<PAGE>
As filed with the Securities and Exchange Commission on February 24, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------------
CHANDLER INSURANCE COMPANY, LTD.
(Exact name of issuer as specified in its charter)
Cayman Islands None
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Fifth Floor
Anderson Square
P.O. Box 1854
Grand Cayman,
Cayman Islands B.W.I.
(Address of principal executive offices)
CHANDLER (U.S.A.), INC. 401(K) THRIFT PLAN
(Full Title of Plan)
----------------------------------
W. Brent LaGere Copy to: David G. McLane, Esq.
President and Chief Executive Officer Gardere & Wynne, L.L.P.
Chandler (U.S.A.), Inc. 1601 Elm Street
1010 Manvel Avenue Suite 3000
Chandler, Oklahoma 74834 Dallas, Texas 75201
(405) 258-0804 (214) 999-4607
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
Proposed maximum Proposed maximum
Title of securities to be Amount to be offering price per aggregate offering Amount of
registered registered (1) (2) share (3) price (1)(3) registration fee (3)
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------
Common Stock, $1.67 par value 500,000 shares $7.69 per share $3,754,183.00 $1,044.00
=======================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) The shares of Common Stock, $1.67 par value ("Common Stock"), of Chandler
Insurance Company, Ltd., a Cayman Islands corporation (the "Registrant"),
being registered hereby consist of shares which may be acquired by the
Trustee pursuant to the Chandler (U.S.A.), Inc. 401(k) Thrift Plan (the
"Plan") for the accounts of participants.
(3) Calculated pursuant to Rule 457(h), based on the average of the high and
low prices for the Common Stock on February 19, 1999, as quoted in The
NASDAQ Stock Market.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance with
Rule 428 under the Securities Act of 1933, as amended, and the Note to Part
I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated by reference in this registration
statement.
(1) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998.
(4) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998.
(5) The description of the Registrant's Common Stock contained in the
section titled "Description of Securities" contained in the Prospectus
filed with the Securities and Exchange Commission on February 20, 1990
as part of the Registrant's Registration Statement on Form S-2
(Registration No. 33-33540).
In addition, all documents subsequently filed by the Registrant or the
Chandler (U.S.A.), Inc. 401(k) Thrift Plan pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents.
Item 6. Indemnification of Directors and Officers.
The Registrant's Articles of Association provide that the Registrant shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Registrant) by reason of the fact that he is or was a director,
officer, employee or agent of the Registrant, or is or was serving at the
request of the Registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, if he acted in good faith and in a manner
II-1
<PAGE>
he reasonably believed to be in or not opposed to the best interests of the
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Registrant and, with respect to any criminal action or proceeding, that he had
reasonable cause to believe that his conduct was unlawful.
Item 8. Exhibits.
* 4.1 Chandler (U.S.A.), Inc. 401(k) Thrift Plan Adoption Agreement,
effective November 1, 1998, which includes therewith the Prototype
401(k) Plan.
* 5.1 Internal Revenue Service determination letter, dated August 12, 1993.
* 23.1 Consent of Deloitte & Touche.
* 24.1 Power of Attorney (set forth on the signature pages of the
registration statement).
- -----------------------
* filed herewith.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, 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 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 this
registration statement or any material change to such
information in the registration statement;
provided, however, that the undertakings set forth in paragraphs (1)(i) and
-------- -------
(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
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.
II-2
<PAGE>
The undersigned Registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and each filing of the annual report of the
Plan pursuant to Section 15(d) of the Securities and 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 by them, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-3
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
--------------
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Chandler, State of Oklahoma, on the nineteenth
day of February, 1999.
CHANDLER INSURANCE COMPANY, LTD.
(Registrant)
By: /s/ W. Brent LaGere
-----------------------------------------------
W. Brent LaGere
Chairman of the Board and
Chief Executive Officer
Each person whose signature appears below hereby constitutes and appoints
W. Brent LaGere and Mark T. Paden and each of them (with full power in each of
them to act alone), his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign and to file with the Securities and
Exchange Commission and the securities regulatory authorities of the several
states registration statements, any amendment or post-effective amendments or
any and all other documents in connection therewith, in connection with the
registration under the Securities Act of 1933, as amended, or the registration
or qualification under any applicable state securities laws or regulations, of
interests in the Plan and shares of Common Stock issuable pursuant to such Plan,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, or either of them, or their or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated below on the nineteenth day of February, 1999.
Name Title
---- -----
/s/ Larry A. Davis Director
- ------------------------------
Larry A. Davis
/s/ Richard L. Evans Director
- ------------------------------
Richard L. Evans
Director
- ------------------------------
Norman E. Harned
II-4
<PAGE>
/s/ Mark C. Hart Vice President-Accounting and
- ------------------------------ Treasurer (principal accounting
Mark C. Hart officer)
/s/ James M. Jacoby Director
- ------------------------------
James M. Jacoby
/s/ W. Brent LaGere Chairman of the Board of Directors,
- ------------------------------ Chief Executive Officer, and
W. Brent LaGere Director (principal executive
officer)
Director
- ------------------------------
Ronald W. Lech, Sr.
Director
- ------------------------------
Paul A. Maestri
Director
- ------------------------------
M.J. Moroun
/s/ Mark T. Paden Executive Vice President,
- ------------------------------ Chief Financial Officer and
Mark T. Paden Director (principal financial
officer)
/s/ Robert L. Rice Director
- ------------------------------
Robert L. Rice
/s/ Brenda B. Watson Director
- ------------------------------
Brenda B. Watson
II-5
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
--------
Trustee has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Salem, State of
New Hampshire, on the ninth day of February, 1999.
SCUDDER TRUST COMPANY, TRUSTEE FOR THE
CHANDLER (U.S.A.), INC. 401(k) THRIFT PLAN
By: /s/ Alexander T. Dike
------------------------------------------------
Print Name: Alexander T. Dike
----------------------------------------
Title: Vice President
---------------------------------------------
II-6
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------ ------- ------------
* 4.1 Chandler (U.S.A.), Inc. 401(k) Thrift Plan Adoption Agreement,
effective November 1, 1998, which includes therewith the Prototype
401(k) Plan.
* 5.1 Internal Revenue Service determination letter, dated August 12, 1993.
* 23.1 Consent of Deloitte & Touche.
* 24.1 Power of Attorney (set forth on the signature pages of the
registration statement).
