Employer may contribute
out of its income for the current fiscal year and/or accumulated earned
surplus for such fiscal year before all federal income taxes and excess
profits to the Plan an amount that, when added to the aggregate of
available forfeitures under this Plan, equals the sum of the amounts to
be allocated during such Valuation Period to the Employer Contribution
Account of each Participant. The amount allocated to the Employer
Contribution Account for each Participant will equal
(1) an amount determined by multiplying 50% times a Participant's
matched contributions which are greater than 0% but not greater
than 2% of a Participant's Compensation for such Valuation Period,
plus
(2) an amount determined by multiplying a Company Match percentage
(adjusted according to the following table) by a Participant's
matched contributions which are greater than 2% but not greater
than 6% of a Participant's Compensation:
ROE Company Match
ROE less than or equal to 10% None
ROE greater than 10% and less than or equal to 12% 5%
ROE greater than 12% and less than or equal to 13% 15%
ROE greater than 13% and less than or equal to 14% 30%
ROE greater than 14% and less than or equal to 15% 50%
ROE greater than 15% and less than or equal to 16% 65%
ROE greater than 16% and less than or equal to 17% 80%
ROE greater than 17% and less than or equal to 18% 90%
ROE greater than 18% 100%
Notwithstanding any other provisions to the contrary in this Plan,
subsections (I) Employer Contributions and (ii) Qualified Nonelective
Contributions shall be credited to the Participant's Account as follows:
(I) Employer Contributions associated with subsection (1) above shall
be credited monthly to the Participant's Account and Employer
Contributions associated with subsection (2) above shall be
credited to the Participant's Account following public disclosure
of audited financials for the Company, but in no event later than
the date Company tax returns are filed.
(ii) Qualified Nonelective Contributions shall be credited annually, to
the Participant's Account, if the Participant is an active
Participant on the last day of the Plan Year.
4. Sections 8.1 shall be amended by changing the term "Pretax
Contributions" to "Employee Pretax Contributions and Employer
Contributions".
5. Sections 8.2 shall be amended by changing the term "Pretax
Contributions" to "Employee Pretax Contributions and Employer
Contributions".
6. Sections 8.3 shall be amended by changing the term "Pretax
Contributions" to "Employee Pretax Contributions and Employer
Contributions".
IN WITNESS WHEREOF, the Company has executed the foregoing instrument on
this 9th day of January, 1996.
AMERON, INC.
/s/ Gary Wagner, Senior Vice President
_____________________________
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
January 13, 1997 included in Ameron International Corporation's Form 10-K
for the year ended November 30, 1996 and our report dated September 25,
1997 included in Ameron International Corporation's Form 11-K for the year
ended December 31, 1996.
ARTHUR ANDERSEN LLP
Los Angeles, California,
September 25, 1997.
