As filed with the Securities Exchange Registration No.
Commission on December 28, 1995
==========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PLYMOUTH RUBBER COMPANY, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Massachusetts 04-1733970
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
104 Revere Street, Canton, MA 02021
(617) 828-0220
(Address of registrant's Principal Executive Offices)
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Plymouth Rubber Company Retirement Savings & Profit Sharing Plan
(Full Title of the Plans)
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DUANE E. WHEELER, VICE PRESIDENT, FINANCE
Plymouth Rubber Co., Inc.
104 Revere Street, Canton, MA 02021
(617) 828-0220
(Name, Address and Telephone number of Agent For Service)
----------------------
Copies to:
DEBORAH A. KREAM, ESQUIRE
PLYMOUTH RUBBER COMPANY, INC.
104 Revere Street, Canton, MA 02021
(617) 828-0220
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This Registration Statement on Form S-8 consists of 73 pages (including
exhibits). The index to exhibits is set forth on sequentially numbered Page
8.
C A L C U L A T I O N O F R E G I S T R A T I O N F E E
Proposed Proposed
Amount Maximum Maximum
Title of Each Class to be Offering Aggregate Amount
of Securities to be Registered Price Per Offering Registration
Registered (Shares)(1) Share (2) Price (2) fee
Class A Common Stock 100,000 $10.125 $1,012,500 $349.14
$1.00 par value
(1) This Registration Statement also covers such indeterminable number of
additional shares of Common Stock as may become deliverable as a result
of stock splits, stock dividends or similar transactions in accordance
with the provisions of the Plans.
(2) Determined on the basis of the average of the high and low sales prices
of the Class A Common Stock reported in the American Stock Exchange,
Inc. quotations for the last known sale on December 20, 1995, solely
for the purposes of calculating the registration fee, in accordance
with Rule 457 (c) under the Securities Act of 1933.
This Registration Statement will become effective automatically upon
the date of filing, pursuant to the provisions of Section 8 of the
Securities Act of 1933 and Rule 462 enacted thereunder, or such other day as
the Commission acting pursuant to said Section 8 may determine.
The approximate date of proposed sale to the public and cross reference
sheet called for by Items 501(a) and (b) of Regulation S-K are not
applicable and have been omitted.
E X P L A N A T O R Y N O T E
This Registration Statement on Form S-8 covers the registration of
100,000 shares of Class A Common Stock being made available for purchase on
the open market through the Plymouth Rubber Company Class A Common Stock
Fund (the "Company Stock Fund") as one of the Investment Funds in which a
participant may direct the Plan Trustee to invest his/her Employer Elective
Contribution, Salary Reduction Contribution and Matching Contribution
pursuant to the Company's Retirement Savings & Profit Sharing Plan (the
"Plan").
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
PART I
Pursuant to the instructions in Part I of Form S-8, the
information required by Item 1, Plan Information, and Item 2,
Registrant Information and Employee Plan Annual Information, of
Form S-8 has not been filed as part of this Registration
Statement.
PART II
Form 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the
Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act") are incorporated by
reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year
ended December 2, 1994;
(b) The Company's Quarterly Reports on Form 10-Q for the
quarterly periods ended March 3, 1995, June 2, 1995, and September
1, 1995.
(c) The Company's Form 11-K for Annual Reports of Employee
Stock Purchase Savings and similar plans pursuant to Section 15(d)
of the Securities Exchange Act of 1934 for the period ended
December 31, 1994.
(d) The description of the Company's Common Stock included
in the Company's registration thereof under Section 12 of the
Exchange Act, including all amendments and reports amending such
description.
In addition, all documents filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference in this Registration Statement and
to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement
to the extent that a statement contained therein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute part
of this Registration Statement.
1
The financial statements of the Company included in the
Company's Annual Report on Form 10-K for the fiscal year ended
December 2, 1994, have been audited by Price Waterhouse LLP,
independent auditors, as set forth in their report included
therein and incorporated herein by reference. Such financial
statements are, and audited financial statements to be included in
subsequently filed documents will be, incorporated herein by
reference in reliance upon the reports of Price Waterhouse LLP
pertaining to such financial statements (to the extent covered by
consents filed with the Securities and Exchange Commission).
Item 4. Description of Securities.
See Item 3(c) herein.
Item 5. Interests of Named Experts and Counsel.
To the best knowledge of the Registrant, no expert or
counsel named herein or in the Information Statement delivered
pursuant to the requirements of Part I of the Registration
Statement has any substantial interest, direct or indirect, in any
matter connected with this registration Statement and the
preparation an filing thereof.
Item 6. Indemnification of Officers and Directors.
Consistent with applicable provisions of the
Massachusetts Business Corporation Law, the Company's By-Laws
provide that the Company's directors and officers may be
indemnified by the Company from and against any claims,
liabilities and expenses to which they may become subject by
reason of being an officer or director, except with respect to any
matter as to which such officer shall have been adjudicated by a
court of competent jurisdiction not to have acted in good faith in
the reasonable belief that his or her action was in the best
interests of the Company. The Company has purchased and maintains
insurance coverage under a policy insuring directors and officers
of the Company, which may include coverage for liabilities arising
under the Securities Act of 1933.
Item 7. Exemption From Registration Claimed.
Not applicable.
2
Item 8. Exhibits.
Following is a list of all applicable exhibits filed
with this Registration Statement pursuant to the requirements of
Item 601 of Regulation S-K:
4.1 Restated Articles of Organization - incorporated by
reference to Exhibit 3(I) to the Company's Annual Report
on Form 10-K for the year ended December 2, 1994.
4.2 Copy of the Company's By-Laws - incorporated by
reference to Exhibit 3(ii) to the Company's Annual
report on Form 10-K for the year ended November 26,
1993.
4.3 Copy of the Registrant's Retirement Savings & Profit
Sharing Plan, including Amendments One through Five.
5. Opinion of Counsel, Deborah A. Kream.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Morris & Morris P.C.
24.1 Power of Attorney (included in signature page hereto).
24.2 Certificate of Vote authorizing signing by Power of
Attorney.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(I) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus (as defined in Part I
of Form S-8) any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information
set forth in the registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
3
Provided, however, that clauses (1)(I) and (1)(ii)
paragraph (1) do not apply to this registration statement on Form
S-8 because 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 Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the registrant or expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registration 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 Boston, Commonwealth of Massachusetts, on the 22nd
Day of December, 1995.
PLYMOUTH RUBBER COMPANY, INC.
By: Maurice J. Hamilburg
Maurice J. Hamilburg, President
Each of the undersigned officers and directors of Plymouth
Rubber Company, Inc. hereby constitutes and appoints Maurice J.
Hamilburg, Deborah A. Kream, Esq., and each of them singly, his or
her true and lawful attorneys or attorney-in-fact and agent, with
full power of substitution and resubstitution, for each of the
undersigned and in each of their name, place and stead, in any and
all capacities, to sign any and all amendment thereto (including
post-effective amendments) to this Registration Statement and all
documents relating thereto and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission. Each of said attorney-in-fact
shall have full power and authority to do and perform each and
every act and thing necessary or advisable to be done in and about
the premises, as fully and to all intents and purposes as each of
the undersigned might or could do in person, hereby ratifying and
confirming all that each said attorney-in-fact and agent, or his
substitutes, may lawfully do or cause to be done by virtue hereof,
and ratifying and confirming our signatures as they may be signed
by each attorney-in-fact and agent, or his substitutes, to this
Registration Statement and any and all amendments thereto.
5
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacity and on the dates indicated.
Signature Title Date
Maurice J. Hamilburg President, Director and 12/16/95
Maurice J. Hamilburg Chief Executive Officer
Duane E. Wheeler Vice President - Finance & 12/16/95
Duane E. Wheeler Treasurer, Chief Financial
Officer and Chief Accounting
Officer
Joseph D. Hamilburg Director 12/16/95
Joseph D. Hamilburg
Jane H. Guy Director 12/16/95
Jane H. Guy
Melvin L. Keating Director 12/16/95
Melvin L. Keating
Susan Y. Friedman Director 12/16/95
Susan Y. Friedman
6
Pursuant to the requirements of the Securities Act of 1933, the
401(k) Plan Committee of Plymouth Rubber Company, Inc. has duly
caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Boston,
Commonwealth of Massachusetts, on December 16, 1995.
By: Maurice J. Hamilburg
Maurice J. Hamilburg,
a member of the 401(k)
Plan Committee of Plymouth
Rubber Company, Inc.
7
INDEX TO EXHIBITS
Exhibit If not filed herein,
No. Description of Document incorporated by reference to
4.1 Restated Articles of Exhibit 3(i) to the
Organization Company's Annual Report
on Form 10-K for the
fiscal year ended
December 2, 1994.
4.2 Company's By-Laws Exhibit 3(ii) to the
Company's Annual Report
on Form 10-K for the
fiscal year ended
November 26, 1993.
4.3 Registrant's Retirement Filed herewith
Savings & Profit Sharing
Plan, including Amendments
One through Five.
5 Opinion of Counsel, Filed herewith
Deborah A. Kream
23.1 Consent of Price Filed herewith
Waterhouse LLP
23.2 Consent of Morris & Filed herewith
Morris P.C.
24.1 Power of Attorney Filed herewith
(Included in signature page
hereto).
24.2 Certificate of Vote Filed herewith
Authorizing Signing by
Power of Attorney.
8
Exhibit 4.3
PLYMOUTH RUBBER COMPANY
RETIREMENT SAVINGS AND
PROFIT SHARING PLAN
AND
TRUST
TABLE OF CONTENTS
Article Page
ARTICLE I Designation of Trust 1
ARTICLE II Definitions 2
ARTICLE III Participation and Service 11
3.01 Participation, Eligibility and service 11
3.02 Participation and Service on Reemployment 11
3.03 Service as an Ineligible Employee 12
3.04 Designation of Beneficiary 12
ARTICLE IV Contributions 14
4.01 Employer Contributions 14
4.02 Participant's Salary Reduction Election 14
4.03 Time of Payment of Employer Contribution 16
4.04 Erroneous Employer Contribution 16
4.05 Rollover Amount From Other Plans 16
ARTICLE V Allocation of Contributions 18
5.01 Separate Accounts 18
5.02 Allocation of Discretionary Contributions 18
5.03 Allocation of Elective Contributions 18
5.04 Allocation of Matching Contributions 18
5.05 Annual Adjustment 18
5.06 Relevant Dates 18
5.07 Directed Investment Account 18
5.08 Maximum Additions 19
5.09 Actual Deferral Percentage Tests 20
5.10 Adjustment to Actual Deferral Percentage
Test 20
5.11 Actual Contribution Percentage Tests 21
5.12 Adjustment to Actual Contribution
Percentage Test 22
ARTICLE VI Payment of Benefits 24
6.01 Normal Retirement 24
6.02 Early Retirement 24
6.03 Disability 24
6.04 Death Benefits 24
6.05 Other Termination of Employment 24
6.06 Forfeitures 24
6.07 Distribution Methods 25
6.08 Distribution Requirements 25
6.09 Commencement of Benefits 28
6.10 Restriction on Immediate Distributions 28
6.11 Cashouts 28
6.12 Vesting After In Service Distribution 29
6.13 Loans to Participants 29
- i -
ARTICLE VII Profit Sharing Accounts 31
7.01 Article Controls 31
7.02 Definitions 31
7.03 Participants' Accounts 33
7.04 Regular Fund 33
7.05 Forfeitures 34
7.06 Voluntary Fund 35
7.07 Transfers to Pension Trust 35
ARTICLE VIII Top Heavy Provisions 36
8.01 Supersession 36
8.02 Minimum Allocation 36
8.03 Top-Heavy Vesting Schedule 36
8.04 Impact on Maximum Benefits 37
ARTICLE IX Administrative Committee 38
9.01 Appointment 38
9.02 Rules 38
9.03 Agents 38
9.04 Construction 38
9.05 Records 38
9.06 Conflict of Interest 38
9.07 Claims 38
9.08 Liability 38
9.09 Indemnification 38
9.10 Administrative Expenses 39
ARTICLE X Trust Fund 40
10.01 The Trust 40
10.02 Investment Powers 40
10.03 Investment Funds 40
ARTICLE XI Accountings 41
11.01 Separate Accounts 41
11.02 Trust Records 41
11.03 Annual Accountings 41
ARTICLE XII General Provisions Concerning the Trustee 42
12.01 Protection 42
12.02 Direction of Committee 42
12.03 Identity of Committee Members 42
12.04 Compensation 42
12.05 Liability 42
12.06 Litigation 42
12.07 Resignation 42
12.08 Valuation 42
- ii -
ARTICLE XIII Amendment; Termination; Exclusive Benefit 43
13.01 Amendments 43
13.02 Action by Employer 43
13.03 Exclusive Benefit 43
13.04 Termination 43
13.05 Amendment to Vesting Schedule 43
ARTICLE XIV Miscellaneous Provisions 44
14.01 Contract of Employment 44
14.02 Benefits from Trust Alone 44
14.03 Spendthrift 44
14.04 Payment to Minor 44
14.05 Merger 44
14.06 Plan Parties 44
14.07 Headings 44
14.08 Gender 44
14.09 Construction 44
- iii -
PLYMOUTH RUBBER COMPANY
RETIREMENT SAVINGS AND
PROFIT SHARING IAN
AND
TRUST
WHEREAS, Plymouth Rubber Company, Inc. (the "Employer") established a
Profit Sharing Plan and Trust (the "Plan") effective as of December 1,
1955; and
WHEREAS, the Employer amended and restated the Plan effective December
1, 1985; and
WHEREAS, the Plan provides that the Employer shall have the right at any
time, and from time to time to amend the Plan; and
WHEREAS, the Employer desires to amend and restate the Plan
NOW THEREFORE, the Employer hereby amends and restates the Plymouth Rubber
Company, Inc, Profit Sharing Plan and Trust effective as of December 1, 1989
except as otherwise indicated, hereafter to be known as the Plymouth Rubber
Company Retirement Savings and Profit Sharing Plan and Trust. The Plan and
Trust are intended to meet the requirements of Sections 401(a) and 501(a) of
the Internal Revenue Code of 1986, as amended from time to time and the
Employee Retirement Income Security Act of 1974, as amended. The provisions
of this Plan and Trust shall only apply to an Employee who terminates his
employment on or after the Effective Date. The rights and benefits of any
former Employee shall be determined under the provisions of the Plan in
effect as of the time of his termination of employment.
- iv -
ARTICLE I
DESIGNATION OF TRUST
1.01 The Plan and Trust shall be known as Plymouth Rubber Company, Inc.
Retirement Savings and Profit Sharing Plan and Trust and is established for the
exclusive benefit of the Participants. The terms of the Plan and Trust are
intended to comply with Sections 401(a) and 501(a) of the Internal Revenue Code
of 1986, as amended, and the provisions of the Employee Retirement Income
Security Act of 1974, as well as all applicable regulations and rulings there-
under, in order that the Plan and Trust may qualify as a tax exempt retirement
plan.
ARTICLE II
DEFINITIONS
2.01 "Account" means the total accounts established and maintained by the
Trustee for each Participant which shall reflect the Participant's share of the
Profit Sharing Fund and his share of the 401(k) Fund.
2.02 "Actual Contribution Percentage" (hereinafter "ACP") means for a specified
group of Participants for a Plan Year, the average of the ratios (calculated
separately for each Participant in such group) of (1) the Participant's Contri-
bution Percentage Amounts for the Plan Year to (2) the Participant's Compensa-
tion for the Plan Year (whether or not the Participant was a Participant for the
entire Plan Year for years beginning after December 31, 1991).
2.03 "Actual Deferral Percentage" (hereinafter "ADP") means for a specified
group of Participants for a Plan Year, the average of the ratios (calculated
separately for each Participant in such group) of (1) the amount of Employer
Elective Contributions allocated to such Participant's Employee Elective
Account for the Plan Year to (2) the Participant's Compensation for such Plan
Year (whether or not the Participant was a Participant for the entire Plan Year
for years beginning after December 31, 1991).
2.04 "Additions" means with respect to each Plan Year, the total of the
Employer Contributions, Employee Contributions and Forfeitures allocated to a
Participant's Account (exclusive of any forfeited amounts reinstated pursuant
to Section 6.06). Additions include amounts allocated after March 31, 1984 to an
individual medical account, as defined in Code Section 415(l) (2) of the Code
which is part of a pension or annuity plan maintained by the Employer and
amounts derived from contributions paid or accrued after December 31,1985, in
taxable years ending after such date, which are attributable to post-retirement
medical benefits allocated to the separate account of a Key Employee, as defined
in Section 419A(d)(3) of the Code, under a welfare benefit fund, as defined in
Section 419(e) of the Code, maintained by the Employer.
2.05 "Administrator" means the Person or Persons designated by the Board of
Directors to administer the Plan. If more than one Person shall be designated,
the Committee thus formed shall be known as the "Administrative Committee" or
"Committee" and all references to the Plan Administrator shall be deemed to
apply to the Administrative Committee. If no person or persons are so desig-
nated, the Employer shall be the Administrator.
2.06 "Affiliated Employer" means the Employer and any corporation which is a
member of a controlled group of corporations (as defined in Section 414(b) of
the Code) which includes the Employer; any trade or business (whether or not
incorporated) which is under common control (as defined in Section 414(c) of
the Code) with the Employer; any organization (whether or not incorporated)
which is a member of an affiliated service group (as defined in Section 414(m)
of the Code) which includes the Employer; and any other entity required to be
aggregated with the Employer pursuant to regulations under Section 414(o) of the
Code.
2.07 "Aggregate Limit" means the sum of (1) 125 percent of the greater of the
ADP of the Participants who are not Highly Compensated Employees for the Plan
Year or the ACP of the Participants who are not Highly Compensated Employees
under the Plan subject to Code Section 401(m) for the Plan Year beginning with
or within the Plan Year of the cash or deferred arrangement and (2) the lesser
of 200% or two plus the lesser of the ADP or ACP.
2.08 "Annual Compensation" and "Compensation" means all of each Participant's
W-2 compensation for the Plan Year as defined in Section 414(s) of the Code.