- ----------------------------
* filed herewith
II-7
<PAGE>
EXHIBIT 4.1
Plan number 002
(nonstandardized)
401 (k) PLAN
Adoption Agreement
The undersigned (the "Employer") establishes or amends the CHANDLER
(U.S.A.), INC. 401(K) THRIFT PLAN by completing this Adoption Agreement,
adopting or amending the Plan in the form of the Prototype 401(k) Plan attached.
I. ELIGIBILITY
A. To become a Participant who is eligible to make a salary reduction
election and/or to receive allocations of Deferred Cash Contributions,
an Employee need not complete any period of Service
[X] or, if this box is checked, an Employee must complete:
[X] (1) 1 Year of Service (insert no more than "1").
[_] (2) ______ consecutive months of service (insert no more
than "12"; no minimum number of hours can be required).
B. An Employee who meets the above requirements for eligibility to make a
salary reduction election and/or to receive allocations of Deferred
Cash Contributions shall become such an eligible Participant on the
first day the requirements are met
[_] or, if this box is checked, on the first day of the next month
[_] or, if this box is checked, on the first day of the next pay
period
[_] or, if this box is checked, on the first day of the next quarter
of the Plan Year.
[X] or, if this box is checked, on the first day of the next Plan
Year, or the first day of the seventh month of the Plan Year,
whichever is earlier.
C. To become a Participant who is eligible to receive allocations of
Employer Matching Contributions and/or Employer Profit Sharing
Contributions and to make Nondeductible Voluntary Contributions (if
permitted by Section XIII), an Employee must complete 1 Year of
Service
[_] or, if this box is checked, an Employee must complete _____
Year(s) of Service, (insert "2" or less; select more than 1 only
if the Employer selects full and immediate vesting in Section
VI.A. and B. below; insert "0" for no waiting period).
D. An Employee who meets the above requirements for eligibility to
receive allocations of Employer Matching Contributions and/or Employer
Profit Sharing Contributions and to make Nondeductible Voluntary
Contributions (if permitted by Section XIII) shall become such an
eligible Participant on the first day the requirements are met
[_] or, if this box is checked, on the first day of the next month
1
<PAGE>
[_] or, if this box is checked, on the first day of the next pay
period
[_] or, if this box is checked, on the first day of the next quarter
of the Plan Year
[X] or, if this box is checked, on the first day of the next Plan
Year, or the first day of the seventh month of the Plan Year,
whichever is earlier.
E. The number of Hours of Service required to have a Year of Service is
1000
[_] or, if this box is checked, _____ (insert less than "1000").
F. A Year of Service (for the purpose of eligibility) shall be measured
on the 12-consecutive-month period beginning on the Employee's initial
date of employment and reemployment or an anniversary of that date
[X] or, if this box is checked, on the 12-consecutive-month period
beginning on the Employee's initial date of employment or
reemployment and each Plan Year commencing thereafter.
G. For purposes of calculating periods of Service, the Employer shall
calculate periods of Service based on an actual count of the Hours of
Service an Employee performs
[_] or, if this box is checked, an Employee shall be credited with 45
Hours of Service for each week during which the Employee performs
an actual Hour of Service.
H. Before an Employee may become a Participant, the Employee need not
attain any minimum age
[X] or, if this box is checked, an Employee must be at least 21(
insert "21" or less) years of age.
I. All Employees are entitled to be Participants except (one or more may
be selected):
[X] Non-resident aliens who receive no earned income from the
Employer which constitutes income from sources within the United
States;
[X] Individuals covered by a collective bargaining contract which
meets the requirements specified in the Plan;
[_] Salaried Employees;
[_] Hourly-paid Employees;
[_] Leased Employees;
[_] Piece-rate Employees;
[_] Employees paid by commission;
[_] Employees covered by another retirement plan to which the
Employer is required to contribute;
2
<PAGE>
[_] Employees of the following subsidiaries or affiliates:
_________________________________________
_________________________________________
[_] Employees in the following non-discriminatory classification:
__________________________________________
__________________________________________
Note: If Employees are excluded from the Plan under one or
more of the classifications above (not including the first two
classifications) the Plan must satisfy, on a continuing basis,
the coverage, nondiscrimination, and participation requirements
of Code Sections 410(b), 401(a)(4), and 401(a)(26).
II. SALARY REDUCTIONS AND DEFERRED CASH CONTRIBUTIONS
For each Plan Year, the Employer will make the following contribution to
the Trust on behalf of each eligible Participant:
A. [X] A Salary Reduction Contribution equal to the portion of the
Compensation otherwise payable to the Participant that the
Participant has elected to contribute to the Trust. The
Participant's election shall specify the portion of the
Compensation to be contributed, which amount shall be not less
than 0% (insert "0" or more, but not more than the next chosen
number) and not more than 15% (insert "20" or less, but not less
than the previously chosen number) of the Participant's
Compensation for the Plan Year.
B. [_] A Deferred Cash Contribution equal to that portion of the
Deferred Cash Allocation which the eligible Participant has not
elected to receive in cash. The Deferred Cash Allocation for this
purpose shall be an amount equal to the percentage of the
eligible Participant's Compensation as is determined by the
Employer for each Plan Year (which percentage shall be the same
for each Participant)
[_] or, if this box is checked, ___% of the eligible Participant's
Compensation.
C. A Participant shall be entitled to a Deferred Cash Allocation and a
Deferred Cash Contribution for a Plan Year if the Participant receives
Compensation from the Employer during the Plan Year
[_] and, if this box is checked, the Participant is employed on the
last day of the Plan Year and is credited with at least _____
---
(insert "1000" or less) Hours of Service during the Plan Year, or
the Participant retires, dies or becomes disabled during the Plan
Year.
III. PROFIT SHARING CONTRIBUTIONS
For each Plan Year, the Employer will not make an Employer Profit Sharing
Contribution
[X] or, if this box is checked, the Employer will make an Employer
Profit Sharing Contribution.
3
<PAGE>
A. [_] Fixed Formula
For each Plan Year, the Employer will make an Employer Profit
Sharing Contribution to the Trust in an amount equal to ___% (not
to exceed 15%) of each such eligible Participant's Compensation.
A Participant shall be entitled to an allocation of the fixed
Employer Profit Sharing Contribution for a Plan Year if the
Participant receives Compensation from the Employer during a Plan
Year
[_] and, if this box is checked, the Participant is employed on
the last day of the Plan Year, or the Participant retires,
dies or becomes disabled during the Plan Year.
[_] and, if this box is checked, the Participant is credited
with at least _______(insert "1000"or less) Hours of Service
during the Plan Year, or the Participant retires, dies or
becomes disabled during the Plan Year.
B. [X] Discretionary Formula
For each Plan Year, the Employer will make an Employer Profit
Sharing Contribution to the Trust equal to the amount, if any,
determined by the Employer for such Plan Year.
A Participant shall be entitled to an allocation of the
discretionary Employer Profit Sharing Contribution for a Plan
Year if the Participant receives Compensation from the Employer
during the Plan Year
[X] and, if this box is checked, the Participant is employed on
the last day of the Plan Year, or the Participant retires,
dies or becomes disabled during the Plan Year.
[X] and, if this box is checked, the Participant is credited
with at least 1,000 (insert "1000" or less) Hours of Service
during the Plan Year, or the Participant retires, dies or
becomes disabled during the Plan Year.
C. Employer Profit Sharing Contributions will be allocated to eligible
Participants in the ratio that each eligible Participant's
Compensation for the Plan Year bears to the total Compensation paid to
all eligible Participants for the Plan Year, or
[X] if this box is checked, on an integrated basis in accordance
with the provisions of Section 4.03(b)(ii) of the Plan.
The Integration Level for a Plan Year will be the Social Security
Wage Base for such Plan Year
[_] or, if this box is checked, $________ (not in excess of the
Social Security Wage Base).
[_] or, if this box is checked, ______% of the Social Security
Wage Base (not in excess of 100%).
4
<PAGE>
The Integration Rate for a Plan Year will be the Maximum
Disparity Rate for such Plan Year.
[_] or if this box is checked, _____% (not in excess of the
Maximum Disparity Rate).
Note: An Employer may elect to integrate the Plan with Social
Security only if the Employer does not maintain another
qualified retirement plan integrated with Social Security.
IV. MATCHING CONTRIBUTIONS
A. For each Plan Year, the Employer will not make an Employer Matching
Contribution
[X] or, if this box is checked, the Employer will make an Employer
Matching Contribution on behalf of each eligible Participant who,
pursuant to Section VI below, is eligible to receive an
allocation; such contribution shall be equal to the percentage
indicated in (B) below of aggregate:
[X] (1) Salary Reduction Contributions
[_] (2) Deferred Cash Contributions
[_] (3) Nondeductible Voluntary Contributions
A Participant shall be entitled to an allocation of the Employer
Matching Contribution for a Plan Year if the Participant makes
contributions indicated above for the Plan Year
[_] and, if this box is checked, the Participant is employed by
the Employer on the last day of the Plan Year, or the
Participant retires, dies or becomes disabled during the
Plan Year.
[_] and, if this box is checked, the Participant is credited
with at least _____ Hours of Service (insert "1000" or less)
during the Plan Year, or the Participant retires, dies or
becomes disabled during the Plan
B. The Employer Matching Contribution made on behalf of each eligible
Participant shall be equal to a percentage of the Participant's
contributions selected in (A) above; which percentage shall be equal
to:
[_] (1) _____%
[_] (2) the sum of _____% of the first _____% of the Participant's
Compensation, plus _____% of the next _____% of the
Participant's Compensation.
[_] (3) the sum of _____% of such contributions up to ___________
dollars, plus _____% of such contributions which are in
excess of __________ dollars.
[X] (4) the percentage voted or declared by the Employer for the
Plan Year.
NOTE: If (2) or (3) above are completed with the second matching
percentage (following the word "plus") greater than the first
matching percentage (following the words "the sum of"), the IRS
may deem the plan to be discriminatory under Code Section
401(a)(4).
5
<PAGE>
C. The Employer Matching Contribution shall be limited as follows:
[_] (1) A Participant's aggregate contributions indicated in (A)
above for a Plan Year in excess of _____% of the
Participant's Compensation shall not be matched.
[_] (2) A Participant's aggregate contributions indicated in (A)
above for a Plan Year in excess of _______dollars shall not
be matched.
[_] (3) The Employer Matching Contribution for a Participant for a
Plan Year shall not exceed ____% of the Participant's
Compensation or _________ dollars.
V. QUALIFIED NONELECTIVE CONTRIBUTIONS AND QUALIFIED MATCHING CONTRIBUTIONS
For each Plan Year, the Employer will not make a Qualified Nonelective
Contribution or a Qualified Matching Contribution
[X] or, if this box is checked, in any Plan Year in which the Plan
cannot satisfy one or more of the non-discrimination tests set
forth in Article VI, the Employer may make a Qualified
Nonelective Contribution and/or Qualified Matching Contribution
to the Trust in an amount sufficient to enable the Plan to
satisfy such tests.
VI. VESTING OF EMPLOYER CONTRIBUTIONS
NOTE: Make selections in Section VI. only if Employer Profit
Sharing Contributions and/or Employer Matching Contributions have
been selected.
A. Employer Profit Sharing Contributions shall be immediately vested and
nonforfeitable
[_] (1) or, if this box is checked, vested at the rate specified in
Column 1 below.
[_] (2) or, if this box is checked, vested at the rate specified in
Column 2 below.
[_] (3) or, if this box is checked, vested at the rate specified in
Column 3 below.
[X] (4) or, if this box is checked, vested at the rate specified in
Column 4 below which rate shall, if a graded rate is
specified, be at least as rapid as the rate specified in
Column 2 below or, if a cliff rate is specified, be at least
as rapid as the rate specified in Column 3 below.
<TABLE>
<CAPTION>
Column 1 Column 2 Column 3 Column 4
Vesting Top-Heavy 7-Year 5-Year Percentage
Years Vesting Rate Graded Rate Cliff Rate Elected
------- ------------ ----------- ---------- ----------
<S> <C> <C> <C> <C>
1 0% 0% 0% 20%
2 20% 0% 0% 40%
3 40% 20% 0% 60%
4 60% 40% 0% 80%
5 80% 60% 100% 100%
6 100% 80% 100% ______
7 100% 100% 100% ______
</TABLE>
6
<PAGE>
NOTE: Employer Profit Sharing Contributions must be immediately
vested and nonforfeitable if the Employer makes the election in
Section I. C. above and requires Employees to complete more than
one Year of Service.