Amounts contributed by the Employer under the Plan, except amounts deferred
pursuant to Section 4.02, any amounts deferred pursuant to Section 125 of the
Code, and any nontaxable fringe benefits shall not be considered as Compensa-
tion. Solely for purposes of Section 2.02 and Section 2.03 of this Plan,
amounts deferred pursuant to Sections 4.02 and any amounts deferred pursuant
to Section 125 of the Code may be excluded as compensation. The compensation
of each participant taken into account under the plan for any year beginning
after December 31, 1988 shall not exceed $200,000, as adjusted by the Secretary
at the same time and in the same manner as under section 415(d) of the Code.
In determining the compensation of a participant for purposes of this limita-
tion, the rules of section 414(q)(6) of the Code shall apply, except in apply-
ing such rules, the term "family" shall include only the spouse of the partici-
pant and any lineal descendants of the participant who have not attained age 19
before the end of the year. If, as a result of the application of such rules
the adjusted $200,000 limitation is exceeded, the limitation shall be prorated
among the affected individuals in proportion to each such individual's compen-
sation as determined under this section prior to the application of this limi-
tation. For purposes of any allocations of Employer contribution or forfeitures
for the year in which a Participant begins or resumes participation, compensa-
tion before participation began or resumed shall be disregarded.
2.09 "Authorized Leave of Absence" means any absence authorized by the Employer
under the Employer's standard personnel practices provided that all persons
under similar circumstances must be treated alike in the granting of such
Authorized Leaves of Absence and provided further that the Participant returns
within the period of authorized absence, An absence due to service in the Armed
Forces of the United States shall be considered an Authorized Leave of Absence
provided that the absence is caused by war or other emergency, or provided that
the Employee is required to serve under the laws of conscription in time of
peace, and further provided that the Employee returns to employment with the
Employer within the period provided by law.
2.10 "Beneficiary" means the person or persons designated by a participant in
accordance with Section 3.04 to receive all or any portion of the benefits
payable from the Trust Fund under Section 6.04 in the event of the death of a
Participant, or a person considered to be a Beneficiary under Section 3.04.
2.11 "Board of Directors" means the Board of Directors of the Employer.
2.12 "Break in Service" means a Plan Year during which the Participant
does not complete more than 500 hours of service with the Employer.
2.13 "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
2.14 "Contribution Percentage Amounts" means for purposes of the ACP test, any
Matching Contributions plus any Qualified Non-Elective Contributions (to the
extent not taken into account for purposes of the ADP test) plus Elective
Deferrals to the extent the ADP test is met before the Elective Deferrals are
used in the ACP test and continues to be met following the exclusion of those
Elective Deferrals that are used to meet the ACP test. The extent to which any
Qualified Non-Elective Contributions and Elective Deferrals are used to satisfy
the ACP test is subject to such other requirements as may be prescribed by the
Secretary of the Treasury and shall not exceed the amount necessary to meet the
ACP test.
2.15 "Deferred Compensation" means that portion of each Participant's Annual
Compensation that such Participant has elected to defer pursuant to Section
4.02.
2.16 "Determination Date" means for any Plan Year subsequent to the first Plan
Year, the last day of the preceding Plan Year. For the first Plan Year of the
Plan, it means the last day of that year.
2.17 "Disability" means inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment that can
reasonably be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months. The permanence and
degree of such impairment shall be supported by medical evidence.
2.18 "Early Retirement Date" means the first day of the month next following
the date on which a Participant attains his 55th birthday and has completed at
least 10 Years of Service with the Employer.
2.19 "Effective Date" means January 1, 1989, the date on which the provisions
of this Plan and Trust become effective, unless otherwise specified.
2.20 "Elective Deferrals" means the Employer's contributions to the Plan which
are made pursuant to a Participant's deferral election.
2.21 "Eligible Employee" means an Employee described in Section 3.01 who is a
member of an eligible class of Employees for purposes of Plan participation.
2.22 "Employee" means any Employee of the Employer or any Affiliated Employer.
The term Employee shall include any Leased Employee deemed to be an Employee of
any Employer described in the above sentence as provided in Sections 414(n) or
(o) of the Code.
2.23 "Employee Contribution" means a contribution to the Plan made on behalf of
a Participant that is not excludable from the Participant's gross income.
Provided, however this Plan shall not accept Employee Contributions after the
last day of the last Plan Year beginning before December 31, 1986.
2.24 "Employee Elective Account" means that portion of each Participant's
Account attributable to the Elective Deferrals and any Qualified Non-Elective
Contributions.
2.25 "Employer" means Plymouth Rubber Company, Inc. and any Affiliated Employer
and their successors.
2.26 "Employer Contribution Account" means the sum of each Participant's
Employer Non-Elective Profit Sharing Account and his Employer Matching Contribu-
tion Account.
2.27 "Employer Contribution" means for each year the aggregate contribution for
that year made by the Employer.
2.28 "Employment Commencement Date" means the date on which an Employee first
performs an Hour of Service.
2.29 "Employer Elective Contribution" means for purposes of the ADP test,
Elective Deferrals including excess contributions as described in Section 402(g)
of the Code but excluding Elective Deferrals that are taken into account in the
ACP test (provided the ADP test is satisfied both with and without the exclusion
of these contributions), and any Qualified Non-Elective Contributions.
2.30 "Entry Date" means January 1st, April 1st, July 1st and October 1st of
each Year.
2.31 "ERISA" means Public Law 93-406, the Employee Retirement Income Security
Act of 1974, as amended from time to time.
2.32 "Excess Aggregate Contributions" means with respect to any Plan Year the
excess of the contributions actually taken into account in computing the ACP of
Highly Compensated Employees for such Plan Year over the maximum amount
permitted by the ACP test (determined by reducing contributions made on behalf
of Highly Compensated Employees in order of ACPs, beginning with the highest of
such percentages). Such determination shall be made after first determining
Excess Elective Deferrals and then determining Excess Contributions.
2.33 "Excess Contributions" means with respect to any Plan Year, the excess of
the aggregate amount of employer contributions actually taken into account in
computing the ADP of Highly Compensated Employees for such Plan Year over the
maximum amount permitted by the ADP test (determined by reducing contributions
made on behalf of Highly Compensated Employees in order of ADPs, beginning with
the highest of such percentages).
2.34 "Excess Elective Deferrals" means those Elective Deferrals that are
includable in a Participant's gross income under Section 402(g) of the Code to
the extent such Participant's Elective Deferrals for a taxable year exceed the
dollar limitation under such code section. For purposes of determining Excess
Elective Deferrals a Participant's Elective Deferral is the sum of all Employer
Contributions made on behalf of such Participant pursuant to an election to
defer under any cash or deferred arrangement as described in Section 401(k) of
the Code, any simplified employee pension as described under Section 402(h)(1)
(B) of the Code, any eligible deferred compensation plan under Section 457 of
the Code, any plan described in Section 501(c)(18) of the Code, and any employer
contributions to an annuity contract under Section 403(b) of the Code pursuant
to a salary reduction agreement. Excess Elective Deferrals shall be treated as
Additions under the Plan.
2.35 "Family Member" means an individual described in Section 414(q)(6)(B) of
the Code.
2.36 "Fiduciaries" means the Administrative Committee, the Employer, and the
Trustee but only with respect to the specific responsibilities of each for the
Plan and Trust administration, all as described in Articles IX, X, XI, and XII.
2.37 "Forfeitures" means that portion of a Participant's Employer Contribution
Account which is forfeited because of termination of employment before full
vesting and occurs on the last day of the Plan Year in which the Participant
incurs a one year Break-in-Service.
2.38 "Highly Compensated Employee" means both Highly Compensated active
Employees and Highly Compensated former Employees. A Highly Compensated
active Employee includes any Employee who performs service for the Employer
during the determination year and who, during the look-back year: (i) received
compensation from the Employer in excess of $75,000 (as adjusted pursuant to
Section 415(d) of the Code); (ii) received compensation from the Employer in
excess of $50,000 (as adjusted pursuant to Section 415(d) of the Code) and was
a member of the top-paid group for such year; or (iii) was an officer of the
Employer and received compensation during such year that is greater than 50
percent of the dollar limitation in effect under Section 415(b)(1)(A) of the
Code. The term Highly Compensated Employee also includes: (i) Employees who
are described in the preceding sentence if the term "determination year" is
substituted for the term "look-back year" and who are one of the 100 Employees
who received the most compensation from the Employer during the determination
year; and (ii) Employees who are 5 percent owners at any time during the look-
back year or determination year.
If no officer has satisfied the compensation requirement of (iii) above during
either a determination year or look-back year, the highest paid officer for such
year shall be treated as a highly compensated employee. For this purpose, the
determination year shall be the Plan Year. The look-back year shall be the
twelve-month period immediately preceding the determination year. A Highly
Compensated former Employee includes any Employee who separated (or was deemed
to have separated) from service prior to the determination year, performs no
service for the Employer during the determination year, and was a Highly
Compensated active Employee for either the separation year or any determination
year ending on or after the Employee's 55th birthday.
If an Employee is, during a determination year or look-back year, a family
member of either a 5 percent owner who is an active or former Employee or a
Highly Compensated Employee who is one of the 10 most highly compensated
employees ranked on the basis of compensation paid by the Employer during such
year, then the family member and the 5 percent owner or top-ten Highly
Compensated Employee shall be aggregated. In such case, the family member and
5 percent owner or top-ten Highly Compensated Employee shall be treated as a
single Employee receiving compensation and plan contributions or benefits equal
to the sum of such compensation and contributions or benefits of the family
member and 5 percent owner or top-ten Highly Compensated Employee. For purposes
of this section, family member includes the spouse, lineal ascendants and
descendants of the Employee or former Employee and the spouses of such lineal
ascendants and descendants. The determination of who is a Highly Compensated
Employee, including the determinations of the number and identity of Employees
in the top-paid group, the top 100 Employees, the number of Employees treated
as officers and the compensation that is considered, will be made in accordance
with Section 414(q) of the Code and the regulations thereunder.
2.39 "Hours of Service" means
(a) Each hour for which an Employee is paid, or entitled to payment,
for the performance of duties for the Employer.
(b) Up to 501 hours for any single continuous period during which the
Employee performs no duties but is directly or indirectly paid or
entitled to payment by the Employer (regardless of whether employment
has terminated) due to vacation, holiday, illness, incapacity, including
disability, layoff, jury duty, military duty or leave of absence;
excluding, however, any period for which a payment is made or due under
this Plan or under a plan maintained solely for the purpose of complying
with worker's compensation or unemployment compensation or disability
insurance laws, or solely to reimburse the Employee for medical or
medically-related expenses. An Employee shall be deemed to be "directly
or indirectly paid, or entitled to payment by the Employer" regardless
of whether such payment is (i) made by or due from the Employer
directly, or (ii) made indirectly through a trust fund, insurer or other
entity to which the Employer contributes or pays premiums.
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer, without dupli-
cation of hours provided above, and subject to the 501-hour restriction
for periods described in the foregoing subparagraph (b). The foregoing
provisions shall be administered in accordance with Department of Labor
rules set forth in Section 2530.200b-2(b) and (c) of the Rules and
Regulations for Minimum Standards for Employee Benefit Plans, In
addition to, but not in duplication of, the foregoing provisions, an
Employee shall receive service for any period of Authorized Leave of
Absence.
(d) Solely for purposes of determining whether a Break-in Service for
participation and vesting purposes has occurred in a computation period,
an individual who is absent from work for maternity or paternity reasons
shall receive credit for the Hours of Service which would otherwise have
been credited to such individual but for such absence, or in any case in
which such hours cannot be determined, 8 Hours of Service per day of
such absence, except that the total number credited shall not exceed
501, For purposes of this paragraph, an absence from work for maternity
or paternity reasons means an absence (1) by reason of pregnancy of the
individual, (2) by reason of birth of a child of the individual, (3) by
reason of the placement of a child with the individual in connection
with the adoption of such child by such individual, or (4) for purposes
of caring for such child for a period beginning immediately following
such birth or placement. The Hours of Service credited under this
paragraph shall be credited (1) in the computation period in which the
absence begins if the crediting is necessary to prevent a Break-in-
Service in that period, or (2) in all other cases, in the following
computation period.
(e) Hours of service will be credited for employment with other members
of an affiliated service group (under Section 414 (m)), a controlled
group of corporations (under Section 414(b)), or a group of trades or
businesses under common control (under Section 414 (c)) of which the
Employer is a member, and any other entity required to be aggregated
with the employer pursuant to section 414(o) and the regulations there-
under. Hours of service will also be credited for any individual
considered an Employee for purposes of this Plan under Section 414(n)
or Section 414(o) and the regulations thereunder.
2.40 "Ineligible Employee" means an Employee described in Section 3.01 who is
not a member of an eligible class of Employees for purposes of Plan participa-
tion.
2.41 "Key Employee" Any Employee or former Employee (and the beneficiaries of
such Employee) who at any time during the determination period was an officer
of the Employer if such individual's annual compensation exceeds 50 percent of
the dollar limitation under Section 415(b)(1)(A) of the Code, an owner (or
considered an owner under Section 318 of the Code) of one of the ten largest
interests in the Employer if such individual's compensation exceeds 100 percent
of the dollar limitation under Section 415(c)(1)(A) of the Code, a 5-percent
owner of the Employer, or a 1-percent owner of the Employer who has an annual
compensation of more than $150,000. Annual compensation means compensation as
defined in Section 415(c)(3) of the Code, but including amounts contributed by
the Employer pursuant to a salary reduction agreement which are excludable from
the Employee's gross income under Section 125, Section 401(a)(8), Section 402(h)
or Section 403(b) of the Code. The determination period is the Plan Year
containing the Determination Date and the 4 preceding Plan Years.
The determination of who is a Key Employee will be made in accordance with
section 416(i)(1) of the Code and the regulations thereunder.
2.42 "Leased Employee" means any person (other than an Employee of the recipient
Employer) who pursuant to an agreement between the recipient Employer and any
other person ("leasing organization") has performed services for the recipient
Employer (or for the recipient Employer and related persons determined in
accordance with Section 414(n)(6) of the Code) on a substantially full time
basis for a period of at least one year, and such services are of a type
historically performed by employees in the business field of the recipient
Employer. Contributions or benefits provided a Leased Employee by the leasing
organization which are attributable to services performed for the recipient
Employer shall be treated as provided by the recipient Employer.
A Leased Employee shall not be considered an Employee of the recipient Employer
if: (i) such Employee is covered by a money purchase pension plan providing:
(1) a nonintegrated employer contribution rate of at least 10 percent of
compensation, as defined in Section 415(c)(3) of the Code, but including
amounts contributed pursuant to a salary reduction agreement which are
excludable from the Employee's gross income under Section 125, Section 402(a)
(8), Section 402(h) or Section 403(b) of the Code, (2) immediate participation,
and (3) full and immediate vesting; and (ii) Leased Employees do not constitute
more than 20 percent of the recipient's work force.
2.43 "Limitation Year" means for purposes of maximum annual Additions the
12-month period coinciding with the Plan Year.
2.44 "Employer Matching Contribution" means the Employer's Matching Contribu-
tion pursuant to Section 4.01(b).
2.45 "Net Profits" means with respect to any Year the net income of the
Employer determined from the Employer's books and records without deduction for
the Employer's contributions to this Plan for the current Plan Year.
2.46 "Non-Elective Profit Sharing Contribution" means the Employer's contribu-
tions to the Plan pursuant to Section 4.01(c).
2.47 "Non-Highly Compensated" means any Participant or former Participant who
is neither a Highly Compensated Employee nor a Family Member of the Highly
Compensated Employee.
2.48 "Non-Key Employee" means any Employee who is not a Key Employee.
2.49 "Normal Retirement Age" means age sixty-two (62) years.
2.50 "Participant" means any Employee who has qualified to participate in
accordance with Article III.
2.51 "Permissive Aggregation Group" means each plan of the Employer which is
included in a Required Aggregation Group and any other plan or plans of the
Employer which, when considered as a group with the Required Aggregation Group,
continue to satisfy the requirements of Sections 401(a)(4) and 410 of the Code.
2.52 "Plan" means this Retirement Savings and Profit Sharing Plan, as amended
from time to time.
2.53 "Plan Year" means the twelve consecutive month period ending on November
30, 1990. Subsequent Plan Years will end on December 31st. A short Plan Year
will commence on December 1, 1990 and end on December 31st, 1990. Subsequent
Plan Years will commence on January 1st of each year and end on December 31st
of each year.
2.54 "Profit Sharing Account" means that portion of each Participant's account
attributable to Employer Contributions to the Profit Sharing Fund.
2.55 "Profit Sharing Voluntary Account" means that portion of each Partici-
pant's Employee Contributions to the Profit Sharing Fund.
2.56 "Qualified Non-Elective Contributions" means a contribution made by the
Employer which is not made pursuant to a Participant's deferral election but
which is made pursuant to Sections 5.10 or 5.12 in satisfaction of the ADP or
ACP tests.
2.57 "Required Aggregation Group" means each plan of the Employer in which a
Key Employee is a Participant in the Plan Year containing the Determination Date
or any of the four preceding Plan Years (regardless of whether the plan has
terminated) including a plan of a self employed individual and each other plan
of such Employer which enables any plan of the Employer in which a Key Employee
is a Participant to meet the requirements of Sections 401(a)(4) or 410 of the
Code.
2.58 "Rollover Account" means the Account maintained for a Participant to
record amounts transferred to the trust pursuant to Section 4.05.
2.59 "TEFRA" means The Tax Equity and Fiscal Responsibility Act of 1982 and
any regulations thereunder.
2.60 "Top-Heavy Plan" means, for any Plan Year beginning after December 31,
1983, a Plan for which any of the following conditions exist:
(a) The Top Heavy Ratio for the Plan exceeds sixty percent (60%), and
the Plan is not part of any Required Aggregation Group or Permissive
Aggregation Group of plans.
(b) The Plan is a part of a Required Aggregation Group of plans but
not part of a Permissive Aggregation Group and the Top Heavy Ratio for
the group of plans exceeds sixty percent (60%).
(c) The Plan is a part of a Required Aggregation Group and part of a
Permissive Aggregation Group of plans and the Top Heavy Ratio for the
group exceeds sixty percent (60%).
2.61 "Top-Heavy Ratio" means:
(a) If the employer maintains one or more defined contribution plans
(including any Simplified Employee Pension Plan) and the employer has
not maintained any defined benefit plan which, during the 5-year period
ending on the Determination Date(s), has or has had accrued benefits,
the Top-Heavy Ratio for this Plan alone or for the Required or
Permissive Aggregation Group, as appropriate is a fraction, the
numerator of which is the sum of the account balances of all Key
Employees as of the Determination Date(s) (including any part of any
account balance distributed in the 5-year period ending on the Deter-
mination Date(s)), and the denominator of which is the sum of all
account balances (including any part of any account balance distributed
in the 5-year period ending on the Determination Date(s)), both computed
in accordance with Section 416 of the Code and the regulations there-
under. Both the numerator and denominator of the Top-Heavy Ratio are
increased to reflect any contribution not actually made as of the
Determination Date, but which is required to be taken into account on
that date under Section 416 of the Code and the regulations thereunder.
(b) If the Employer maintains one or more defined contribution plans
(including any Simplified Employee Pension Plan) and the Employer main-
tains or has maintained one or more defined benefit plans which during
the 5-year period ending on the Determination Date(s) has or has had any
accrued benefits, the Top-Heavy Ratio for any Required or Permissive
Aggregation Group as appropriate is a fraction, the numerator of which
is the sum of account balances under the aggregated defined contribution
plan or plans for all Key Employees, determined in accordance with (1)
above, and the present value of accrued benefits under the aggregated
defined benefit plan or plans for all Key Employees as of the Deter-
mination Date(s), and the denominator of which is the sum of the account
balances under the aggregated defined contribution plan or plans for all
Participants, determined in accordance with (a) above, and the present
value of accrued benefits under the defined benefit plan or plans for
all Participants as of the Determination Date(s), all determined in
accordance with Section 416 of the Code and the regulations thereunder.
The accrued benefits under a defined benefit plan in both the numerator
and denominator of the Top-Heavy Ratio are increased for any distribu-
tion of an accrued benefit made in the five-year period ending on the
Determination Date.
(c) For purposes of (a) and (b) above the value of account balances and
the present value of accrued benefits will be determined as of the most
recent valuation date that falls within or ends with the 12-month
period ending on the Determination Date, except as provided in Section
416 of the Code and the regulations thereunder for the first and second
plan years of a defined benefit plan. The account balances and accrued
benefits of a Participant (1) who is not a Key Employee but who was a
Key Employee in a prior year, or (2) who has not been credited with at
least one hour of service with any employer maintaining the plan at any
time during the 5-year period ending on the Determination Date will be
disregarded. The calculation of the Top-Heavy Ratio, and the extent to
which distributions, rollovers, and transfers are taken into account
will be made in accordance with Section 416 of the Code and the regula-
tions thereunder. Deductible employee contributions will not be taken
into account for purposes of computing the Top-Heavy Ratio. When
aggregating plans the value of account balances and accrued benefits
will be calculated with reference to the Determination Dates that fall
within the same calendar year.
The accrued benefit of a Participant other than a Key Employee shall be
determined under (1) the method, if any, that uniformly applies for
accrual purposes under all defined benefit plans maintained by the
employer, or (b) if there is no such method, as if such benefit accrued
not more rapidly than the slowest accrual rate permitted under the
fractional rule of Section 411(b)(1)(C) of the Code.
(d) When aggregating plans with different Determination Dates, only
dates falling within the same calendar year will be used.
2.62 "Trust" means the Employer's Retirement Savings and Profit Sharing Trust
created by this Agreement and all amendments thereto.
2.63 "Trust Fund" means the total of the property held in the trusts for the
benefit of the Participants and their beneficiaries. "Profit Sharing Fund"
shall mean the property held in trust for the benefit of Participants and
their beneficiaries as of December 1, 1989 and any future income earned by
such fund. "401(k) Fund" shall mean all contributions made to a trust for the
benefit of Participants and their beneficiaries in accordance with Article IV
of this restated Plan and the earnings thereon.
2.64 "Trustee" means the trustee(s) or any successor trustee or trustees
designated by the Board of Directors.
2.65 "Valuation Date" means the date on which the Trust Fund is valued in
accordance with Section 12.08.
2.66 "Vesting Service" means a Participant's service for purpose of determining
the nonforfeitable portion of his Employer Contribution Account. Subject to the
provisions of Section 3.03, a Participant shall accrue a year of Vesting Service
for each Plan Year in which he accumulates 1,000 Hours of Service. Service with
an Affiliated Employer or a predecessor employer shall be considered service
with the Employer for purposes of vesting. All service prior to the Effective
Date and prior to an Employee becoming a Participant shall be considered for
purposes of vesting.
2.67 "Year" means the Plan Year.
2.68 "Year of Service" means a 12 consecutive month period commencing on the
Employment Commencement Date during which an Employee completed 1,000 or more
Hours of Service and any subsequent Plan Year, including the Plan Year beginning
during the above 12 consecutive month period, during which an Employee performs
1,000 or more Hours of Service.
ARTICLE III
PARTICIPATION AND SERVICE
3.01 Participation, Eligibility and Service shall be determined in accordance
with the following:
(a) Eligible Employees: All Employees of the Employer shall be eligible
for participation in the Plan, except for the following classifications
of Employees:
(i) Employees whose employment is governed by the terms of a
collective bargaining agreement between employee representatives
(within the meaning of Section 7701(a)(46) of the Code) and the
Employer under which retirement benefits were the subject of good
faith bargaining between parties.
(ii) Non-resident aliens who receive no earned income from the
Employer which constitutes income from sources within the United
States.
(iii) Employees of any Affiliated Employer.
(b) Participation: Each Eligible Employee whose employment commence-
ment date is prior to April 1, 1990 shall become a Participant on the
Entry Date next following his completion of one Year of Service. Each
Eligible Employee whose employment commencement date is subsequent to
March 31, 1990 shall become a Participant on the Entry Date next
following his completion of one Year of Service and his attainment of
age 21.
3.02 Participation and Service on Reemployment. Upon the reemployment of any
person who had been previously employed by the Employer, the following rules
shall apply.
(a) Participation: If the Employee is rehired before he has 5
consecutive one-year Breaks in Service, he shall participate in the Plan
as of the date of his reemployment, if he is an eligible employee and
if he previously met the age and service requirements of Section 3.01
(b); or, if not, as of the Entry Date following his reemployment on
which he has completed the requirements of Section 3.01. If an Employee
(whether or not previously a Participant) is rehired after he has 5
consecutive one-year Breaks in Service and after cancellation of pre-
break Service as determined in accordance with paragraph (b) below, he
must meet the requirements of Section 3.01 for Participation in the
Plan as if he were a new Employee. If an Employee is rehired after he
has 5 consecutive one-year Breaks in Service but prior to cancellation
of his pre-break Service as determined in accordance with paragraph (b)
below, he shall recommence Participation as of the date of his
reemployment, if he previously was a Participant; or, if not, as of the
Entry Date following his reemployment on which he has completed the
requirements of Section 3.01.
(b) Service: In the case of a Participant who was vested when his
prior period of employment terminated, any Service attributable to his
prior period of employment shall not be cancelled and shall be rein-
stated as of the date of his reparticipation. In the case of a
reemployed Employee who was not a Participant in the Plan during his
prior period of employment, or in the case of a Participant who was not
vested when his prior period of employment terminated, any service
attributable to his prior period of employment shall be cancelled as of
the date he has 5 consecutive one-year Breaks in Service. If Service
attributable to his prior period of employment is not cancelled pursuant
to the preceding sentence, it shall be reinstated upon his commencing or
recommencing participation.
(c) Maternity and Paternity Leave: Notwithstanding the foregoing, if
an Employee's termination of employment is due to a "maternity or
paternity leave", then paragraph (b) of this Section shall be read by
substituting the number "6" for the number "5" wherever it appears
therein. For the purposes of this Plan, "maternity or paternity leave"
means termination of employment or absence from work due to the
pregnancy of the Employee, the birth of a child of the Employee, the
placement of a child in connection with the adoption of the child by
an Employee, or the caring for an Employee's child during the period
immediately following the child's birth or placement for adoption.
The Administrator shall determine, under rules of uniform application
and based on information provided to the Committee by the Employee,
whether or not the Employee's termination of employment or absence
from work is due to "maternity or paternity leave".
3.03 Service as an Ineligible Employee. In the event an Employee who is not
a member of the eligible class of Employees becomes a member of the eligible
class, such Employee shall participate immediately if such Employee has
satisfied the service requirements and could have previously become a
Participant had he been in the eligible class. In the event a Participant
shall go from a classification of an Eligible Employee to an Ineligible
Employee, such Employee shall continue to vest in his interest in the Plan
for each Year of Service completed while an Ineligible Employee, until such
time as his Participant's Account shall be forfeited or distributed pursuant
to the terms of the Plan. Additionally, his interest in the Plan shall
continue to share in the earnings of the Trust Fund. If such Employee does
not incur a Break in Service, such Employee shall participate immediately upon
his return to an eligible class of Employees. If such Employee incurs a Break
in Service, his eligibility to participate shall be determined pursuant to
paragraphs (a) and (b) of Section 3.02 above. If an Employee who goes to an
ineligible classification is 100% vested in his Accounts and becomes a partici-
pant in a compatible defined contribution plan maintained by the Employer for
the ineligible classification of Employees, the Administrator may direct the
Trustee to transfer the Participant's Accounts to such defined contribution
plan. The Trustee is authorized to accept the transfer of accounts from a
plan maintained for an ineligible classification of Employees with respect to
an Employee who becomes a Participant in this plan upon becoming a member of
the eligible class of Employees.
3.04 Designation of Beneficiary. Designation of a Beneficiary or Bene-
ficiaries under the Plan shall be governed by the following rules:
(a) Designation Procedure: Subject to the provisions of subsection
(b), each Participant or former Participant from time to time may
designate any person or persons (who may be designated primarily,
contingently or successively and who may be an entity other than a
natural person) as his Beneficiary or Beneficiaries to whom his Plan
benefits are paid if he dies before receipt of all such benefits.
Each Beneficiary designation shall be in a form prescribed by the
Committee and will be effective only when filed with the Administrator
during the Participant's lifetime.
Each Beneficiary designation filed with the Administrator will cancel
all Beneficiary designations previously filed with the Administrator.
The revocation of a Beneficiary designation no matter how effected,
shall not require the consent of any designated Beneficiary except as
provided in subsection (b) below.
(b) Spousal Consent: No Beneficiary designation shall be effective
under the Plan unless:
(1) the Participant's spouse consents in writing to such
designation,
(2) a specific beneficiary including any class of beneficiaries or
contingent beneficiaries is designated which may not be changed without
spousal consent (or the spouse expressly permits designation by the
Participant without further consent),
(3) the spouse's consent acknowledges the effect of such designation
and
(4) the spouse's signature is witnessed by a plan representative or a
notary public.
A spouse's consent shall be valid under this Plan only with respect to
the specified Beneficiary or class of Beneficiaries designated by the
Participant. If the Beneficiary or Beneficiaries are subsequently
changed by the Participant, a new consent by the spouse will be
required. The spouse's consent to any Beneficiary designation made by
a Participant pursuant to this Plan, once made, may not be revoked by
the spouse.
Notwithstanding the foregoing, spousal consent to a Participant's
Beneficiary designation shall not be required if:
(i) the spouse is designated as the sole primary beneficiary by
the Participant, or
(ii) it is established to the satisfaction of the Administrator
that spousal consent cannot be obtained because there is no spouse,
because the spouse cannot be located or because of such other
circumstances as may be prescribed in regulations issued by the
Secretary of the Treasury.
Any consent by a spouse or any determination that the consent is not
required pursuant to paragraphs (i) or (ii) above, shall be effective
only with respect to such spouse.
(c) Lack of Designation: If any Participant or former Participant
fails to designate a Beneficiary in the manner provided above, or if
the Beneficiary designated by the deceased Participant dies before him
or before complete distribution of the Participant's benefits, such
Participant's benefits shall be paid in accordance with the following
order of priority:
(i) to the Participant's surviving spouse, or if there be none
surviving,
(ii) to the Participant's estate.
ARTICLE IV
CONTRIBUTIONS
4.01 Employer Contributions: For each Plan Year, the Employer shall contribute
to the 401(k) Fund:
(a) The amount of the total salary reduction elections of all
Participants made pursuant to Section 4.02(a), which amount shall be
deemed an Employer's Elective Contribution.
(b) A discretionary matching contribution equal to a percentage of each
Participant's Deferred Compensation, to be determined each year by the
Employer, which amount shall be deemed an Employer's Matching
Contribution. The Employer's Matching Contribution shall only be made
provided the maximum Employer's Non-Elective Profit Sharing Contri-
bution has been made for such Plan Year.
(c) A discretionary amount which amount shall be deemed an Employer's
Non-Elective Profit Sharing Contribution. The Employer's Non-Elective
Profit Sharing Contribution, if any, shall not exceed 1% of the total
Annual Compensation of the Participants entitled to receive an alloca-
tion pursuant to Section 5.02.
(d) The Employer's contributions for any Plan Year shall not exceed
the maximum amount which would be deductible to the Employer under the
provisions of Section 404 of the Code. All contributions by the
Employer shall be made in cash or in such property as is acceptable
to the Trustee. The Employer's Contribution shall be made without
regard to current or accumulated Net profits. Notwithstanding the
foregoing, the Plan shall be designated to qualify as a Profit Sharing
Plan for purposes of Sections 401(a), 402, 412, and 417 of the Code.
(e) Except, however, to the extent necessary to provide the top heavy
minimum allocations, the Employer shall make a contribution even if it
exceeds the amount which would be deductible under Section 404 of the
Code.
4.02 Participant's Salary Reduction Election.
(a) Each Participant may elect to defer 1% to 15% of his Compensation
which would have been received in the Plan Year, but for the deferral
election. A deferral election (or modification of an earlier election)
may not be made with respect to Compensation which is currently
available on or before the date the Participant executed such election
or, if later, the latest of the date the Employer adopts this cash or
deferred arrangement, or the date such arrangement first became
effective.
The amount by which Compensation is reduced shall be that Participant's
Deferred Compensation and be treated as an Employer Elective Contribu-
tion and allocated to that Participant's Employee Elective Account.
(b) The balance in each Participant's Employee Elective Account shall
be fully vested at all times and shall not be subject to forfeiture for
any reason.
(c) Amounts held in a Participant's Employee Elective Account may not
be distributed prior to the earlier of:
(1) his termination of employment, total and permanent disability,
or death;
(2) his attainment of age 59 1/2;
(3) termination of the Plan without establishment of a successor
plan by the Employer or an Affiliated Employer;
(4) the date of the sale by the Employer to an entity that is not
an Affiliated Employer of substantially all of the assets (within
the meaning of Code Section 409(d)(2)) with respect to a
Participant who continues employment with the corporation acquiring
such assets;
(5) the date of the sale by the Employer or an Affiliated Employer
of its interest in a subsidiary (within the meaning of Code Section
409(d)(3)) to an entity which is not an Affiliated Employer with
respect to a Participant who continues employment with such
subsidiary; or
(d) A Participant's Deferred Compensation made pursuant to this Section
4.02 of this Plan, or any other qualified plan maintained by the
Employer, for any taxable year, shall not exceed $7,979.00 as indexed
under Section 4.02(g) of the Code.
(e) In the event a Participant has received a hardship distribution
from his Employee Elective Account pursuant to Section 4.02(g), then
such Participant shall not be permitted to elect to have Deferred
Compensation contributed to the Plan on his behalf until the fifth
entry date following the receipt of the distribution. Furthermore, the
dollar limitation under Code Section 4.02(g) shall be reduced, with
respect to the Participant's taxable year following the taxable year in
which the hardship distribution was made, by the amount of such
Participant's Deferred Compensation, if any, pursuant to this Plan
(and any other plan maintained by the Employer) for the taxable year
of the hardship distribution.
(f) A Participant may assign to this Plan any Excess Elective Deferrals
during a taxable year of the Participant by notifying the Administrator
on or before March 15 of the year following the year in which the
deferrals were made. Notwithstanding any other provision of the Plan,
Excess Elective Deferrals, plus any income and minus any loss allocable
thereto, shall be distributed no later than April 15 of the year follow-
ing the year in which the deferrals were made to any Participant to
whose Account Excess Elective Deferrals were assigned for the preceding
year and who claims Excess Elective Deferrals for such taxable year.
Excess Elective Deferrals shall be adjusted for any income or loss up
to the date of distribution. The income or loss allocable to the
Participant's Excess Elective Deferrals is the sum of: (1) income or
loss allocable to the Participant's Employee Elective Account for the
taxable year multiplied by a fraction, the numerator of which is such
Participant's Excess Elective Deferrals for the year and the denomina-
tor is the Participant's account balance attributable to Elective
Deferrals without regard to any income or loss occurring during such
taxable year; and (2) ten percent of the amount determined under (1)
multiplied by the number of whole calendar months between the end of
the Participant's taxable year and the date of distribution, counting
the month of distribution if distribution occurs after the 15th of such
month.
(g) At the request of a Participant, the Committee shall direct the
Trustee to distribute to any Participant or his Beneficiary in any one
Plan Year up to 100% of his Elective Deferrals, valued as of the last
Valuation Date, in the case of an immediate and heavy financial need of
the Participant. Withdrawal under this Section shall only be authorized
on account of medical expenses described in Section 213(d) of the Code
incurred by the Employee, the Employee's spouse, or any dependents of
the Employee; purchase of a principal residence for the Employee;
payment of tuition for the next semester of post-secondary education
for the Employee, his spouse, children or dependents; or to prevent
the eviction of the Employee from his principal residence or foreclosure
on the mortgage on the Employee's principal residence. Any distribution
made pursuant to this section shall require notice to and the consent of
the Participant's spouse as described in Section 6.10. Distributions
pursuant to this provision must meet the following requirements:
(1) The distribution may not exceed the amount of the immediate
and heavy financial need of the Participant.
(2) The Participant must have obtained all distributions, other
than hardship distributions, and all nontaxable loans currently
available under all plans maintained by the Employer.
(3) The Participant's elective contributions under this Plan must
be suspended until the fifth entry date after receipt of the
distribution.
(4) Distribution paid pursuant to this Section shall be deemed
to be made as of the next preceding Valuation Date and the Parti-
cipant's Employee Elective Account shall be reduced accordingly.