B. Employer Matching Contributions shall be immediately vested and
nonforfeitable
[_] (1) or, if this box is checked, vested at the rate specified in
Column 1 below
[_] (2) or, if this box is checked, vested at the rate specified in
Column 2 below
[_] (3) or, if this box is checked, vested at the rate specified in
Column 3 below
[X] (4) or, if this box is checked, vested at the rate specified in
Column 4 below which rate shall, if a graded rate is
specified, be at least as rapid as the rate specified in
Column 2 below, or, if a cliff rate is specified, be at
least as rapid as the rate specified in Column 3 below.
<TABLE>
<CAPTION>
Column 1 Column 2 Column 3 Column 4
Vesting Top-Heavy 7-Year 5-Year Percentage
Years Vesting Rate Graded Rate Cliff Rate Elected
------- ------------ ----------- ---------- ----------
<S> <C> <C> <C> <C>
1 0% 0% 0% 20%
2 20% 0% 0% 40%
3 40% 20% 0% 60%
4 60% 40% 0% 80%
5 80% 60% 100% 100%
6 100% 80% 100% ______
7 100% 100% 100% ______
</TABLE>
NOTE: Employer Profit Sharing Contributions must be immediately
vested and nonforfeitable if the Employer makes the election in
Section I. C. above and requires Employees to complete more than
one Year of Service.
C. The following Service will not be included in determining Vesting
Years unless checked below:
[_] (1) Service before the Employer maintained this Plan or a
predecessor plan.
[_] (2) Service before the first Plan Year during which a
Participant attained age 18.
[_] (3) Service before the first Plan Year to which ERISA is
applicable, if this Plan is a continuation of an earlier
plan which would have disregarded such service.
D. Vesting Years and One-Year Breaks in Service for the purpose of
vesting shall be measured on the 12-consecutive-month period beginning
on the Participant's initial date of employment or an anniversary of
that date
[X] or, if this box is checked, on the Plan Year.
E. The Participant will have a Vesting Year only if the Participant is
credited with at least 1000 Hours of Service
7
<PAGE>
[_] or, if this box is checked, _________ (insert less than "1000").
F. If the Plan becomes a Top-Heavy Plan but thereafter ceases to be a
Top-Heavy Plan, the vesting schedule in effect while the Plan was a
Top-Heavy Plan will continue to be in effect for all existing and
future Participants
[_] or, if this box is checked, the vesting schedule selected in
Sections VI.A. or B. above, as the case may be, will apply for
all Plan Years during which the Plan is not a Top-Heavy Plan.
VII. SPECIAL RULES FOR ALLOCATIONS OF EMPLOYER CONTRIBUTIONS
A. An otherwise eligible Participant who is a Highly Compensated Employee
for a given Plan Year shall receive an allocation of any Employer
Profit Sharing Contributions made pursuant to Section III. above and
any reallocated forfeitures
[_] or, if this box is checked, shall not receive an allocation of
any Employer Profit Sharing Contributions made pursuant to
Section III. above and any reallocated forfeitures.
B. An otherwise eligible Participant who is a Highly Compensated Employee
for a given Plan Year shall receive an allocation of any Employer
Matching Contributions made pursuant to Section III.B. above and any
reallocated forfeitures
[_] or, if this box is checked, shall not receive an allocation of
any Employer Matching Contributions made pursuant to Section IV.
above and any reallocated forfeitures.
C. Any minimum Top-Heavy allocations will be made first from this Plan
[_] or, if this box is checked, first from the ______________Plan
(insert name of another qualified retirement plan maintained by
the Employer).
D. For any Plan Year for which the Plan is a Top-Heavy Plan, minimum
allocations shall be made in accordance with the provisions of Section
23.03
[_] or, if this box is checked, because the Employer maintains at
least one other qualified retirement plan, minimum allocations
shall be made at the following rate of Compensation: ____%
(insert "3" or more).
Note: Only consider checking the box in Section VII.D. if the
Employer sponsors two or more tax-qualified retirement
plans and either (1) one of those plans is a defined
benefit plan or (2) the plans do not have identical
eligibility requirements.
VIII. REALLOCATION OF FORFEITURES
Any forfeiture which results from a Participant's termination of
Service shall be reallocated as if it were a contribution of the same
type (i.e., Employer Profit Sharing Contribution or Employer Matching
Contribution) for the Plan Year following the Plan Year in which such
forfeiture occurs
8
<PAGE>
[_] or, if this box is checked, such forfeiture shall be applied to
reduce the Employer's obligation to make Employer Matching
Contributions and fixed Profit Sharing Contributions for the Plan
Year during which the forfeiture occurs.
IX. COMPENSATION
A. Compensation shall be defined as follows for the purposes designated
below:
[_] (1) W-2 Compensation. Compensation as reported on Form W-2 and
---------------
as more fully defined in Section 2.09(a)(i) of the Plan.
The above definition of Compensation shall apply for the
purposes of allocating or determining:
[_] Salary Reduction Contributions
[_] Deferred Cash Contributions
[_] Employer Profit Sharing Contributions
[_] Employer Matching Contributions
[_] Non-discrimination tests contained in Article VI
of the Plan.
[_] Section 415 Limitations on Allocations
[X] (2) 415 Safe Harbor Compensation. "Compensation" as defined in
----------------------------
Section 5.05(b)(ii) of this Plan.
The above definition of Compensation shall apply for the
purposes of allocating or determining:
[X] Salary Reduction Contributions
[_] Deferred Cash Contributions
[X] Employer Profit Sharing Contributions
[X] Employer Matching Contributions
[X] Non-discrimination tests contained in Article VI
of the Plan.
[X] Section 415 Limitations on Allocations
[_] (3) Safe Harbor Alternative Definition. 415 Safe Harbor
----------------------------------
Compensation, reduced by all of the following items (even if
includible in gross income): reimbursement or other expense
allowances, fringe benefits (cash and non-cash), moving
expenses, deferred compensation, and welfare benefits.
The above definition of Compensation shall apply for the
purposes of allocating or determining:
[_] Salary Reduction Contributions
[_] Deferred Cash Contributions
[_] Employer Profit Sharing Contributions
[_] Employer Matching Contributions
[_] Non-discrimination tests contained in Article VI
of the Plan.
[_] Section 415 Limitations on Allocations
[_] (4)a. Non Safe Harbor Alternative Definition. Compensation as
--------------------------------------
indicated above but excluding:
9
<PAGE>
[_] overtime pay, premiums for shift differential and
call-in premiums;
[_] bonuses;
[_] commissions;
[_] such other items as follows:______________________
The above definition of Compensation shall apply for the
purposes of allocating or determining
[_] Salary Reduction Contributions
[_] Deferred Cash Contributions
[_] Employer Profit Sharing Contributions (non-integrated
formula only)
[_] Employer Matching Contributions.
b. Non Safe Harbor Alternative Definition. Compensation as
--------------------------------------
indicated above but excluding:
[_] overtime pay, premiums for shift differential and call-
in premium bonuses;
[_] commissions;
[_] such other items as follows:______________________
The above definition of Compensation shall apply for the
purposes of allocating or determining
[_] Salary Reduction Contributions
[_] Deferred Cash Contributions
[_] Employer Profit Sharing Contributions (non-integrated
formula only)
[_] Employer Matching Contributions.
NOTE: If the Employer elects an alternative definition of
Compensation by making a reduction pursuant to this
IX. A.4 for purposes of allocating Employer Profit
Sharing Contributions, then such alternative
definition must be tested by the Administrator to show
that it meets the nondiscrimination requirements of
Section 414(s) (3) of the Code.
B. Compensation
[X] shall include [_] shall not include
A Participant's Salary Reduction Contributions, Deferred Cash
Contributions (which the Participant did not elect to take in cash)
and other amounts which are excluded from an Employee's gross income
pursuant to Code Sections 125, 402(g)(3), 402(h)(1)(B), and 403(b).
The above rule shall apply for the purposes of allocating or
determining
[X] Employer Profit Sharing Contributions
[X] Employer Matching Contributions
[X] Non-discrimination tests contained in Article VI of the
Plan.
10
<PAGE>
C. Compensation
[_] shall include [X] shall not include
amounts paid during that portion of the Plan Year during which the
Employee is not eligible to participate in the Plan with respect to
the allocation of Employer Profit Sharing Contributions and/or
Employer Matching Contributions.
The above rule shall apply for the purposes of allocating or applying
[X] Employer Profit Sharing Contributions
[X] Employer Matching Contributions
[_] Section 401(m) non-discrimination test contained in Article VI of
the Plan.
D. Compensation for purposes of applying the Section 401(k) non-
discrimination test contained in Article VI of the Plan.
[X] shall include [_] shall not include
amounts paid during that portion of the Plan Year during which the
Employee is not eligible to make a salary reduction election and/or to
receive allocations of Deferred Cash Contributions.
NOTE: Participant's Salary Reduction Contributions, Deferred
Cash Contributions (which the Participants do not elect to
take in cash) and other amounts which are excluded from an
Employee's gross income pursuant to Code Sections 125,
402(a)(8), 402(h)(1)(B), and 403(b) are not considered
compensation for purposes of determining the Employer's
permissible deduction under Code Section 404 or for
purposes of applying the limitations on allocations to
Participants' Accounts under Article V of the Plan and
Code Section 415.
X. NORMAL RETIREMENT DATE
NOTE: NORMAL RETIREMENT AGE IS THE LATER OF THE DATE THE PARTICIPANT ATTAINS AGE
65 YEARS OF AGE OR FIVE YEAR ANNIVERSARY OF THE FIRST DAY OF THE PLAN YEAR IN
WHICH THE PARTICIPANT COMMENCED PARTICIPATION IN THE PLAN.
A Participant's Normal Retirement Date shall be age 59 1/2
[_] or, if this box is checked, age ____ (insert more than 59 but not
more than 65).
XI. IN-SERVICE HARDSHIP WITHDRAWALS
A. In-service withdrawals by a Participant from his or her Employer
Profit Sharing Contribution Account shall not be permitted unless the
Participant has attained his or her Normal Retirement Date
[_] or, if this box is checked, a Participant who has not attained his
or her Normal Retirement Date and who is fully vested in his or
her Employer Profit Sharing Contribution Account may request an
in-service withdrawal from such account in case of hardship.
B. In-service withdrawals by a Participant from his or her Employer
Matching Contribution Account shall not be permitted unless the
Participant has attained his or her Normal Retirement Date
11
<PAGE>
[_] or, if this box is checked, a Participant who has not attained his
or her Normal Retirement Date and who is fully vested in his or
her Employer Matching Contribution Account may request an in-
service withdrawal from such account in case of hardship.
C. In-service withdrawals by a Participant from his or her Salary
Reduction Contribution Account, Deferred Cash Contribution Account and
Qualified Nonelective Contribution Account shall not be permitted
unless the Participant has attained his or her Normal Retirement Date
[X] or, if this box is checked, a Participant who has not attained
his-or her -Normal Retirement Date may request an in-service
withdrawal from his or her Salary Reduction Contribution Account
and Deferred Cash Contribution Account in case of hardship.
XII. DISTRIBUTION OPTIONS
NOTE: JOINT & SURVIVOR ANNUITY (50%, 75% & 100% FOR MARRIED PARTICIPANTS) AND
LIFE ANNUITY FOR SINGLE PARTICIPANTS WILL BE AVAILABLE TO CURRENT AND FUTURE
PARTICIPANTS.
A Participant (or Beneficiary to the extent permitted under the Plan) may
elect to receive a distribution of his or her vested Account balance in
one or more of the following optional forms:
[_] (1) Distribution of the Participant's entire vested Account
balance in monthly installments over a period equal to the
shorter of 120 months or the Applicable Life Expectancy.
[X] (2) Distribution of the Participant's entire vested Account
balance in a lump sum.
[X] (3) Distribution of the Participant's entire vested Account
balance in installment payments of a fixed amount, such
payments to be made until exhaustion of the Participant's
vested Account balance.
[X] (4) Distribution in kind.
[_] (5) Any reasonable combination of the foregoing or any reasonable
time or manner of distribution within the above-stated
limitations as elected by the Participant (or Beneficiary to
the extent permitted under the Plan).
XIII. NONDEDUCTIBLE VOLUNTARY CONTRIBUTIONS
Nondeductible Voluntary Contributions by a Participant are not
permitted
[_] or, if this box is checked, are permitted.