(h) The Employer and the Administrator shall adopt a procedure to
implement the cash or deferred elections provided for herein. Such
procedure shall provide for the following:
(1) A Participant may commence making Elective Deferrals to the
Plan at any time following the satisfaction of the eligibility
requirements provided for in Section 4.02(a). The Participant
shall make such an election by entering into a written salary
reduction agreement with the Employer and filing such Election
with the Administrator. Such election shall initially be effec-
tive beginning with the pay period following the acceptance of
the salary reduction agreement by the Administrator, shall not
have retroactive effect and shall remain in force until revoked;
provided, however, termination of the Participant's employment,
or his ceasing to be a Participant for any reason, shall be deemed
to revoke any salary reduction agreement then in effect.
(2) A Participant may modify or revoke a prior election and con-
currently make a new election by filing a written notice with the
Administrator at least thirty (30) days (or upon such shorter notice
period as may be acceptable to the Administrator) prior to the end of
the Plan Year and at such other times as may be established at the
discretion of the Administrator.
4.03 Time of Payment of Employer Contribution.
The Employer shall pay to the Trustee its contribution to the Plan for
each Plan Year within the time prescribed by law, including extensions
of time, for the filing of the Employer's federal income tax return for
the fiscal year.
However, Employer Elective Contributions accumulated through payroll
deductions shall be paid to the Trustee as of the earliest date on
which such contributions are known and can reasonably be segregated
from the Employer's general assets, but in any event within 90 days
from the date on which such amounts would otherwise be payable to the
Participant in cash. The provisions of Department of Labor Regulations
2510.3-102 are incorporated herein by reference. Furthermore, any
additional Employer contributions which are allocable to the Partici-
pant's Employee Elective Account for a Plan Year shall be paid to the
Plan no later than the twelve-month period immediately following the
close of such Plan Year.
4.04 Erroneous Employer Contributions. All Contributions by the Employer are
conditioned upon the initial qualification of the Plan under the Code, and upon
their deductibility under Sections 404 of the Code. Upon the request of the
Employer, any contribution made (a) by reason of a mistake of fact or (b)
conditioned upon initial qualification of the Plan, shall be returned to the
Employer within one (1) year of the mistaken payment of the contribution, the
date of denial of qualification, or disallowance of the deduction, as the case
may be.
4.05 Rollover Amount From Other Plans. An Employee eligible to participate
in the Plan, regardless of whether he has satisfied the participation require-
ments of Section 4.02(a), may transfer to the Trust Fund a "Qualifying Rollover
Distribution", as defined in Section 402(a)(5)(E) Code as "1 or more distribu-
tions (1) within one taxable year of the employee on account of a termination
of the plan of which the trust is a part or, in the case of a profit-sharing
or stock bonus plan, a complete discontinuance of contributions under such
plan, or (2) which constitutes a lump sum distribution within the meaning of
subsection (e)(4)(A) (determined without reference to subparagraphs (B) and
(H) of subsection (e)(4)" which, in part, defines lump sum distribution as
"the distribution or payment within one taxable year of the recipient of the
balance to the credit of an employee which becomes payable to the recipient
(i) on account of the employee's death, (ii) after the employee attains age
59 1/2, (iii) on account of the employee's separation from service, or (iv)
after the employee has become disabled", provided that such distribution is
from a plan which meets the requirements of Section 401(a) of the Internal
Revenue Code (hereinafter the "Other Plan"). The procedures approved by the
Committee shall provide that such a transfer may be made only if the following
conditions are met:
(a) the transfer occurs on or before the 60th day following the
Employee's receipt of the distribution from the Other Plan;
(b) the amount transferred is equal to any portion of the distribution
the Employee received from the Other Plan, subject to the maximum
rollover provision of Section 402(a)(5)(B) of the Code, limiting such
amount to the fair market value of all property received in such a
distribution reduced by employee contributions, as defined in Section
402(a)(5)(E) of the Code.
The Administrator shall develop such procedures, and may require such
information from an Employee desiring to make such a transfer, as it
deems necessary or desirable to determine that the proposed transfer
will meet the requirements of this Section. Upon approval by the
Committee, the amount transferred shall be deposited in the 401(k)
Trust Fund and shall be credited to the Employee's Rollover Account.
Such Account shall be 100 percent vested in the Employee and shall
share in income allocations in accordance with Section 5.05. Upon
termination of employment, the total amount of the Employee's Rollover
Contribution Account shall be distributed in accordance with Section
6.07. Upon such a transfer by an Employee who is otherwise eligible
to participate in the Plan but who has not yet completed the partici-
pation requirements, his Rollover Account shall represent his sole
interest in the Plan until he becomes a Participant.
ARTICLE V
ALLOCATION OF CONTRIBUTIONS
5.01 Separate Accounts. The Administrator shall keep appropriate books and
records showing the respective interest of all Participants hereunder, and the
Administrator shall maintain within the 401(k) fund a separate Employer
Non-Elective Profit Sharing contribution Account, Employer Matching Contribu-
tion Account, and an Employee Elective Account for each Participant. A separate
account shall also be maintained within the 401(k) Fund for any Rollover
Account established for an Employee pursuant to Section 4.05. A separate Profit
Sharing Account and Profit Sharing Voluntary Account shall also be maintained
within the Profit Sharing Fund.
5.02 Allocation of Discretionary Contributions. Any discretionary Employer's
Non-Elective Profit Sharing Contribution for the Plan Year and any Forfeitures
allocable pursuant to Section 6.06 shall be credited as of the last day of the
Plan Year to the Employer Non-Elective Profit Sharing Contribution Account of
the Participants who completed a Year of Service during the Plan Year and were
in the employ of the Employer on the last day of the Plan Year, or who
terminated their employment for reasons of death, disability or retirement
during the Plan Year. The amounts allocated to such Accounts will be in pro-
portion to the amounts of Annual Compensation earned during such Year by the
respective Participants and such allocation will be made as of the last day of
the Plan Year.
5.03 Allocation of Elective Contributions. The Employer's Elective Contribution
shall be allocated to each Participant's Employee Elective Contribution Account
in an amount equal to such Participant's Deferred Compensation for the Year.
5.04 Allocation of Matching Contributions. Employer Matching Contributions,
if any, shall be allocated as of the last day of the Plan Year to the Employer
Matching Contribution Accounts of the Participants entitled to receive such
contribution and who are in the employ of the Employer on the last day of the
Plan Year.
Forfeitures attributable to matching contributions shall be allocated to those
Participants entitled to receive an Employer Matching Contribution for the year
in proportion to the amounts of Annual Compensation earned during each year by
such participants.
5.05 Annual Adjustment. The Administrator shall adjust the Participants'
401(k) Fund Accounts as of each Valuation Date as follows:
(a) First, charge to each Account, other than the Profit Sharing
Account, of each Participant all distributions made from such Account
since the last preceding Valuation Date;
(b) Second, adjust the balances of each Account, other than the Profit
Sharing Account, to reflect the net fair market value of the 401(k)
Fund;
(c) Third, allocate and credit the Employer Contributions and
Forfeitures, if any, which are to be credited as of such Valuation
Date accordance with Sections 5.02, 5.03, and 5.04.
(d) The Administrator shall adjust Participants' Profit Sharing Fund
Accounts in accordance with Article VII.
5.06 Relevant Dates. Credits or deductions under Sections 5.02, 5.03, 5.04
and 5.05 shall be deemed to have been made on the date to which they are
related although actually determined on some later date.
Distributions to a Participant or his Beneficiary shall be based on the fair
market value of the Participant's Accounts as of the Valuation Date (as
provided in Section 12.08) coinciding with or next following the date of
termination of employment or other relevant date rather than on such date.
5.07 Directed Investment Account.
(a) The Administrative Committee with the approval of the Company may
determine that the Participants be permitted to direct the investment
of any or all of their Accounts maintained in the 401(k) Fund in any
one or more investment options.
(b) If such permission is given, the Administrative Committee shall
direct the Trustee to establish one or more investment funds and
establish a procedure for the Participants to direct the investment of
their 401(k) Accounts among such funds,
5.08 Maximum Additions. Notwithstanding anything contained herein to the
contrary, the total Additions to both the Employer and Employee Contribution
Accounts of a Participant for any Plan Year shall not exceed the lesser of
$30,000.00 or twenty-five percent (25%) of the Participant's Annual Compensa-
tion for such Plan Year, except that such $30,000.00 shall be increased as
permitted by Internal Revenue Service Regulations to reflect cost-of-living
adjustments. If such Additions exceed the limitations, any Employee Contri-
butions made by the Participant for the Plan Year which cause the excess shall
be returned to the Participant. If, after returning such contributions to the
Participant, an excess still exists, such excess shall be used to reduce
Employer Contributions for such Participant in the next succeeding Limitation
Years. If the Participant is not covered by the Plan at the end of the
Limitation Year, such excess will be used to reduce Employer Contributions for
all remaining Participants in the next and succeeding Limitation Years.
Notwithstanding the foregoing, the otherwise permissible annual
Additions for any Participant under this Plan may be further reduced
to the extent necessary as determined by the Administrator, to prevent
disqualification of the Plan under Section 415 of the Internal Revenue
Code, which imposes the following additional limitations on the bene-
fits payable to Participants who also may be participating in another
qualified pension, profit sharing, savings, stock bonus plan, or welfare
benefit fund as defined in Section 419(e) of the Code maintained by the
Employer or any of the members of the controlled group of corporations
of which the Employer is a part.
If an individual is a Participant at any time in both a defined benefit
plan and a defined contribution plan maintained by the Employer, the
sum of the defined benefit plan fraction and the defined contribution
plan fraction for any Plan Year may not exceed 1.0. The defined benefit
plan fraction for any Plan Year is a fraction, the numerator of which
is the Participant's projected annual benefit under the Plan (determined
at the close of the Plan Year) and the denominator of which is the
lesser of (1) 1.25 multiplied by $90,000 or such greater amount
permitted by Internal Revenue Service regulations to reflect cost-of-
living adjustments or (2) 1.4 multiplied by 100% of the Participant's
average Annual Compensation, during the three consecutive years when
his Annual Compensation was highest. The defined contribution plan
fraction for any Plan Year is a fraction, the numerator of which is the
sum of the annual Additions to the Participant's Accounts in such Plan
Year and for all prior years and the denominator of which is the sum of
the applicable maximum amounts of annual Additions which would have
been made under Section 415(c) of the Code for such Plan Year and for
all prior years of such Participant's employment (assuming for this
purpose, that said Section 415(c) had been in effect during such prior
years). The applicable maximum amount for any Plan Year shall be equal
to the lesser of 1.25 multiplied by the dollar limitation in effect for
such Plan Year under Subsection 415(c)(1)(A) of the Internal Revenue
Code or 1.4 multiplied by 25% of the Participant's Compensation for
such Plan Year. For purposes of this limitation, all defined benefit
plans of the Employer, whether or not terminated, are to be treated as
one defined benefit plan and all defined contribution Plans of the
Employer, whether or not terminated, are to be treated as one defined
contribution plan. The extent to which annual Additions under the Plan
shall be reduced as compared with the extent to which the annual benefit
under any defined benefit plan shall be reduced in order to achieve
compliance with the limitations of Section 415 of the Code shall be
determined by the Committee in such a manner so as to maximize the
aggregate benefits payable to such Participant. If such reduction is
under this Plan, the Committee shall advise affected Participants of
any additional limitation on their annual benefits required by this
Section of the Plan.
The above limitations are intended to comply with the provisions of
Section 415 of the Internal Revenue Code so that the maximum benefits
provided by plans of the Employer shall be exactly equal to the maximum
amounts allowed under Section 415 of the Internal Revenue Code and
regulations thereunder. If there is any discrepancy between the pro-
visions of this Section 5.08 and the provisions of Section 415 of the
Internal Revenue Code and regulations thereunder, such discrepancy
shall be resolved in such a way as to give full effect to the provi-
sions of Section 415 of the Code.
5.09 Actual Deferral Percentage Test. For each Plan Year:
(a) The Actual Deferral Percentage (hereinafter "ADP") for Partici-
pants who are Highly Compensated Employees for each Plan Year and the
ADP for Participants who are not Highly Compensated Employees for the
same Plan Year must satisfy one of the following tests:
1) The ADP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ADP for Participants who
are not Highly Compensated Employees for the same Plan Year
multiplied by 1.25; or
2) The ADP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ADP for Participants who
are not Highly Compensated Employees for the same Plan Year multi-
plied by 2.0; provided that the ADP for Participants who are
Highly Compensated Employees does not exceed the ADP for Partici-
pants who are not Highly Compensated Employees by more than two
(2) percentage points.
(b) The ADP for any Participant who is a Highly Compensated Employee
for the Plan Year and who is eligible to have Elective Deferrals, or
Qualified Non-Elective Contributions allocated to his Accounts under
two (2) or more cash or deferred arrangements described in Section
401(k) of the Code, that are maintained by the Employer, shall be
determined as if such contributions were made under a single cash or
deferred arrangement. If a Highly Compensated Employee participates
in two (2) or more cash or deferred arrangements that have different
plan years, all cash or deferred arrangements ending with or within
the same calendar year shall be treated as a single arrangement.
(c) In the event that this Plan satisfied the requirements of Sections
401(k), 401(a)(4) or 410(b) of the Code only when aggregated with one
or more other plans, or if one or more other plans satisfy the require-
ments of such sections of the Code only if aggregated with this Plan,
then this Section shall be applied by determining the ADP of Partici-
pants as if all such plans were a single plan. For Plan Years beginning
after December 31, 1989, plans may be aggregated in order to satisfy
Section 401(k) of the Code only if they have the same plan year.
(d) For purposes of determining the ADP of a Participant who is a 5-percent
owner or one of the ten most highly-paid Highly Compensated Employees,
Elective Deferrals, Qualified Non-Elective Contributions, and Compensation of
such Participant shall include such Contributions and Compensation for the
Plan Year of Family Members. Family Members, with respect to such Highly
Compensated Employees, shall be disregarded as separate employees in deter-
mining the ADP both for Participants who are not Highly Compensated Employees
and for Participants who are Highly Compensated Employees.
(e) For purposes of determining the ADP test, Elective Deferrals and
Qualified Non-Elective contributions must be made before the last day
of the twelve-month period immediately following the Plan Year to
which contributions relate.
(f) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ADP test and the amount of Qualified Non-Elective
Contributions used in such test.
(g) The determination and treatment of the ADP amounts of any Partici-
pant shall satisfy such other requirements as may be prescribed by the
Secretary of the Treasury.
5.10 Adjustment To Actual Deferral Percentage Test.
In the event the initial allocations to the Participants' Employee Elective
Accounts do not satisfy one of the tests set forth in Section 5.09, the
Administrator shall either:
(a) Distribute such Excess Contributions plus any income and minus
any loss allocable thereto by the last day of the Plan Year to the
Participants to whose Accounts such Excess Contributions were allocated
for the preceding Plan Year. If such excess amounts are distributed
more than 2 1/2 months after the last day of the Plan Year in which
such excess amounts arose, a ten (10) percent excise tax will be
imposed on the Employer with respect to such amounts. Such distribu-
tions shall be made to Highly Compensated Employees on the basis of
the respective portions of Excess Contributions attributable to each
of such Employees. Excess Contributions shall be allocated to
Participants who are subject to the family member aggregation rules of
Section 414(q)(6) of the Code in the manner prescribed by the regula-
tions. Excess Contributions shall be treated as Additions under the
Plan.
1) Determination of Income or Loss: Excess Contributions shall
be adjusted for any income or loss up to the date of distribution.
The income or loss allocable to Excess Contributions is the sum of:
(i) income or loss allocable to a Participant's Employee Elective
Account for the Plan Year multiplied by a fraction, the numerator
of which is such Participant's Excess Contributions for the year
and the denominator is the Participant's Employee Elective account
balance without regard to any income or loss occurring during such
Plan Year; and (ii) ten percent of the amount determined under (i)
multiplied by the number of whole calendar months between the end
of the Plan Year and the date of distribution, counting the month
of distribution if distribution occurs after the 15th of such
month.
2) Accounting for Excess Contribution: Excess Contributions and
allocable income or loss shall be distributed first from the
Participant's Elective Deferrals which were not the subject of
Employer Matching Contributions, then from the Participant's
Elective Deferrals including related Employer Matching Amounts to
the extent used in the ADP test for the Plan Year, and then from
any Qualified Non-Elective contribution used in the ADP test for
the Plan Year.
(b) Within twelve (12) months after the end of the Plan Year, the
Employer shall make a special Qualified Non-Elective Contribution on
behalf of Non-Highly Compensated Employees in an amount sufficient to
satisfy one of the tests set forth in Section 5.09. Such contribution
shall be allocated to the Participant's Employee Elective Account of
each Non-Highly Compensated Employee in the same proportion that each
Non-Highly Compensated Employee's Compensation for the year bears to
the total Compensation of all Non-Highly Compensated Employees.
5.11 Actual Contribution Percentage Tests. For each Plan Year:
(a) The Actual Contributions Percentage (hereinafter "ACP") for
Participants who are Highly Compensated Employees for each Plan Year
and the ACP for Participants who are not Highly Compensated Employees
for the same Plan Year must satisfy one of the following tests:
1) the ACP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ACP for Participants who
are not Highly Compensated Employees for the same Plan Year
multiplied by 1.25; or
2) the ACP for Participants who are Highly Compensated Employees
for the Plan Year shall not exceed the ACP for Participants who
are not Highly Compensated Employees for the same Plan Year multi-
plied by two (2), provided that the ACP for Participants who are
Highly Compensated Employees does not exceed the ACP for Partici-
pants who are not Highly Compensated Employees by more than two
(2) percentage points.
(b) Multiple use: If one or more Highly Compensated Employees parti-
cipate in both a cash or deferred arrangement and a plan subject to
the ACP test maintained by the Employer and the sum of the ADP and ACP
of those Highly Compensated Employees subject to either or both tests
exceeds the Aggregate Limit, then the ACP or the ADP of those Highly
Compensated Employees who also participate in a cash or deferred
arrangement will be reduced (beginning with such Highly Compensated
Employee whose ACP is the highest) so the limit is not exceeded. The
amount by which each Highly Compensated Employee's Contribution
Percentage Amounts or Employer Elective Contributions are reduced shall
be treated as an Excess Aggregate Contribution or an Excess Contri-
bution. The ADP and ACP of the Highly Compensated Employees are
determined after any corrections required to meet the ADP and ACP
tests. Multiple use does not occur if both the ADP and ACP of the
Highly Compensated Employees does not exceed 1.25 multiplied by the
ADP and ACP of the employees who are not Highly Compensated Employees.
(c) The ACP for any participant who is a Highly Compensated Employee
for the Plan Year and who is eligible to have Contribution Percentage
Amounts allocated to his or her account under two (2) or more plans
described in Section 401(a) of the Code, or arrangements described in
Section 401(k) of the Code that are maintained by the Employer, shall
be determined as if the total of such Contribution Percentage Amounts
was made under each plan. If a Highly Compensated Employee partici-
pates
in two or more cash or deferred arrangements that have different Plan
Years, all cash or deferred plans ending with or within the same
calendar year shall be treated as a single arrangement.
(d) In the event that this plan satisfies the requirements of Sections
401(m), 401(a)(4), or 410(b) of the Code only if aggregated with one or
more other plans, or if one or more other plans satisfy the require-
ments of such sections of the Code only if aggregated with this plan,
then this section shall be applied by determining the ACP of Partici-
pants as if all such plans were a single plan. For Plan Years
beginning after December 31, 1989, plans may be aggregated in order to
satisfy Section 401(m) of the Code only if they have the same Plan Year.
(e) For purposes of determining the ACP of a Participant who is a five
percent owner or one of the ten most highly paid Highly Compensated
Employees, the Contribution Percentage Amounts and Compensation of such
Participant shall include the Contribution Percentage Amounts and Compen-
sation for the Plan Year of Family Members.
Family Members, with respect to Highly Compensated Employees, shall be dis-
regarded as separate Employees in determining the ACP both for Participants
who are not Highly Compensated Employees and for Participants who are Highly
Compensated Employees.
(f) Employer Matching Contributions and Qualified Non-Elective
Contributions must be made before the last day of the twelve month
period immediately following the Plan Year to which contributions
relate.
(g) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ACP test and the amount of Qualified Non-Elective
Contributions or Elective Deferrals used in such test.
(h) The determination and treatment of the ACP of any Participant
shall satisfy such other requirements as may be prescribed by the
Secretary of the Treasury.
5.12 Adjustment to Actual Contributions Percentage Test.
In the event, the initial allocations to the Participants do not satisfy one
of the tests set forth in Section 5.11, the Administrator shall either:
(a) Forfeit, if forfeitable, or if not forfeitable distribute,
together with any income and minus any loss allocable thereto, the
Excess Aggregate Contributions. Distributions hereunder shall be made
no later than the last day of each Plan Year to Participants to whose
accounts such Excess Aggregate Contribution were allocated for the
preceding Plan Year. Excess Aggregate Contributions shall be allocated
to Participants who are subject to the family member aggregation rules
of Section 414(g)(6) of the Code in the manner prescribed by regulation.
If such Excess Aggregate Contributions are distributed more than 2 1/2
months after the last day of the Plan Year in which such excess amounts
arose, a ten (10) percent excise tax will be imposed on the Employer
with respect to those amounts. Excess Aggregate Contributions shall
be treated as Additions under the Plan. Excess Aggregate Contributions
shall be adjusted for any income or loss up to the date of distribution.
The income or loss allocable to Excess Aggregate Contributions is the
sum of (1) income or loss allocable to the Participant's Employer
Matching Contribution Account (if all amounts therein are not used in
the ADP test) and, if applicable, Qualified Non-Elective Contribution
Account and Employee Elective Account of the Plan Year multiplied by a
fraction, the numerator of which is such Participant's Excess Aggregate
Contributions for the year and the denominator is the Participant's
account balance(s) attributable to Contribution Percentage Amounts
without regard to any income or loss occurring during such Plan Year;
and (2) ten (10) percent of the amount determined under (1) multiplied
by the number of whole calendar months between the end of the Plan Year
and the date of distribution, counting the month of distribution if
distribution occurs after the 15th of such month. Excess Aggregate
Contribution and allocable income or loss shall be forfeited, if for-
feitable, and/or distributed in the following order of priority;
Employer Matching Contributions, Qualified Non-Elective Contributions,
Elective Deferrals. Anything herein to the contrary notwithstanding,
any forfeiture of Excess Aggregate Contributions will be used to reduce
Employer Contributions to the Plan for subsequent Plan Years.
(b) Within twelve (12) months after the end of the Plan Year, the
Employer may make a special Qualified Non-Elective Contribution on
behalf of Non-Highly Compensated Participants in an amount sufficient
to satisfy one of the tests set forth in Section 5.11. Such contribu-
tion shall be allocated to the Participant's Employee Elective Account
of each Non-Highly Compensated Participant in the same proportion that
each Non-Highly Compensated Participant's Compensation for the year
bears to the total Compensation of all Non-Highly Compensated Partici-
pants. Separate records shall be maintained for the purpose of
excluding such contributions from the "Actual Deferral Percentage"
tests of Section 5.09.
ARTICLE VI
PAYMENT OF BENEFITS
6.01 Normal Retirement. A Participant's Account balances shall be fully vested
and nonforfeitable upon the attainment of the Normal Retirement Age of 62.
Such Participant shall be entitled to benefits based upon the entire amount
credited to his Accounts.
6.02 Early Retirement. A Participant's Account balances shall be fully vested
and nonforfeitable upon fulfilling the requirements for Early Retirement by
attaining age 55 and having completed 10 Years of Service. Such Participant
shall be entitled to retire on his Early Retirement Date and receive benefits
based upon the entire amount credited to his Accounts. A Participant who
separates from service after having 10 years of service and prior to having
attained age 55, shall upon attaining age 55 be entitled to commence receiv-
ing his vested benefits under the Plan.
6.03 Disability. Any Participant who separates from service because of
total and permanent Disability shall be entitled to receive benefits based on
the entire amount credited to his Accounts.
6.04 Death Benefits. Upon the death of a Participant, the total amounts
credited to his Accounts shall be payable to his Beneficiary.
6.05 Other Termination of Employment. If a Participant's employment is
terminated prior to his Normal Retirement Date for reasons other than death,
disability or early retirement, he shall be entitled to the value in his
Accounts as follows:
(a) He shall be entitled to the entire balance in his Employee Elective
Account, any Rollover Account maintained for him, and his Profit Sharing
Voluntary Account.
(b) He shall be entitled to an amount equal to his vested percent of his
Employer Contribution Account and his Profit Sharing Account. Such vested
percentage shall be determined in accordance with the following schedule
based upon his Years of Vesting Service. For purposes of computing an
Employee's vested percentage, Years of Service and Breaks in Service will
be measured by the Plan Year.
VESTING SCHEDULE
Number of Years of Applicable
Vesting Service Percentage
less than 3 0%
3 but less than 4 10%
4 but less than 5 20%
5 or more 100%
The values of such Accounts maintained in the 401(k) Fund shall be
determined as of the Valuation Date coinciding with or next following
the date of termination of employment or other relevant date.
The portion of the terminated Participant's Employer Contribution
Account which does not vest in him shall be forfeited at such time and
in such manner as provided in Sections 6.06 and 5.05. The portion of
a terminated Participant's Profit Sharing Account which does not vest
in him shall be forfeited at such time and in such manner as provided
in Sections 6.06 and 7.05.
6.06 Forfeitures. Any balance in the Employer Non-Elective Profit Sharing
Contribution Account, or Employer Matching Account, of a Participant who has
separated from service to which he is not entitled under the foregoing provi-
sions shall be held in his Account maintained in the 401(k) Fund, administered
by the Trustee, and treated as though it were a Participant's Account main-
tained in the 401(k) Fund, and shall subsequently, be reallocated at such time
as the amount becomes a Forfeiture. Forfeitures attributable to Employer
Non-Elective Profit Sharing Contributions will be reallocated as provided in
Section 5.02. Forfeitures attributable to Employer Matching Contribution will
be reallocated in accordance with Section 5.04. Forfeitures attributable to
Employer Contributions to the Profit Sharing Fund shall be reallocated in
accordance with Sections 7.04(b) and 7.05 of the Plan,
If a Participant who has terminated shall be re-employed by the
Employer before five (5) consecutive 1-Year Break in Service, his
forfeited account shall be reinstated unadjusted for any gains or
losses occurring subsequent to the valuation date occurring nearest
to his date of termination. However, if such Participant had received
a distribution (other than a deemed distribution pursuant to Section
6.11) of his entire vested interest, his forfeited account shall be
reinstated only if he repays the full amount distributed to him before
the earlier of five (5) years after the first date on which the Partici-
pant is subsequently re-employed by the Employer or the close of the
first period of 5 consecutive 1-Year Breaks in Service commencing after
the distribution. In the event such Participant does repay the full
amount distributed to him, the undistributed portion of the Partici-
pant's Account shall be restored in full, unadjusted by any gains or
losses occurring subsequent to the valuation date occurring nearest to
the date he received the distribution.
Notwithstanding the foregoing, if a Participant's termination of
Employment is due to a maternity or paternity leave as defined in
Section 3.04, then this Section 6.06 shall be read by substituting the
number 6 for the number 5 wherever it appears.
6.07 Distribution Methods. Distributions of a Participant's Accounts may be
made in one or more of the following methods at the direction of the Participant
or the Beneficiary:
(a) By payment in one lump sum.
(b) By payment in substantially equal installments, if the Participant
has met the requirements for Early Retirement.
6.08 Distribution Requirements. The requirements of this article shall apply
to any distribution of a Participant's interest and will take precedence over
any inconsistent provisions of this Plan. Unless otherwise specified, the
provisions of this article apply to calendar years beginning after December
31, 1984. All distributions required under this article shall be determined
and made in accordance with the proposed regulations under Section 401(a)(9)
of the Code, including the minimum distribution incidental benefit requirement
of Section 1.401(a)(9)-1 of the proposed regulations.
(a) The entire interest of a Participant must be distributed or
begin to be distributed no later than the Participant's required
beginning date.
(b) As of the first distribution calendar year, distributions, if
not made in a single-sum, may only be made over one of the following
periods (or a combination thereof):
(1) a period certain not extending beyond the life expectancy of
the Participant, or
(2) a period certain not extending beyond the joint and last
survivor expectancy of the Participant and a designated
Beneficiary.
(c) If the Participant's interest is to be distributed in other than
a single sum, the following minimum distribution rules shall apply on
or after the required beginning date:
(1) If a Participant's benefit is to be distributed over (i) a
period certain not extending beyond the life expectancy of the
Participant or the joint life and last survivor expectancy of the
Participant and the Participant's designated beneficiary or (ii)
a period certain not extending beyond the life expectancy of the
designated Beneficiary, the amount required to be distributed for
each calendar year, beginning with distributions for the first
distribution calendar year, must at least equal the quotient
obtained by dividing the Participant's benefit by the applicable
life expectancy.
(2) For calendar years beginning before January 1, 1989, if the
Participant's spouse is not the designated beneficiary, the method
of distribution selected must assure that at least 50% of the
present value of the amount available for distribution is paid
within the life expectancy of the Participant.
(3) For calendar years beginning after December 31, 1988, the
amount to be distributed each year, beginning with distributions
for the first distribution calendar year shall not be less than
the quotient obtained by dividing the Participant's benefit by
the lesser of (i) the applicable life expectancy or (ii) if the
Participant's spouse is not the designated Beneficiary, the
applicable divisor determined from the table set forth in Q&A-4
of Section 1.401(a)(9)-2 of the proposed regulations. Distribu-
tions after the death of the Participant shall be distributed
using the applicable life expectancy in section 6.8(c)(1) above
as the relevant divisor without regard to Proposed Regulations
Section 1.401(a)(9)-2.
(4) The minimum distribution required for the Participant's first
distribution calendar year must be made on or before the
Participant's required beginning date. The minimum distribution
for other calendar years, including the minimum distribution for
the distribution calendar year in which the Employee's required
beginning date occurs, must be made on or before December 31 of
that distribution calendar year.
(d) Death Distribution Provisions.
(1) If the Participant dies after distribution of his or her
interest has begun, the remaining portion of such interest will
continue to be distributed at least as rapidly as under the method
of distribution being used prior to the Participant's death.
(2) If the Participant dies before distribution of his or her
interest begins, distribution of the Participant's entire interest
shall be completed by December 31 of the calendar year containing
the fifth anniversary of the Participant's death except to the
extent that an election is made to receive distributions in
accordance with (i) or (ii) below:
(i) if any portion of the Participant's interest is payable
to a designated Beneficiary, distributions may be made over a period certain
not greater than the life expectancy of the designated Beneficiary commencing
on or before December 31 of the calendar year immediately following the calendar
year in which the Participant died;
(ii) if the designated Beneficiary is the Participant's
surviving spouse, the date distributions are required to
begin in accordance with (i) above shall not be earlier than
the later of (1) December 31 of the calendar year immediately
following the calendar year in which the Participant died and
(2) December 31 of the calendar year in which the Participant
would have attained
age 70 1/2.
If the Participant has not made an election by the time of his or her
death, the Participant's designated Beneficiary must elect the method
of distribution no later than the earlier of (1) December 31 of the
calendar year in which distributions would be required to begin under
this section, or (2) December 31 of the calendar year which contains
the fifth anniversary of the date of death of the Participant. If the
Participant has no designated Beneficiary, or if the designated
Beneficiary does not elect a method of distribution, distribution of
the Participant's entire interest must be completed by December 31 of
the calendar year containing the fifth anniversary of the Participant's
death.
(3) For purposes of (2) above, if the surviving spouse dies after
the Participant, but before payments to such spouse begin, the
provisions of (2) with the exception of paragraph (ii) therein,
shall be applied as if the surviving spouse were the Participant.
(4) For purposes of this Section 6.08(d), any amount paid to a
child of the Participant will be treated as if it had been paid
to the surviving spouse if the amount becomes payable to the
surviving spouse when the child reaches the age of majority.
(5) For the purposes of this Section 6.08(d), distribution of a
Participant's interest is considered to begin on the Participant's
required beginning date (or, if Section 6.08(d)(3) above is
applicable, the date distribution is required to begin to the
surviving spouse pursuant to Section 6.08(d)(2) above).
(e) Definitions
(1) Applicable life expectancy. The life expectancy (or joint
and last survivor expectancy) calculated using the attained age
of the Participant (or designated Beneficiary) as of the Partici-
pant's (or designated Beneficiary's) birthday in the applicable
calendar year reduced by one for each calendar year which has
elapsed since the date life expectancy was first calculated, If
life expectancy is being recalculated, the applicable life
expectancy shall be the life expectancy as so recalculated.
The applicable calendar year shall be the first distribution
calendar year and if life expectancy is being recalculated such
succeeding calendar year.
(2) Designated beneficiary. The individual who is designated as
the Beneficiary under the Plan in accordance with Section 3.04
subject to Section 401(a)(9) of the Code and the proposed regula-
tions thereunder.
(3) Distribution calendar year. A calendar year for which a
minimum distribution is required. For distributions beginning
before the Participant's death, the first distribution calendar
year is the calendar year immediately preceding the calendar year
which contains the Participant's required beginning date, For
distributions beginning after the Participant's death, the first
distribution calendar year is the calendar year in which distri-
butions are required to begin pursuant to (e) above.
(4) Life expectancy. Life expectancy and joint and last survivor
expectancy are computed by use of the expected return multiples
in Tables V and VI of Section 1.72-9 of the income tax regulations,
Unless otherwise elected by the Participant (or spouse, in the case of
distributions described in Section 6.08(d)(2)(ii) above) by the time
distributions are required to begin, life expectancies shall be
recalculated annually. Such election shall be irrevocable as to the
Participant (or spouse) and shall apply to all subsequent years. The
life expectancy of a nonspouse Beneficiary may not be recalculated.
(5) Participant's benefit.
(i) The Account balance as of the last valuation date in
the calendar year immediately preceding the distribution
calendar year (valuation calendar year) increased by the
amount of any contributions or forfeitures allocated to the
Account balance as of dates in the valuation calendar year
after the valuation date and decreased by distributions made
in the valuation calendar year after the valuation date.
(ii) Exception for second distribution calendar year. For
purposes of paragraph (i) above, if any portion of the minimum
distribution for the first distribution calendar year is made
in the second distribution calendar year on or before the
required beginning date, the amount of the minimum distribu-
tion made in the second distribution calendar year shall be
treated as if it had been made in the immediately preceding
distribution calendar year.
(6) Required beginning date.
(i) General rule. The required beginning date of a
Participant is the first day of April of the calendar year
following the calendar year in which the Participant attains
age 70 1/2.
(ii) Transitional rules. The required beginning date of a
Participant who attains age 70 1/2 before January 1, 1988,
shall be determined in accordance with (1) or (2) below:
(1) Non-5-percent owners. The required beginning date of
a Participant who is not a 5-percent owner is the first day
of April of the calendar year following the calendar year in
which the later of retirement or attainment of age 70 1/2
occurs.
(2) 5-percent owners. The required beginning date of a
Participant who is a 5-percent owner during any year beginning
after December 31, 1979, is the first day of April following
the later of:
(i) the calendar year in.which the Participant attains age
70 1/2, or
(ii) the earlier of the calendar year with or within which
ends the plan year in which the Participant becomes a
5-percent owner, or the calendar year in which the Participant
retires.
(3) A Participant is treated as a 5-percent owner for
purposes of this section if such Participant is a 5-percent
owner as defined in Section 416(i) of the Code (determined
in accordance with Section 416 but without regard to whether
the Plan is top-heavy) at any time during the Plan Year ending
with or within the calendar year in which such owner attains
age 66 1/2 or any subsequent plan year.
(4) Once distributions have begun to a 5-percent owner under
this section, they must continue to be distributed, even if
the Participant ceases to be a 5-percent owner in a subsequent
year.
6.09 Commencement of Benefits.
Unless the Participant elects otherwise, distribution of benefits will
begin no later than the 60th day after the latest of the close of the
Plan Year in which:
(a) the Participant attains Normal Retirement Age,
(b) occurs the 10th anniversary of the year in which the
Participant commenced participation in the plan; or,
(c) the Participant terminates service with the Employer.
Notwithstanding the foregoing, the failure of a Participant and spouse
to consent to a distribution pursuant to Section 6.10 of the Plan,
shall be deemed to be an election to defer commencement of payment of
any benefit sufficient to satisfy this Section.