XIV. INVESTMENT
Investment decisions with respect to all contribution sources shall be
made by the Participant
[_] or, if this box is checked, by the Administrator with respect to all
contribution sources.
[_] or, if this box is checked, by the Administrator with respect to
Employer Matching Contributions, Employer Profit Sharing
Contributions, Qualified Nonelective Contributions and Qualified
Matching Contributions.
12
<PAGE>
XV. LOANS
Loans to a Participant are not permitted
[X] or, if this box is checked, are permitted.
Note: If you elect to permit loans to Participants, you must designate a
Loan Trustee in Section XX. Scudder Trust Company will not act as
Loan Trustee unless it expressly agrees to act as such.
XVI. EFFECTIVE DATE
The Effective Date of this Plan or Amendment shall be the first day of the
Employer's fiscal year during which the Plan is adopted or amended
[X] or, if this box is checked, 11/1/98 .
------------
(insert date)
XVII. PLAN AND LIMITATION YEARS
A. The Plan Year shall be the same as the fiscal year of the Employer
[X] or, if this box is checked, shall end on the last day of the
month of December.
B. The Limitation Year shall be the Plan Year
[_] or, if this box is checked, shall be the 12-consecutive month
period ending on the last day of the month of ________________.
XVIII.AMENDMENT
Execution of this Adoption Agreement is not an amendment to an existing
plan
[X] or, if this box is checked, is an amendment to an existing plan
XIX. CALCULATION OF TOP HEAVY RATIO
If the Employer has maintained, now or subsequently maintains one or more
defined benefit plans, then, for purposes of calculating the Top-Heavy
Ratio, Present Value shall be based upon the interest rate and mortality
table employed as of the date in question for such purpose as specified in
the most recently adopted or amended defined benefit plan maintained by
the Employer
[_] or, if this box is checked, the interest rate and mortality table
specified below.
Interest Rate: _______________%
Mortality Table: _____________
XX. APPOINTMENT OF TRUSTEES
The Employer hereby designates the following Trustees:
13
<PAGE>
A. Scudder Trust Company shall act as Trustee under this Trust with
respect to all assets of Plan except as provided below.
B. _____________________ shall act as Trustee with respect to
_________________.
C. _____________________ shall act as Trustee with respect to
_________________.
D. Scudder Trust Company shall act as Loan Trustee.
XXI. LIMITATIONS ON ALLOCATIONS
This section applies only for an Employer who maintains or has ever
maintained: another qualified retirement plan (other than a plan which the
Employer amended into the Prototype 401(k) Plan) in which any Participant
in this Plan is or was a participant or could possibly become a
participant, a welfare benefit fund (as defined in Code Section 419(e)),
or an individual medical account (as defined in Code Section 415(l)(2))
under which amounts are treated as annual additions with respect to any
Participant in this Plan.
A. If the Participant is covered under another qualified defined
contribution plan maintained by the Employer, other than a master or
prototype plan, the provisions of Article V of the Plan will apply as
if the other plan were a master or prototype plan
[_] or, if this box is checked, the attached rider describes the
method by which the plans will limit total Annual Additions to
the Maximum Permissible Amount described in Section 5.05 of the
Plan and reduce any excess amount in a manner that precludes
Employer discretion.
B. If the Participant is, or has ever been, a participant in a defined
benefit plan maintained by the Employer, the provisions of Article V
of the Plan will apply
[_] or, if this box is checked, the attached rider describes the
method by which the plans involved will satisfy the 1.0
limitation described in Section 5.04 of the Plan and reduce any
excess amount in a manner that precludes Employer discretion.
XXII. SIGNATURES
The Employer (1) covenants and agrees that whenever a Participant makes a
contribution the Employer shall ascertain that the Participant has received a
copy of the current prospectus relating to any Designated Investment or other
investment in which such contribution is to be invested where required by any
state or federal law, and (2) by remitting any contribution to the Trustee the
Employer shall be deemed to represent that the Employer has received a current
prospectus of any investment in which it is to be invested where required by any
state or federal law.
An Employer adopting this Plan may not rely on the opinion letter issued
by the National Office of the Internal Revenue Service as evidence that this
Plan is qualified under Code Section 401. An Employer who wishes to obtain such
reliance should apply for a determination letter from the appropriate Key
District Director of the Internal Revenue Service to obtain reliance that the
plan is qualified.
This Adoption Agreement may be used in conjunction with basic plan
document #04. Failure to properly complete this Adoption Agreement may result in
the disqualification of the Plan.
14
<PAGE>
All inquiries regarding this Plan should be made to Kemper Distributors,
Inc. c/o Scudder Investor Services, Inc. by calling 1-877-536-7827, or by
writing to Kemper Distributors, Inc. c/o Scudder Investor Services, Inc., Group
Retirement Plans Department, Two International Place, Boston, MA, 02110. Scudder
Investor Services, Inc. will notify each adopting Employer of any amendments
made to, or of the discontinuance or abandonment of, this Plan.
Trustee(s) Signature(s):
SCUDDER TRUST COMPANY
/s/ Larry McMillon By: /s/ Karen Gill
- ------------------------------- ----------------------------
Signature of Employer Asst. Vice President
Chandler (U.S.A.), Inc.
- ------------------------------- _______________________________
Print Name of Employer Trustee
1010 Manvel Avenue
- ------------------------------- _______________________________
Street Address Trustee
Chandler, OK 74834
- ------------------------------- _______________________________
City State Zip Loan Trustee
73-1325906
- -------------------------------
Employer Tax Identification Number
1-1 thru 12-31
- -------------------------------
Employer's Fiscal Year
(405) 258-4224
- -------------------------------
Employer's Telephone Number
September 3, 1998 /s/ Robert A. Rudell
- ------------------------------- _______________________________
Date Accepted by Scudder Investor
Services, Inc.
302
- -------------------------------
Expected number of Participants
15
<PAGE>
Basic Plan Document 04
----------------------
PROTOTYPE 401(k) PLAN
ARTICLE I. INTRODUCTION
------------
The Employer has established this Plan (the "Plan"), consisting of the
Adoption Agreement and the following provisions (the "Prototype 401(k) Plan")
for the exclusive benefit of Participants and their Beneficiaries.
ARTICLE II. DEFINITIONS
-----------
Where the following words and phrases appear in this Plan, they shall have
the respective meanings set forth below, unless their context clearly indicates
a contrary meaning. The singular herein shall include the plural, and vice
versa, and the masculine gender shall include the feminine gender, and vice
versa, where the context requires.