6.10 Restriction On Immediate Distributions. If the value of a Participant's
vested account balance derived from Employer and Employee contributions exceeds
(or at the time of any prior distribution exceeded) $3,500, the Participant
and the Participant's spouse must consent to any distribution of such account
balance prior to the later of Normal Retirement Age or the annuity starting
date. The consent shall be obtained in writing within the 90-day period
ending on the first day of the first period for which an amount is paid. The
Administrator shall notify the Participant and the Participant's spouse of the
right to defer any distributions. Such notification shall include a general
description of the material features, and an explanation of the relative values
of, the optional forms of benefit available under the Plan in a manner that
would satisfy the notice requirements of Section 417(a)(3) of the Code and
shall be provided no less than 30 days and nor more than 90 days prior to the
first day of the first period for which an amount is paid.
The consent of the Participant and the Participant's spouse shall not be
required to the extent that a distribution is required to satisfy Section
401(a)(9) or Section 415 of the Code.
For purposes of determining the applicability of the foregoing consent require-
ments to distributions made before the first day of the first Plan Year
beginning after December 31, 1988, the Participant's vested account balance
shall not include amounts attributable to accumulated deductible Employee
contributions within the meaning of Section 72(o)(5)(B) of the Code.
6.11 Cashouts. If the value of a Participant's vested account balance
derived from Employer and Employee contributions is currently less than $3,500
and was less than $3,500 at the time of any prior distribution, the Admini-
strator may immediately distribute such benefit without the Participant's
consent, provided a termination of service has occurred and the entire vested
benefit is distributed. For purposes of this Section, if the value of a
Participant's vested Account balance is zero, the Participant shall be deemed
to have received a distribution of such vested Account balance. A Participant's
vested Account balance shall not include accumulated deductible Employee contri-
butions within the meaning of Section 72(0)(57)(B) of the Code for Plan Years
beginning prior to January 1, 1989.
6.12 Vesting After In Service Distribution. If a distribution is made at a
time when a Participant has a nonforfeitable right to less than 100 percent of
the Account balance derived from Employer Contributions and the participant
may increase the nonforfeitable percentage in the Account:
(1) A separate account will be established for the Participant's
interest in the Plan as of the time of the distribution, and
(2) At any relevant time the Participant's nonforfeitable portion
of the separate account will be equal to an amount ("X') determined
by the formula:
X=P (AB + (R x D)) - (R x D)
For purposes of applying the formula: P is the nonforfeitable percentage
at the relevant time, AB is the account balance at the relevant time,
D is the amount of the distribution, and R is the ratio of the account
balance at the relevant time to the account balance after distribution.
6.13 Loans to Participants. The Administrator shall direct the Trustees to
loan a Participant who is an active Employee an amount from his accounts in
accordance with the following rules.
A Participant's loan shall not exceed the lesser of
(1) $50,000 reduced to the extent of (i) the highest outstanding
loan balance of the Participant's loans outstanding during the
immediately prior 12-month period (ending the day before the new
loan is granted) over, (ii) the total of all outstanding loans the
day the new loan is granted; or
(2) 50% of the Participant's Total Vested Account Balance.
For purposes of this Section, "Total Vested Balance" means the total,
dollar value, as of the Valuation Date coinciding with or next preceding
the date of the loan, of the Participant's Employee Elective Account,
the vested portion of the Participant's Employer Non-Elective Profit
Sharing Contribution Account and the vested portion of the Partici-
pant's Employer Non-Elective Matching Account. The minimum loan for
any purpose will be $1,000.00. Anything to the contrary notwithstand-
ing the Administrator may further limit the maximum amount of a loan
to comply with Section 408(b)(1) of the ERISA and the regulations
thereunder.
All loans shall be subject to the approval of the Administrator. The Admini-
strator will adopt a written loan program which will be administered by the
Administrator which shall contain a procedure for applying for loans, the
basis upon which loans will be approved or denied, limitation on types of
loans, a procedure for determining a reasonable rate of interest, the types of
collateral which may secure a Participant loan, and the events constituting
default and the steps which will be taken to preserve plan assets in the event
of such default. In addition, all loans shall comply with the following terms
and conditions:
(a) Loans shall be made available to all Participants and Beneficiaries
on a reasonably equivalent basis.
(b) Loans shall not be made available to Highly Compensated
Employees in an amount greater than the amount made available to
other Employees.
(c) Loans must bear a reasonable interest rate and be secured by
the balances remaining in the Participant's Accounts.
(d) All loans shall be amortized in level payments (principal
and interest) not less frequently than quarterly over a period
not extending beyond 5 years, unless such loan is used to acquire
the principle residence of the Participant.
(e) Each loan shall be treated as a separate investment of the
funds credited to such Participant's Accounts.
(f) A participant must obtain the consent of his or her Spouse,
if any, to use his Account balance as security for a loan. Spousal
consent shall be obtained no earlier than the beginning of the
90-day period that ends on the date on which the loan is to be
secured. The consent must be in writing, must acknowledge the
effect of the loan and must be witnessed by a Plan representative
or notary public. A new consent shall be required if the Account
balance is used for renegotiation, extension, renewal, or other
revision of the loan. However, no consent shall be required if
the total accrued benefit subject to the security is not in excess
of $3,500,00.
(g) In the event of default, foreclosure on the note and attach-
ment of security will not occur until a distributable event occurs
in the Plan.
(h) No distribution shall be made to any Participant or former
Participant or to a Beneficiary of any such Participant unless
and until all unpaid loans to such Participant or Former Partici-
pant, including accrued interest thereon, have been liquidated.
(i) No more than one loan will be allowed in any 12 month period
beginning with the beginning date of the existing loan, and no
loan shall be permitted unless all prior loans have been completely
repaid.
(j) If reduction is used as repayment of the loan, the portion
of the Participant's Account balance used as security shall be
taken into account for purposes of determining the amount of the
Account balance payable at the time of death or distribution. If
less than 100% of the Account balance is payable to a surviving
spouse, then the Account balance shall be adjusted by first reduc-
ing the vested Account balance, and then determining the benefit
payable to the spouse.
ARTICLE VII
PROFIT SHARING ACCOUNTS
7.01 Article Controls. Any Plan provisions to the contrary
notwithstanding, the provisions of this Article VII shall control with respect
to adjustments to be made to Participants' Profit Sharing Accounts in accordance
with Section 5.05(d) of this Plan.
7.02 Definitions. Where the following words and phrases appear in this Article
VII, they shall have the respective meanings set forth below, unless their
context clearly indicates to the contrary:
(a) Active Accounts - Except as is otherwise provided below in
this paragraph (a), an Active Account is maintained for each active
Plan Participant:
(i) until his last day of Continuous Service (severance from
service date), in the case of a permanent, full-time Employee;
(ii) for as long as he remains an Employee (as defined) and
has at least 1,000 Hours of Service in a Plan Year, in the
case of a part-time or temporary Employee.
Active Accounts share in forfeitures and actual investment experience in the
Fund. If a Participant goes on a Leave of Absence, enters Military Service,
retires at or after age 65, dies, becomes Totally and Permanently Disabled,
or is transferred to the bargaining unit, his Account shall be considered an
Active Account until the Valuation Date coinciding with or following the date
of such event, and on such Valuation Date shall participate in the allocation
of forfeitures and investment experience for the Plan Year ended on such
Valuation Date, as provided in Section 5.05(d); this sentence shall apply to
a part-time or temporary Employee only if:
(i) the employee had at least 1,000 Hours of Service in
the Plan Year immediately preceding the Plan Year in which
any of the events referred to occurred, and
(ii) he has, in the Plan Year in which such event occurs,
at least that number of Hours of Service determined by
multiplying 1,000 by the fraction of the Plan Year elapsed
from the beginning of the Plan Year to the date of the occur-
rence of any of the events referred to.
After such allocations the account shall become a Distribution Account, except
that with respect to an Employee who went on Leave of Absence, entered Military
Service, or was transferred to the bargaining unit, his entire account shall
become an Inactive Account.
(b) Credited Interest - Credited interest means the guaranteed amount of
interest payable on distributions under the Plan. The rate of such Interest
shall be established by the Trustees at the prevailing rate from Treasury Bills
on each Valuation Date. The Trustees may change such rate at any time, and
from time to time.
(c) Credited Service - Credited Service means the elapsed time after becoming a
Participant, from the date of a person's employment or reemployment with the
Company as an employee (regardless of whether such employment was as a bargain-
ing unit employee or not), up to his "Severance from Service date", including
such period as may be reinstated in accordance with Section 3.02. "Severance
from Service date" means the later of:
(i) expiration of an Authorized Leave of Absence (as
defined in Section 2,09) which is of more than 12 months
duration or absence on Military Service (as defined in
Section 7.02(h)) for more than 12 months; or
(ii) the first anniversary of the first date of a period in which
the Employee remains absent from service with the Company
(with or without pay) for any reason other than quit, retire-
ment, discharge or death, such as vacation, holiday, sickness,
disability, Leave of Absence (other than one of more than 12
months duration); Military Service (other than absence in
Military Service of more than 12 months) or layoff; or date
of quit, retirement, discharge or death, if earlier. Unless
the context clearly indicates otherwise, any reference in the
Plan to "last day of Continuous Service" or "break in
Continuous Service" shall be deemed to mean the same as
severance from service date.
(d) Distribution Accounts - A Distribution Account is maintained for each
former Participant (or beneficiary thereof) entitled to current distributions
from the Plan, for as long as he has any undistributed balance in such Account.
Amounts become distributable to or on behalf of former Participants from their
Distribution Accounts in accordance with Section 7.05. Distribution Accounts
do not participate in forfeitures or actual investment experience in the Fund,
but are credited with a fixed rate of Credited Interest as provided in Section
7.04(a).
(e) Fund - Fund means all cash, securities and other property held by the
Trustees under the Profit Sharing Fund. It shall consist of two parts: the
"Regular Fund", which arises by virtue of Company contributions to the Plan
prior to this restatement and the investment thereof; and the "Voluntary Fund",
which arises by virtue of voluntary employee contributions to the plan prior
to this restatement, and the investment thereof. Each of these units within
the fund shall be kept separate and distinct at all times.
(f) Inactive Accounts - An Inactive Account is maintained for:
(i) each former Participant who is transferred to the bargaining unit, goes
on a Leave of Absence, or enters Military Service, from the Valuation Date
following such event as provided in paragraph (d) above, for as long as he
remains employed in the bargaining unit, or is on Leave of Absence or in
Military Service, as the case may be. The account shall remain an Inactive
Account until the individual attains retirement age 65, dies, is totally and
permanently disabled, terminates employment or returns to the group covered
by this Plan, whichever shall first occur, at which time his Account shall
become a Distribution Account, a Suspense Account, an Active Account or remain
an Inactive Account, as appropriate, and be governed by the other provisions
of the Plan.
(ii) each former Participant who terminates service after achieving partial
vesting but prior to achieving full vesting, but his account shall become an
Inactive Account only after the amount of his vested interest becomes available
for transfer from his Suspense Account, as provided in Section 7.05.
(iii) each former Participant who terminates service with full vesting but
prior to fulfilling the conditions which would permit current distributions
to him from the Plan.
(iv) each Participant who is a part-time or temporary Employee and whose Hours
of Service in a Plan Year are less than 1,000.
Except as provided above to the contrary, the transfer of account balances and
creation of Inactive Accounts shall be deemed to take place at the beginning of
the Plan Year in which the change in employment status takes place (except in
the case of transfers of the vested portion of a Suspense Account, in which
case such transfer will be deemed to take place on the last day of the Plan
Year in which such vested amount becomes available for transfer). Inactive
Accounts share in the allocation of actual investment experience of the Fund,
but do not share in the allocation of forfeitures.
(g) Late Payment Interest - Late Payment Interest means the guaranteed amount
of interest payable on distributions under the Plan. The rate of such Interest
shall be established by the Trustees at such rate as they deem to be fairly
comparable to rates of interest being paid by banks on savings accounts. The
Trustees may change such rate at any time, and from time to time, and in the
absence of any such designation shall be 5%.
(h) Military Service - Military Service means Service in the Armed Forces of
the United States of a person who leaves the employment of the Company to enter
such service, provided that he returns to the employment of the Company at the
time and under the conditions required to give him re-employment rights under
any applicable Federal or State Law.
(i) Suspense Accounts - A Suspense Account is maintained for each former
Participant who shall have terminated service with less than full vesting, and
is created by transferring to such account the entire balance in such Partici-
pant's Active Account or Inactive Account, as provided in Section 7.05. The
Account shall remain a Suspense Account until the Valuation Date on which the
forfeiture arising therefrom becomes available for re-allocation or until it
otherwise ceases to be a Suspense Account, as provided in Section 7.05. Suspense
Accounts do not participate in the allocation of forfeitures, but do participate
in the allocation of actual investment experience in the Fund.
(j) Valuation Date - Valuation Date shall mean the last day of the plan year.
The assets of the trust will be valued annually at fair market value as of the
last day of the Plan Year. On such date, the earnings and losses of the trust
will be allocated to each Participant's account in the ratio that such account
balance bears to all account balances, in accordance with Section 7.04 of this
plan.
7.03 Participants' Accounts: The Trustees shall create and maintain a separate
account with the Regular Fund for each Participant to which shall be credited
all amounts allocated to the Participant under the Plan and to which shall be
charged all amounts paid out of the trust to or on behalf of the Participant,
except any such amounts relating to his Voluntary Account. The following types
of accounts.shall be maintained:
7.04 Regular Fund: As of each Valuation Date, the following allocations shall
be made in the order shown, in accordance with Section 7.02(j) of the plan:
(a) Regardless of the sufficiency of interest, dividends and other
increments to the Regular Fund during the year, Credited Interest shall
be added to each Distribution Account. The balance in each Distribution
Account shall be deemed to be the balance at the beginning of the Plan
Year in question; less any distributions made during such Plan Year
(exclusive of late-payment interest); plus cash values and other credits
received from the insurance company in return for insurance policies on
the life of the Participant which shall have been surrendered to the i
nsurance company for cash, but multiplied by a fraction, the numerator
of which shall be the number of months from the first day of the month
coinciding with or next following the date such cash value or other
credit was received to the Valuation Date, and the denominator of which
shall be 12. The amount of Credited Interest to be added to each
Distribution Account shall be equal to the balance in the Distribution
Account thus determined, multiplied by the annual rate of Credited
Interest last established by the Trustees.
(b) Forfeitures shall be allocated to active Participants plus former
Participants who still have active accounts in force as follows: Each
such Participant shall be credited with one unit for each completed year
of his Credited Service up to the Valuation Date (or, in the case of a
former participant included in the allocation, one unit for each completed
year of his Credited Service up to the date as of which he ceased to be
an active Participant, i.e. date of Permanent Disability as the case may
be); plus one unit for each full $100 of his Compensation during the Plan
Year ending on the Valuation Date (Compensation, as defined, excludes any
amounts paid to the Employee prior to his becoming a Participant or after
his retirement, death, transfer to the bargaining unit or Total and
Permanent Disability).
There shall be allocated to the Active Account of each Participant or eligible
former Participant that portion of the forfeitures from the Profit Sharing Fund
which his units thus credited bear to the total units thus credited to all
Participants and eligible former Participants. Units shall not be cumulative,
but shall be redetermined each year.
(c) Net Investment Income shall be allocated to Active Accounts,
Inactive Accounts and Suspense Accounts as follows: first, Net Investment
Income shall be determined as the sum of interest, dividends, realized
gains and losses, unrealized gains and losses, and any other unallocated
increment to the Fund from investment or other source except Company
contributions less the sum of (i) administration expenses paid from the
Fund, (ii) Credited Interest added to Distribution Accounts pursuant to
paragraph (a) of this Section 7.04, and (iii) any amounts of late-payment
interest calculated with respect to and distributed in the current Plan
Year. Next, the average balance in each of such Accounts shall be deter-
mined as the sum of (i) the balance in such Account as of the beginning
of the Plan Year in question (i.e,, the balance at the previous Valuation
Date after allocating the then current Company contribution and for-
feitures to Active Accounts); plus (ii) cash values and other credits
received from the insurance company in return for insurance policies on
the life of the Participant which shall have been surrendered to the
insurance company for cash, but multiplied by a fraction, the numerator
of which shall be the number of months from the first day of the month
coinciding with or next following the date such cash value or other
credit was received to the Valuation Date, and the denominator of which
shall be 12; less (iii) any cash distributions made from the Account
during the year (exclusive of late-payment interest), and less (iv) any
premiums on insurance policies paid during the Plan Year in question but
multiplied by a fraction the numerator of which is the number of months
from the first day of the month in which the premium was due, to the end
of the Plan Year, and the denominator of which is 12. Net Investment
Income shall be allocated to each Active Account, Inactive Account and
Suspense Account in that proportion which the average balance thus
determined for such Account bears to the total of all such average
balances for all Active, Inactive and Suspense Accounts on the Valuation
Date, After this allocation of Net Investment Income, the total of the
balances in all Distribution, Inactive, Active and Suspense Accounts will
equal the total assets of the Fund (excluding cash value of insurance
policies).
7.05 Forfeitures
1(a) If the Participant's Vested Percentage determined under Section 6.05 is
less than 100%, the entire balance in his Active or Inactive Account shall be
transferred to a Suspense Account. Such transfer is deemed to have been made
on the first day of the Plan Year in which the former Participant's employment
with the Company shall have terminated. Any insurance policies in force on the
life of the Participant shall be surrendered to the insurance company or sold
to the Participant; proceeds of such surrender or sale shall be credited to
the Participant's Suspense Account as received, together with any dividends,
premium refunds or other credits received from the insurance company. The
Account shall remain a Suspense Account until the former Participant shall
have been absent from employment with the Company for one year measured from
the date of his termination of service at which time the vested portion of his
Suspense Account (his Vested Percentage multiplied by the balance in his
Suspense Account as at the end of the previous Plan Year) shall be transferred
to an Inactive Account, and the balance (non-vested) portion of the Suspense
Account shall become a forfeiture and available for reallocation on the
Valuation Date coinciding with or next following the date which is one year
following the date of the Participant's termination of service.
(b) If however, a former Employee is re-employed by the Company
within the 12 month period following his date of termination of
service, the full amount in the Employee's Suspense Account shall
thereupon be transferred to an Active or Inactive Account, as the
case may be, and the Suspense Account closed. The individual shall
thereafter be treated as if he had not terminated service, except
that he may have been disqualified from receiving an allocation of
forfeitures during the period he was not employed by the Company.
2. Notwithstanding anything above to the contrary, if the date of termination
of service of a Participant or former Participant falls on the Valuation Date,
he still shall participate in allocations as if he were still in the employ of
the Company on such date and only after such allocations will the individual
be deemed to have terminated service.
(c) If a former Participant fails to return from a Leave of Absence
at or prior to the expiration thereof, or if a former Participant
who shall have entered the Military Service fails to return to the
employ of the Company under the conditions set forth in Section
7.02(h), his service with the Company shall be deemed to have
terminated on his last day of active employment prior to such Leave
or Military Service, as the case may be, and his Vested Percentage
for purposes of paragraph (1) determined accordingly.
(d) No Credited Service earned after
(i) a continuous absence from employment of 12 months or more,
in the case of a permanent, full-time Employee, or
(ii) a Break-in-Service, in the case of a temporary or part-time
Employee,
shall be taken into account in determining the Vested Percentage applicable to
his Account accrued up to such continuous absence or Break Year.
7.06 Voluntary Fund - Effective December 1, 1987, participants shall not be
permitted to make any voluntary after tax contributions to the Fund. However,
the "Voluntary Fund" established prior to this restatement of the plan shall
remain part of the Fund. A Participant's interest in the Voluntary Fund shall
be referred to as his Profit Sharing Voluntary Account.
The Voluntary Fund shall be invested separately, and in all other respects shall
be kept separate and distinct, from the fund arising from Company contributions.
Each Participant's contributions, plus (or minus) his share of interest,
dividends, realized or unrealized gains or losses, other income or profit
resulting from the investment thereof, and administration expenses chargeable
to the Voluntary Fund, shall at all times be fully vested in the Participant
and nonforfeitable.
Investment experience (less administration expenses chargeable to the Voluntary
Account) shall be allocated to Participants' Voluntary Accounts as of each
Valuation Date, in proportion to the balances in each account.
7.07 Transfers to Pension Trust - The Administrator shall direct the Trustee,
if the Participant so requests, that in lieu of distribution pursuant to this
Plan as provided in Section 6.07, such Participant's Vested Regular Fund
balance maintained pursuant to this article be transferred to the Plymouth
Rubber Company Management Employee's Pension Trust provided that any notice
and consent requirements of Sections 417 and 411(a)(ii) of the Code are met
and that such transfer does not result in the elimination of any protected
benefits as described in Section 411(d)(6) of the Code.
ARTICLE VIII
TOP HEAVY PROVISIONS
8.01 Supersession. If the Plan is or becomes Top-Heavy in any Plan Year, the
provisions of Article VIII will supersede any conflicting provision in the Plan.
8.02 Minimum Allocation.
(a) Except as otherwise provided in (c) and (d) below, the
Employer Non-Elective Profit Sharing Contributions and Forfeitures
allocated on behalf of any Participant who is not a Key Employee
shall be equal to at least 3 percent (3%) of such Participant's
Compensation. However, if (i) the sum of the Employer's Non-
Elective Profit Sharing contributions and Forfeitures allocated
to the Employer Contribution Account of each Key Employee for such
years is less than three percent (3%) of each Key Employee's
Compensation, and (ii) this Plan is not required to be included in
an Aggregation Group to enable a defined benefit plan to meet the
requirements of Section 401 of the Code, the allocations to the
Employer Non-Elective Profit Sharing Account of each Non-Key
Employee shall equal the largest percentage allocated to said
accounts of each Key Employee. This minimum allocation shall be
made even though, under other Plan provisions, the Participant
would not otherwise be entitled to receive an allocation, or would
have received a lesser allocation for the Year because of (1) the
Participant's failure to complete 1,000 Hours of Service (or any
equivalent provided in the Plan), or (2) the Participant's failure
to make mandatory Employee contributions to the Plan including any
deferrals under Section 4.02(a) hereof, or (3) Compensation less
than a stated amount. However for Plan Years beginning after
December 31, 1988, in determining whether a Non-Key Employee has
received the required allocation, such Non-Key Employee's Elective
Deferrals and Matching Contributions shall not be taken into
account.
(b) For purposes of computing the minimum allocation, compensation
means total W-2 earnings for Plan Year.
(c) The provision in (a) and (b) above shall not apply to any
Participant who was not employed by the Employer on the last day of
the Plan Year.
(d) The provision in (a) and (b) above shall not apply to any
Participant to the extent the Participant is also a participant in
another plan or plans of the Employer and the Employer has provided
that the minimum allocation or benefit requirement applicable to
Top-Heavy plans will be met in the other plan or plans.
(e) The minimum allocation required (to the extent required to be
nonforfeitable under Section 416(b)) may not be forfeited under
Section 411(a)(3)(B) or 411(a)(3)(D).
8.03 Top-Heavy Vesting Schedule.
(a) For any Plan Year in which this Plan is Top-Heavy, the con-
tingent vesting schedule provided in (b) below will automatically
apply to the Plan. The minimum vesting schedule applies to all
benefits within the meaning of Section 411(a)(7) of the Code
except those attributable to Employee Contributions, including
benefits accrued before the effective date of Section 416 of the
Code and benefits accrued before the Plan became Top-Heavy.
Further, no reduction in vested benefits may occur in the event
the Plan's status as Top-Heavy changes for any Plan Year. However,
this section does not apply to the Account balances of any Employee
who does not have an Hour of Service after the Plan has initially
become Top-Heavy and such Employee's Account balance attributable
to Employer Contributions and Forfeitures will be determined
without regard to this Section.
(b) For any Plan Year in which the Plan is Top-Heavy the Account
balances of each Employee will vest in accordance with the fol-
lowing schedule:
Top-Heavy Vesting Schedule
Years of Service Vested Percentage
less than 1 0%
1 but less than 2 10%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 or more 100%
8.04 Impact on Maximum Benefits. For any Top-Heavy year, Section 5.08 shall
be read by substituting the number 1.00 for the number 1.25 wherever it appears
therein except such substitution shall not have the effect of reducing any
benefit accrued under a defined benefit plan prior to the first day of the
Year in which this provision becomes applicable.
ARTICLE IX
ADMINISTRATIVE COMMITTEE
9.01 Appointment. The Employer shall appoint a Committee to administer the
Plan consisting of one or more persons who shall have authority to control
and manage the administration of the Plan. Any member of the Committee may
resign at any time by delivering to the Employer a written notice of resigna-
tion, to take effect at a date specified therein, which shall not be less than
thirty (30) days after the delivery thereof unless such notice is waived, in
writing, by the Employer. If the Employer fails to appoint a Committee, the
Employer shall be deemed to be the Plan Administrator.
The members of the Committee shall serve at the pleasure of the
Employer and may be removed by delivery of written notice of removal,
to take effect at a date specified therein, which shall not be less
than thirty (30) days after delivery thereof, unless such notice shall,
in writing, be waived.
9.02 Rules. The Committee shall adopt such rules for the conduct of its
business and administration of the Plan as it considers desirable, provided
they do not conflict with the Plan.
9.03 Agents. The Committee may authorize one or more of its members or any
agent to act on its behalf and may contract for legal, medical, accounting,
clerical and other services to carry out the purposes of the Plan.
9.04 Construction. The Committee may construe the Plan, determine the
percentage of vesting for each Participant, correct defects, supply omissions
or reconcile inconsistencies to the extent necessary to effectuate the Plan
and, subject to Section 9.06, such action shall be conclusive.
9.05 Records. The Committee shall keep records reflecting its administration
of the Plan which shall be subject to audit by the Employer. Employees may
examine records pertaining directly to them.
9.06 Conflict of Interest. No member of the Committee shall participate in
any decision of the Committee which involves the payment of benefits to him
or in which he has a financial interest other than as a Participant in the
Plan. If the entire committee is disqualified to act by reason of this Section
9.06, the Trustee shall perform as the Committee.
9.07 Claims. Any denial by the Committee of a claim for benefits under the
Plan by an Employee or Beneficiary shall be stated in writing by the Committee
and delivered or mailed to the Employee or Beneficiary; and such notice shall
set forth the specific reasons for the denial. Following receipt of the
written denial, such person may request a personal hearing before a Claims
Committee of three (3) persons appointed by the Employer. Such request shall
be made within a reasonable time following receipt by such person of the written
denial. Prior to the hearing, such person, or his representative, may review
the Employer's file on the Employee's service and claim for benefits. The
ruling of the Claims Committee shall be made as soon as practical after the
hearing. Such ruling shall be in writing and shall set forth the reasons for
any denial with references to the pertinent Plan provisions upon which the
decision is based. Such ruling shall be conclusive.
9.08 Liability. The Committee and its assistants and representatives shall
not be liable for any loss to the Fund or any act done or omitted by it, unless
due to its own gross negligence, willful misconduct, lack of good faith or
violation of Part 4 of Title I of ERISA.
9.09 Indemnification. In the event and to the extent not insured against by
any insurance company pursuant to the provisions of any applicable insurance
policy, the Employer shall indemnify and hold harmless the members of the
Committee and their assistants and representatives from any and all claims,
demands, suits or proceedings in connection with the Plan or Trust that may
be brought by the Employer's Employees, Participants or Beneficiaries or legal
representatives or by any other person, corporation, entity, government or
agency thereof, provided, however, that such indemnification shall not apply
to any such person for such person's acts of gross negligence or willful mis-
conduct in connection with the Plan or Trust.
9.10 Administrative Expenses. All usual and reasonable expenses of Plan
administration may be paid in whole or in part by the Employer, and any expenses
not paid by the Employer shall be paid by the Trustee out of the Trust. Any
members of the Committee who are Employees shall not receive compensation with
respect to their service on the Committee.
ARTICLE X
TRUST FUND
10.01 The Trust. All assets of the Plan shall be held in a Trust forming part
of the Plan, which shall be administered as two funds to provide for the
payment to the Participants or their successors in interest, out of the income
and principal of the Trust, of benefits as provided in the plan. The "Profit
Sharing Fund" will consist of Participants Profit Sharing Accounts as of April
1, 1990, and any future income earned by such fund. The "401(k) Fund" will
consist of all contributions made in accordance with Section 4 of this restated
plan, and any future income attributable to such fund. All Fiduciaries with
respect to the Plan and Trust shall discharge their duties as such solely in
the interest, and (1) for the exclusive purpose of providing benefits to
Participants and their successors in interest and defraying reasonable expenses
of administering the Plan and Trust, (2) with the care, skill, prudence, and
diligence under the circumstances then prevailing that a prudent man acting
in a like capacity and familiar with such matters would use in the conduct of
an enterprise of like character and with like aims and (3) in accordance with
the Plan and Trust Agreement, except to the extent such documents may be
inconsistent with the then applicable federal laws relating to fiduciary
responsibility. The assets of the Plan shall never revert to or inure to the
benefit of the Employer.
10.02 Investment Powers. In addition to powers given by law, the Trustee may;
(a) Except as hereinafter limited, invest in any form of property
without restriction to investments authorized for fiduciaries, including,
without limitation on the amount that may be invested therein, any common
trust fund operated by the Trustee; provided that as long as the Trust has any
investments in common trust funds available only to pension trusts and profit
sharing trusts which meet the requirements of Section 401(a) of the Code, such
common trust fund shall constitute an integral part of the Plan and Trust;
(b) Hold cash uninvested and deposit the same with any financial
institution.
(c) Join in or oppose the reorganization, recapitalization,
consolidation, sale or merger of corporations or properties,
including those in which it is interested as Trustee, upon such
terms as it deems wise;
(d) Dispose of property for such prices and on such terms as it
seems best without liability on the purchasers to see to the
application of the purchase money;
(e) Hold investments in nominee or bearer form;
(f) Give proxies;
(g) Sell, write and otherwise deal in calls, and other options
for the sale of securities.
(h) It is expressly intended that the funds of the Profit Sharing
Fund may be invested in "Qualifying Employer Securities" as that
term is defined in ERISA, provided, however, that the Trustee shall
not be permitted to acquire qualifying employer securities if
immediately after the acquisition of such securities the fair
market value of all qualifying employer securities held by the
Trustee hereunder should amount to more than 10% of the fair market
value of all the assets held in the Trust Fund.
10.03 Investment Funds. At the direction of the Administrative Committee
pursuant to Section 5.07, the trustee shall establish several separate invest-
ment funds for the 401(k) Fund with specific investment objectives among which
participants may direct the investment of their accounts.
ARTICLE XI
ACCOUNTINGS
11.01 Separate Accounts. A separate Account shall be maintained for each
Participant. Accounts established hereunder shall consist of an Employer Non-
Elective Profit Sharing Account, an Employee Elective Account, an Employer
Matching Account, a Profit Sharing Account and a Profit Sharing Voluntary
Account. A separate Account shall also be maintained for any Rollover Account
established pursuant to Section 4.05. Each account shall reflect the contribu-
tions made to that account and the income, losses, appreciation and depreciation
attributable to both such items. 11.02 Trust Records. The Trustee shall keep
accounts of transactions hereunder which shall be open to inspection and audit
by persons designated by the Committee or by the Employer.
11.03 Annual Accountings. Within ninety (90) days after each Valuation Date,
or a reasonable time thereafter if for reasons beyond its control, and within
ninety (90) days after its removal or resignation, the Trustee shall file with
the Committee an account of its administration of the Funds during such Year
or from the end of the preceding Plan Year to the date of removal or resigna-
tion. Neither the Employer, the Committee nor any other person shall be
entitled to any further accounting by the Trustee.
ARTICLE XII
GENERAL PROVISIONS CONCERNING THE TRUSTEE
12.01 Protection. The Trustee shall pay benefits only as directed by the
Committee and shall be fully protected in so doing.
12.02 Direction of Committee. Whenever the Trustee must or may act upon the
direction or approval of the Committee, the Trustee may act upon written com-
munication signed by any Committee member or any agent appointed in writing by
the whole Committee to act on its behalf whose authority shall be deemed to
continue until revoked in writing. The Trustee shall incur no liability for
failure to act without such a communication.
12.03 Identity of Committee Members. Whenever the Committee is appointed or
its membership changes, the Employer shall advise the Trustee in writing of the
names of the Committee members and the Trustee may assume that those persons
continue in office until advised differently in the same manner.
12.04 Compensation. The Trustee shall receive compensation according to its
standard schedule of rates in effect from time to time. Such compensation
shall be paid from the Fund, but the Employer may reimburse the Fund for any
such payment. All unreimbursed expenses of the Fund including legal fees and
expenses incurred by the Trustee in administering the Trust, taxes and other
items not payable out of the Trustee's compensation shall be paid from the
Fund. In no event will compensation be paid to a Trustee if he receives
compensation as a fulltime employee of the Employer or any of its affiliates.
12.05 Liability. The Trustee shall not be liable for any loss to the Fund or
any act done or omitted by it, unless due to its own negligence, willful
misconduct, lack of good faith or violation of Part 4 of Title I of ERISA, and
except as herein provided, all claims against the Trustee shall be limited to
the Fund and the Trustee shall not be responsible for such claims in its
individual or corporate capacity.
12.06 Litigation. The Trustee need not engage in litigation unless first
indemnified against expense by the Employer or unless the litigation is
occasioned by the fault of the Trustee or involves a question of its fault.
12.07 Resignation. The Trustee may resign by written notice to the Employer
which shall be effective sixty (60) days after delivery. The Trustee may be
removed by the Employer by written notice to the Trustee which shall be
effective sixty (60) days after delivery. The Employer and the Trustee may
agree to waive all or part of such 60-day period. The Trustee shall deliver
the Fund to its successor on the effective date of the resignation or removal
or as soon thereafter as practicable, provided that this shall not waive any
lien the Trustee may have upon the Fund for its compensation or expenses.
12.08 Valuation. The Trustee shall value the Trust Fund annually on December
31st of each Year at its then fair market value. Additional valuation dates
may be established at the direction of the Committee. Such Valuations shall
be the basis of the adjustments provided by Section 5.05 and the values
determined in accordance with Article VI and VII. The Profit Sharing Fund
shall be valued in accordance with Article VII of the Plan.
ARTICLE XIII
AMENDMENT; TERMINATION; EXCLUSIVE BENEFIT
13.01 Amendments. The Employer reserves the right to make from time to time
any amendments to this Plan, including any amendment necessary or desirable,
with or without retroactive effect to comply with Section 4.01(a) of the
Internal Revenue Code; provided, however:
(a) No amendment shall provide that the fund shall be used for
purposes other than the exclusive benefit of Participants or Bene-
ficiaries, or that the fund shall ever revert to or be used or
enjoyed by any Employer;
(b) No amendment to the plan shall be effective to the extent that
it has the effect of decreasing a Participant's accrued benefit.
Notwithstanding the preceding sentence, a Participant's Account balance may be
reduced to the extent permitted under section 412(c)(8) of the Code. For
purposes of this paragraph, a Plan amendment which has the effect of decreasing
a Participant's Account balance or eliminating an optional form of benefit, with
respect to benefits attributable to service before the amendment shall be
treated as reducing an accrued benefit. Furthermore, if the vesting schedule
of a plan is amended, in the case of an Employee who is a Participant as of the
later of the date such amendment is adopted or the date it becomes effective,
the nonforfeitable percentage (determined as of such date) of such Employee's
right to his Employer-derived accrued benefit will not be less than his per-
centage computed under the Plan without regard to such amendment.
13.02 Action by Employer. Any action by the Employer under this Plan may be
made by resolution of its Board of Directors, or by any person or persons duly
authorized by resolution of said Board of Directors to take such action.
13.03 Exclusive Benefit. The corpus or income of the Trust may not be diverted
to or used for other than the exclusive benefit of the Participants or their
Beneficiaries.
13.04 Termination. The Plan may also be partially terminated or completely
terminated at any time. If the Plan is partially terminated, all amounts
credited to the Accounts of Participants who are terminated from the Plan shall
vest and become nonforfeitable. If the Plan is completely terminated or if
there is a complete discontinuance of contributions under the Plan, all amounts
credited to the Accounts of Participants shall vest and become nonforfeitable.