2.01 "Account" shall mean the Trust assets held by the Trustee for the
-------
benefit of a Participant, which shall be the sum of the Participant's Salary
Reduction Contribution Account, Deferred Cash Contribution Account, Employer
Profit Sharing Contribution Account, Employer Matching Contribution Account,
Nondeductible Voluntary Contribution Account, Deductible Voluntary Contribution
Account, Rollover Account and Qualified Nonelective Contribution Account and any
transfer account established pursuant to Section 4.07 hereof with respect to
funds transferred to the Trust on the Participant's behalf.
2.02 "Act" shall mean the Employee Retirement Income Security Act of 1974,
---
as amended.
2.03 "Administrator" shall mean the person or persons specified in Section
-------------
14.01 hereof.
<PAGE>
2.04 "Adoption Agreement" shall mean the agreement by which the Employer
------------------
has most recently adopted or amended the Plan.
2.05 "Annuity Starting Date" shall mean the first day of the first period
---------------------
for which an amount is paid to a Participant (other than loan(s) or in-service
withdrawal(s)) from the Trust (whether or not such distributions are received in
the form of an annuity).
2.06 "Applicable Life Expectancy" shall mean the life expectancy of the
--------------------------
Participant or the joint life and last survivor expectancy of the Participant
and Beneficiary calculated using the return multiples specified in Section 1.72-
9 of the Treasury Regulations. Unless the Participant elects otherwise, life
expectancies determined as of the First Required Distribution Year shall be
calculated using the attained age of the Participant and, if applicable, the
Beneficiary as of his or her birth date in the First Required Distribution Year.
Life expectancies for subsequent calendar years shall be determined by reducing
the life expectancy determined as of the First Required Distribution Year by one
for each calendar year that has elapsed; provided, however, that the Participant
may elect prior to April 1 of the year immediately following his or her First
Required Distribution Year to have his or her life expectancy and, if the
Participant's Beneficiary is his or her Spouse, the life expectancy of such
Beneficiary, recalculated annually. If a Participant elects recalculation, life
expectancies for each subsequent calendar year shall be determined using the
attained ages of the Participant and, if applicable, his or her Beneficiary, as
of their respective birth dates in such calendar year.
With respect to a Beneficiary who is entitled to receive a distribution
after the death of a Participant, "Applicable Life Expectancy" shall mean the
life expectancy of the Beneficiary calculated using the return multiples
specified in Section 1.72-9 of the Treasury Regulations as of the Beneficiary's
birth date in the calendar year in which distributions are required to commence,
<PAGE>
and reduced by one for each subsequent calendar year. If the Beneficiary is the
Participant's Spouse, he or she may elect, prior to the time distributions are
required to commence, to have his or her life expectancy recalculated annually.
If a Spouse so elects, his or her life expectancy for each subsequent calendar
year shall be determined as of his or her birth date in such calendar year.
2.07 "Beneficiary" shall mean any person or legal representative
-----------
effectively designated by the Participant as a person entitled to receive
benefits on or after the death of a Participant. Such term shall also include
any person or legal representative designated by a Beneficiary as a person
entitled to receive benefits on or after the death of such Beneficiary.
2.08 "Code" shall mean the Internal Revenue Code of 1986, as amended.
----
Reference to a section of the Code shall include any comparable section or
sections of future legislation that amends, supplements or supersedes such
section.
2.09 "Compensation" shall mean:
------------
(a) except as provided in subsection (b), (c), and (d) and subject
to the limitation of subsection (e), one of the following as elected by the
Employer in the Adoption Agreement:
(i) W-2 Compensation. Information required to be reported under
----------------
Sections 6041, 6051 and 6052 of the Code (Wages, tips and other compensation as
reported on Form W-2). Compensation is defined as wages within the meaning of
Section 3401(a) and all other payments of compensation to an Employee by the
Employer (in the course of the Employer's trade or business) for which the
Employer is required to furnish the Employee a written statement under Sections
6041(d), 6051(a)(3) and 6052. Compensation must be determined without regard to
any rules under Section 3401(a) that limit the remuneration included
<PAGE>
in wages based on the nature or location of the employment or the services
performed (such as the exception for agricultural labor in Section 3401(a)(2)).
(ii) 415 Safe Harbor Compensation. "Compensation" as defined in
----------------------------
Section 5.05(b)(ii) of this Plan.
(iii) Safe Harbor Alternative Definition. Compensation as
----------------------------------
defined in Section 2.09(a)(ii) above, reduced by all of the following items
(even if includible in gross income): reimbursements or other expense
allowances, fringe benefits (cash and non-cash), moving expenses, deferred
compensation, and welfare benefits.
(iv) In the case of a Self-Employed Individual, the
determination of Compensation shall be made on the basis of the Self-Employed
Individual's Earned Income.
(b) If so specified in the Adoption Agreement, the Employer may elect
to include in the definition of Compensation the Participant's Salary Reduction
Contributions, Deferred Cash Contributions and any other amount which is
contributed by the Employer pursuant to a salary reduction agreement and which
is not includible in the gross income of the employee under sections 125,
402(e)(3), 402(h) or 403(b) of the Code.
(c) If so specified in the Adoption Agreement, an Employer may elect
to exclude from the definition any one or more of the following types of
compensation:
(i) additional compensation for Participants working outside
their regularly scheduled tour of duty such as overtime pay, premiums for shift
differential and call-in premiums;
(ii) bonuses;
(iii) commissions;
<PAGE>
(iv) such other items as specified in the Adoption Agreement;
provided, however, that if the Employer elects an alternative definition of
- -------- -------
Compensation pursuant to this Section 2.09(c) for purposes of allocating
Employer Profit Sharing Contributions and forfeitures thereof, then such
alternative definition must be tested by the Administrator to show that it meets
the nondiscrimination requirements of Section 414(s)(3) of the Code. Such
alternative definition of Compensation may not be used for purposes of Articles
V, VI and XXIII.
(d) If this Plan is adopted, (i) as an amendment to an existing plan,
(ii) to remove a disqualifying provision which results from a change in the
qualification requirements of the Code made by the Tax Refon-n Act of 1986 and
such other legislation as set forth in Section 1.401(b)-I(b)(2)(ii) of the
regulations under Code Section 401(b), and (iii) within the remedial amendment
period applicable to such disqualifying provision, then for Plan Years beginning
before the date such amendment is adopted, "Compensation" shall, subject to the
limitation of subsection (e), mean Compensation as defined under the terms of
the plan prior to its amendment.