13.05 Amendment to Vesting Schedule. If the Plan's vesting schedule is amended,
or the Plan is amended in any way that directly or indirectly affects the
computation of the Participant's nonforfeitable percentage, or if the Plan is
deemed amended by an automated change to or from a Top-Heavy vesting schedule,
each Participant with at least three Years of Service with the Employer may
elect within a reasonable period after the adoption of the amendment or change,
to have the nonforfeitable percentage computed under the Plan without regard
to such amendment or change. For Participants who do not have at least 1 Hour
of Service in any Plan Year commencing after December 31, 1988, the preceding
sentence shall be applied by substituting "5 Years of Service" for "3 Years of
Service". The period during which the election may be made shall commence with
the date the amendment is adopted or deemed to be made and shall end on the
later of:
(a) 60 days after the amendment is adopted;
(b) 60 days after the amendment becomes effective;
(c) 60 days after the Participant is issued written notice of the
amendment by the Employer or the Plan Administrator.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.01 Contract of Employment. The adoption and maintenance of the Plan shall
not be deemed to constitute a contract of employment or to be a consideration
for or inducement or condition of the employment of any person. Nothing herein
contained shall be deemed to give any Employee the right to be retained in the
employ of the Employer or to interfere with the rights of the Employer to
discharge any Employee at any time, nor shall it be deemed to give the Employee
the right to remain in its employ nor shall it interfere with the Employee's
right to terminate his employment at any time.
14.02 Benefits from Trust Alone. All benefits payable under the Plan shall be
paid or provided for solely from the Trust. The Employer is under no legal
obligation to make any discretionary contribution to the Trust. No action or
suit shall be brought by any Employee or Beneficiary or by the Trustee, against
the Employer for any such contribution.
14.03 Spendthrift. The right of any Participant or his Beneficiary to any
benefit or to any payment hereunder shall not be subject to alienation or
assignment, and no Participant shall attempt to assign, transfer, or dispose
of any such right. The preceding sentence shall also apply to the creation,
assignment, or recognition of a right to any benefit payable with respect to
a Participant pursuant to a domestic relations order, unless such order is
determined to be a qualified domestic relations order, as defined in Section
414(p) of the Code.
14.04 Payment to Minor. In the event any benefit is payable to a minor or
incompetent or to a person otherwise under a legal disability, or in the dis-
cretion of the Employer, to a person who is by reason of advanced age, illness
or other physical or mental impairment incapable of handling the disposition of
his property, the Employer may apply the whole or any part of such benefit,
directly or indirectly to the care, comfort, maintenance, support, education or
use of such person or pay or distribute the whole or any part of such benefit
to (a) the parent of such person, (b) the guardian or other legal representa-
tive of such person, (c) the person with whom such person resides, (d) any per-
son having the care and control of such person, or (e) such person personally.
The receipt by the person to whom such payment or distribution is made shall be
sufficient discharge therefor.
14.05 Merger. In the case of any merger or consolidation with, or transfer of
assets and liabilities of the Plan to any other plan, each Employee and
Beneficiary shall, if the Plan then terminates, receive a benefit immediately
after the merger, consolidation or transfer which is equal to or greater than
the benefit he would have been entitled to receive if the Plan had terminated
immediately before the merger, consolidation or transfer.
14.06 Plan Parties. No regulated investment company or insurer shall be
considered a party to this Plan.
14.07 Headings. The titles and headings of the Articles and Sections in this
instrument are placed herein for convenience of reference only, and in case of
any conflicts, the text of this instrument shall control.
14.08 Gender. The masculine pronoun, wherever used herein, shall include the
feminine pronoun; and the singular shall include the plural.
14.09 Construction. The construction, validity, and administration of the Plan
and Trust shall be governed by the laws of the United States and, to the extent
not preempted by such laws, by the laws of the State of Massachusetts.
IN WITNESS WHEREOF, the Employer and Trustee have caused this agreement
to be executed by their duly authorized officers this
day of 1990.
Plymouth Rubber Company, Inc.
_____________________ BY:_______________________________
ITS
_____________________ BY:_______________________________
Trustee
AMENDMENT NO. 1
TO THE
PLYMOUTH RUBBER COMPANY, INC.
RETIREMENT SAVINGS AND PROFIT SHARING PLAN
AND TRUST
_______________________________________________________________________________
Pursuant to the provisions of Section 13.01 of the Retirement Savings and Profit
Sharing Plan and Trust, the Plan is hereby amended to meet Internal Revenue
Service requirements for approval effective as of December 1, 1989 as follows:
1. Section 7.04(b) is deleted in its entirety and the following substituted
therefor:
(b) Forfeitures from the Profit Sharing Fund shall be allocated to active
Participants plus former Participants who still have active accounts in
force as follows: Forfeitures from the Profit Sharing Fund shall be
allocated to the Active Accounts of Participants or eligible former
Participants in proportion to the amounts of Annual Compensation earned
during such Plan Year by the respective Participants (compensation, as d
efined, excludes any amounts paid to the Employee prior to his becoming a
Participant or after his retirement, death, transfer to the Bargaining Unit
or Total and Permanent Disability). Such allocation will be made as of the
last day of the Plan Year.
2. Section 7.05(1) is amended by adding the following paragraph (c).
(c) Amounts forfeited in accordance with the above paragraph 1(a) shall be
reinstated pursuant to the provisions of Section 6.05 regarding re-employed
participants.
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed this
__________ day of December, 1990.
PLYMOUTH RUBBER COMPANY, INC.
By ____________________________________
AMENDMENT NO. 2
TO THE
PLYMOUTH RUBBER COMPANY, INC.
RETIREMENT SAVINGS AND PROFIT SHARING PLAN
AND TRUST
_______________________________________________________________________________
Pursuant to the provisions of Section 13.01 of the Retirement Savings and Profit
Sharing Plan and Trust, the Plan is hereby amended effective as of June 1, 1991
as follows:
Section 16.13, paragraph (2) is amended by deleting the second sentence,
which reads as follows:
"The minimum loan for any purpose will be $1,000.00."
Section 16.13, Item (d) is amended by adding the following sentence:
"The minimum level payment for repayment of a loan is $10 per week, or $45
per month."
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed this
__________ day of June, 1991.
PLYMOUTH RUBBER COMPANY, INC.
By ____________________________________
AMENDMENT NO. 3
TO THE
PLYMOUTH RUBBER COMPANY, INC.
RETIREMENT SAVINGS AND PROFIT SHARING PLAN
AND TRUST
______________________________________________________________________________
Pursuant to the provisions of Section 13.01 of the Retirement Savings and Profit
Sharing Plan and Trust, the Plan is hereby amended effective as of January 1,
1992 as follows:
Section 3.01 paragraph (a) is amended by deleting subsection (i), which reads as
follows:
"(i) Employees whose employment is governed by the terms of a collective
bargaining agreement between employee representatives (within the meaning of
Section 7701(a)(46) of the Code) and the Employer under which retirement
benefits were the subject of good faith bargaining between parties."
Subsections (ii) and (iii) are hereby renumbered as subsections (i) and (ii),
respectively.
IN WITNESS WHEREOF, the Company has caused this amendment to be executed this
_____________ day of_________________, ________.
PLYMOUTH RUBBER COMPANY, INC.
By ___________________________________
AMENDMENT NO. 4
TO THE
PLYMOUTH RUBBER COMPANY, INC.
RETIREMENT SAVINGS AND PROFIT SHARING PLAN
AND TRUST
_______________________________________________________________________________
Pursuant to the provisions of Section 13.01 of the Retirement Savings and Profit
Sharing Plan and Trust, the Plan is hereby amended as follows:
1. Section 2.08 is amended, effective January 1, 1994, by adding the following
paragraph:
"In addition to other applicable limitations set forth in the Plan, and not
withstanding any other provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the Compensation of each Participant
taken into account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in
accordance with Section 401(a)(17)(B) of the Internal Revenue Code. The
cost-of-living adjustment in effect for a calendar year applies to any
period, not exceeding 12 months, over which compensation is determined
(determination period) beginning in such calendar year. If a determination
period consists of fewer than 12 months, the OBRA '93 annual compensation
limit will be multiplied by a fraction, the numerator of which is the number
of months in the determination period, and the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in this
Plan to the limitation under Section 401(a)(17) of the Code shall mean the
OBRA '93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into account in
determining an Participant's benefits accruing in the current Plan Year, the
Compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period.
For this purpose, for determination periods beginning before the first day
of the first Plan Year beginning on or after January 1, 1994, the OBRA '93
annual compensation limit is $150,000."
- 2 -
2. Effective December 31, 1994, a new Section 7.08 shall be added following
Section 7.07 to read as follows:
"7.08 Transfers to Employer Non-Elective Profit Sharing Contribution Account
Effective December 31, 1994, the Profit Sharing Account of each Partici-
pant whose Profit Sharing Account would not accumulate to at least $100
at age 62 (based on an assumption of 5% for future investment income)
shall be transferred to such Participant's Employer Non-Elective Profit
Sharing Contribution Account. Such amount shall be invested in accordance
with the Investment options permitted by the Administrative Committee
pursuant to Section 5.07.
In addition, any amounts as of December 31, 1994 which are not 100%
vested, and which would otherwise be transferred to a Suspense Account
due to a Participant's termination of employment during 1994, shall
immediately become forfeitures and available for reallocation as of
December 31, 1994, and shall also be transferred in accordance with this
Section 7.08."
3. The following Appendix A is hereby incorporated into the plan, effective
January 1, 1993:
"APPENDIX A
ARTICLE I
Section 1. This Article applies to distributions made on or after January 1,
1993. Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this 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.
Section 2. Definitions
Section 2.1. Eligible rollover distribution: An eligible rollover distribution
is any distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not include:
any distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or joint life expectancies)
of the distributee and the distributee's designated beneficiary, or for a
specified period of ten years or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of the Code; 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).
- 3 -
Section 2.2. Eligible retirement plan: An eligible retirement plan is an
individual retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the Code, or a qualified trust
described in Section 401(a) of the Code, that accepts the distributee's eligible
rollover distribution. However, in the case of an eligible rollover distribution
to the surviving spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
Section 2.3. Distributee: A distributee includes an Employee or former
Employee. In addition, the Employee's or former Employee's surviving spouse
and the Employee's or former Employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as defined in
Section 414(p) of the Code, are distributees with regard to the interest of
the spouse or former spouse.
Section 2.4. Direct rollover: A direct rollover is a payment by the Plan to the
eligible retirement plan specified by the distributee."
IN WITNESS WHEREOF, the Company has caused this amendment to be executed this
_____________ day of_________________, ________.
PLYMOUTH RUBBER COMPANY, INC.
By ____________________________________
AMENDMENT NO. 5
TO THE
PLYMOUTH RUBBER COMPANY, INC.
RETIREMENT SAVINGS AND PROFIT SHARING PLAN
AND TRUST
_______________________________________________________________________________
Pursuant to the provisions of Section 13.01 of the Retirement Savings and Profit
Sharing Plan and Trust, the Plan is hereby amended as follows:
1. Section 2.37 is amended, effective December 31, 1995, by deleting such
Section in its entirety and substituting the following therefore:
"2.37 "Forfeiture" means that portion of a Participant's Employer Contribu-
tion Account which is forfeited because of termination of employment before
full vesting and occurs on the earlier of the last day of the Plan Year in
which the Participant incurs five one year Breaks-in-Service, or the last
day of the Plan Year in which the Participant receives a lump sum distri-
bution of his vested account balance."
2. A new Section 5.07(c) is added effective December 31, 1995 following Section
5.07(b) to read as follows:
"(c) subject to the provisions of Section 10.02(h), the Administrative
Committee, with the approval of the Company, may permit Participants to
direct the investment of their Accounts maintained in the 401(k) Fund in
"Qualifying Employer Securities", as that term is defined in ERISA."
3. Section 6.07(a) is amended, effective December 31, 1995, by deleting such
Section in its entirety and substituting the following therefore:
"(a) By payment in one lump sum, provided, however that any portion of the
Participant's account which is invested in "Qualifying Employer Securities",
as that term is defined in ERISA, may be distributed in shares of such
"Qualifying Employer Securities", rather than as cash."
4. Section 7.05(1)(a) is amended, effective December 31, 1995, by deleting
such Section in its entirety and substituting the following therefore:
"1(a) If the Participant's Vested Percentage determined under Section 6.05
is less than 100%, the entire balance in his Active or Inactive Account
shall be transferred to a Suspense Account. Such transfer is deemed to
have been made on the first day of the Plan Year in which the former
Participant's employment with the Company shall have terminated.
Any insurance policies in force on the life of the Participant shall be
surrendered to the insurance company or sold to the Participant; proceeds
of such surrender or sale shall be credited to the Participant's Suspense
- 2 -
Account as received, together with any dividends, premium refunds or other
credits received from the insurance company. The Account shall remain a
Suspense Account until the former Participant's Forfeiture Date, which shall
be the earlier of the date on which the Participant receives a lump sum
distribution of his vested account balance, or the date on which the former
Participant shall have been absent from employment with the Company for five
years measured from the date of his termination of service at which time the
vested portion of his Suspense Account (his Vested Percentage multiplied by
the balance in his Suspense Account as at the end of the previous Plan Year)
shall be transferred to an Inactive Account, and the balance (non-vested)
portion of the Suspense Account shall become a forfeiture and available for
reallocation on the Valuation Date coinciding with or next following the
former Participant's Forfeiture Date."
5. Section 10.02(h) is amended, effective December 31, 1995, by deleting such
Section in its entirety and substituting the following therefore:
(h) It is expressly intended that the funds of the Trust Fund may be
invested in "Qualifying Employer Securities" as that term is defined in
ERISA, provided however, that the Trustee shall not be permitted to acquire
qualifying employer securities for the Profit Sharing Fund if immediately
after the acquisition of such securities the fair market value of all
qualifying employer securities held by the Trustee hereunder in the Profit
Sharing Fund should amount to more than 10% of the fair market value of all
the assets held in the Profit Sharing Fund.
6. Section 2.39(c) is amended, effective December 31, 1995, by deleting the
word "service" in the last sentence, and replacing such word with the
phrase "Vesting Service."
In addition, Section 2.39(c) is also amended by adding the following
sentence:
"For plan years beginning on and after December 31, 1995, Vesting Service
shall only be credited under this Section 2.39(c) up to the Second Anni-
versary of the first date of a period in which the Employee has an
Authorized Leave of Absence while receiving Worker's Compensation for
injuries sustained while employed by the Employer."
7. Section 9.09 is amended, effective December 31, 1995, by adding the
following sentence:
"If, in accordance with Sections 5.07(b) and (c), the Trustee is directed
to establish an investment fund consisting of Qualifying Employer
Securities, the Employer hereby agrees to indemnify and hold harmless the
Trustee for any claims or losses, including reasonable attorney's fees,
which arise from the investment by participants in such an investment fund."
IN WITNESS WHEREOF, the Company has caused this amendment to be executed this
_____________ day of_________________, 1995.
PLYMOUTH RUBBER COMPANY, INC.
By ____________________________________
Exhibit 5
December 27, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sir or Madam:
I have acted as counsel for Plymouth Rubber Company, Inc., (the "Company")
in connection with the Registration Statement on Form S-8 (the
"Registration Statement"), to be filed by the Company with the Securities
and Exchange Commission under the Securities Act of 1933, with respect to
the Company's Retirement Savings and Profit Sharing Plan and Trust (the
"Plan") and 100,000 shares of the Company's Class A Common Stock, $1.00
par value ("Class A Common Stock"), making available to purchase on the
open market through the Plymouth Rubber Company Class A Common Stock Fund
(the "Company Stock Fund") as one of the Investment funds in which a
Participant may direct the Plan Trustee to invest his/her Employer
Elective Contribution, Salary Reduction Contribution and Matching
Contribution under the Plans. In this capacity and in connection with the
opinion hereinafter expressed, I have reviewed the Company's Restated
Articles of Organization, its By-Laws, as amended, and other pertinent
documents, corporate records and proceedings; and I am familiar with the
additional proceedings in connection with the preparation and filing of
the Registration Statement.
Based on the foregoing and subject to the proposed additional proceedings
being taken as now contemplated by us as counsel for the Company, we are
of the opinion that:
1. The Company is a corporation duly organized and existing under the
laws of the Commonwealth of Massachusetts and in good standing under
the corporate laws thereof.
2. The shares covered by the Registration Statement and to be offered
and sold pursuant to the Prospectus (as defined in Part I of Form
S-8) constitute duly authorized capital stock of the Company and when
purchased under the Plan, will be legally and validly issued, fully
paid and nonassessable shares of Class A Common Stock of the Company.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and I further consent to the use of my name in the
Information Statement which constitutes a part of the Prospectus related
to the Registration Statement.
Very truly yours,
Deborah A. Kream
Deborah A. Kream
General Counsel
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 1, 1995 appearing on
page 23 of the Annual Report to Shareholders of Plymouth Rubber Company,
which is incorporated by reference in Plymouth Rubber Company's Annual
Report on Form 10-K for the fiscal year ended December 2, 1994. We also
consent to the incorporation by reference of our report on the Financial
Statements, which appears on page 23 of such Annual Report on Form 10-K.
Price Waterhouse LLP
Price Waterhouse LLP
Boston, Massachusetts
December 27, 1995
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 27, 1995 appearing on
page 2 of the Annual Report on Form 11-K of the Plymouth Rubber Company
Retirement Savings and Profit Sharing Plan and Trust for the fiscal year
ended December 31, 1994. We also consent to the reference to us under the
heading "Experts".
Morris & Morris, P.C.
Morris & Morris, P.C.
Needham Heights, Massachusetts
December 21, 1995
Exhibit 24.2
CERTIFICATE OF VOTE
I, Deborah A. Kream, Assistant Clerk of Plymouth Rubber Company, Inc.,
hereby certify that, pursuant to the unanimous consent of all of the
members of the Company's Board of Directors, the following vote was
unanimously adopted, to wit:
VOTED: That Maurice J. Hamilburg and Duane E. Wheeler, each
acting individually and without the other be and hereby are authorized,
for and on behalf of, and as attorney for, the Company and/or the
Company's controller and principal accounting officer and/or any other
officer of the Company, including, without limitation, the President
and/or each Vice President and/or the Treasurer and/or the Assistant
Clerk or Assistant Secretary of the Company, to sign the Registration
Statement on Form S-8 (including all post-effective amendments thereto)
which the Company proposes to file with the Securities and Exchange
Commission under the Securities Act of 1933 with respect to the
Company's Retirement Savings and Profit Sharing Plan (the "Plan") and
100,000 shares of the Company's Class A Common Stock, $1.00 par value,
to be purchased on the open market through the Plymouth Rubber Company
Class A Common Stock Fund as one of the Investment Funds under the Plan.
I further certify that the foregoing vote is still in full force and
effect and has not been altered, amended, rescinded or repealed.
IN WITNESS WHEREOF, I hereunto set my hand and seal of the Company this
27th day of December 1995.
Deborah A. Kream
Assistant Clerk