(e) In addition to other applicable limitations set forth in the
Plan, and notwithstanding any other provision of the Plan to the contrary, for
Plan Years beginning on or after January 1, 1994, the annual Compensation of
each Participant taken into account under the Plan for any determination period
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) of the Code. The cost-
of-living adjustment in effect for a calendar year applies to any period, not to
exceed 12 months, beginning in such calendar year over which Compensation is
determined ("determination period"). If a determination period is a short Plan
Year (i.e., shorter than 12 months), the OBRA '93 annual
<PAGE>
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.
In determining the Compensation of a Participant for purposes of this
limitation, the rules of Section 414(q)(6) of the Code shall apply, except in
applying such rules, the term "family" shall include only the Spouse of the
Participant and any lineal descendants of the Participant who have not attained
age 19 before the close of the year. If, as a result of the application of such
rules the OBRA '93 annual compensation limit is exceeded, then (except for
purposes of determining the portion of Compensation up to the integration level
if this Plan provides for permitted disparity), the limitation shall be prorated
among the affected individuals in proportion to each such individual's
Compensation as determined under this Section prior to the application of this
limitation.
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.
(f) Compensation shall be based on the amount actually paid to the
Participant during the Plan Year. To the extent elected by the Employer in the
Adoption Agreement, for purposes of allocating Employer Profit Sharing
Contributions and/or Employer Matching Contributions and/or applying the Section
401(m) nondiscrimination test, Compensation shall be based on the amounts paid
during that portion of the Plan Year during which the Employee is eligible to
participate with respect to the allocation of such contributions. To the extent
elected by the Employer in the Adoption Agreement, for purposes of applying the
Section 401(k) nondiscrimination test, Compensation shall be based on the amount
paid during that portion of the Plan Year during which the Employee is eligible
to make a salary reduction election and/or to
<PAGE>
receive allocations of Deferred Cash Contributions. Notwithstanding the
preceding sentence, compensation for the purposes of Article V (Code Section 415
Limitations on Allocations) shall be based on the amount actually paid or made
available to the Participant during the Limitation Year. Compensation for the
initial Plan Year for a new plan shall be based upon eligible Participants'
Compensation, subject to the Adoption Agreement, from the Effective Date through
the end of the first Plan Year.
2.10 "Deductible Voluntary Contribution Account" shall mean the separate
-----------------------------------------
account maintained pursuant to Section 7.03(g) for any deductible voluntary
contributions under Code Section 219 that the Participant made for 1986 and
earlier calendar years and the income, expenses, gains and losses attributable
thereto.
2.11 "Deferred Cash Allocation" shall mean the contribution payable by the
------------------------
Employer to the Trust on behalf of a Participant subject to the Participant's
right to elect to receive all or a portion of such contribution in cash in lieu
of having it contributed to the Trust on his or her behalf.
2.12 "Deferred Cash Contribution Account" shall mean the separate account
----------------------------------
maintained pursuant to Section 7.03(b) hereof for Deferred Cash Contributions
allocated to the Participant and the income, expenses, gains and losses
attributable thereto.
2.13 "Deferred Cash Contributions" shall mean contributions to the Trust
---------------------------
by the Employer in accordance with Section 4.02 hereof.
2.14 "Designated Investment" shall mean either a collective investment
---------------------
trust for the collective investment of assets of employee pension or profit
sharing trusts pursuant to Revenue Ruling 81-100, a commingled investment
vehicle for the collective investment of assets of institutional investors, or a
regulated investment company, for which Scudder, Stevens & Clark,
<PAGE>
Inc., its successor or any of its affiliates, acts as investment adviser and any
of which are designated by Scudder Investor Services, Inc. or its successors as
eligible for investment under the Plan.
2.15 "Designation of Beneficiary" or "Designation" shall mean the document
-------------------------- -----------
executed by a Participant under Article XVII.
2.16 "Disabled" or shall mean the inability to engage in any substantial
--------
gainful activity by reason of any medically determinable physical or mental
impairment that can be expected to result in death or last for a continuous
period of 12 months or more, as certified by a licensed physician selected by
the Participant and approved by the Employer.
2.17 "Distributor" shall mean Scudder Investor Services, Inc. or its
-----------
successor.
2.18 "Earned Income" shall mean the net earnings from self-employment in
-------------
the trade or business with respect to which the Plan is established, for which
personal services of the Owner-Employee or Self-Employed Individual are a
material income-producing factor. Net earnings will be determined without regard
to items not included in gross income and the deductions allocable to such
items, except that, for taxable years beginning after December 31, 1989, net
earnings shall be determined with regard to the deduction allowed by Code
Section 164(f). Net earnings are reduced i)y contributions by the Employer to a
qualified plan, including this Plan, to the extent deductible under Code Section
404.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual Earned Income of each
Participant taken into account under the Plan for any determination period 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
<PAGE>
of living in accordance with Section 401(a)(17) of the Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not to exceed 12
months, beginning in such calendar year over which Earned Income is determined
("determination period"). If a determination period is a short Plan Year (i.e.,
shorter 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.
In determining the Earned Income of a Participant for purposes of this
limitation, the rules of Section 414(q)(6) of the Code shall apply, except in
applying such rules, the term "family" shall include only the Spouse of the
Participant and any lineal descendants of the Participant who have not attained
age 19 before the close of the year. If, as a result of the application of such
rules the OBRA '93 annual compensation limit is exceeded, then (except for
purposes of determining the portion of Earned Income up to the integration level
if this Plan provides for permitted disparity), the limitation shall be prorated
among the affected individuals in proportion to each such individual's Earned
Income as determined under this Section prior to the application of this
limitation.
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.
2.19 "Effective Date" shall mean the date specified by the Employer in the
--------------
Adoption Agreement.
2.20 "Employee" shall mean any individual who performs services in any
--------
capacity in the business of the Employer (including any individual deemed to be
an employee of the Employer under Code Section 414(n) or (o)).
<PAGE>
2.21 "Employer" shall mean the organization or other entity named as such
--------
in the Adoption Agreement and any successor organization or entity which adopts
the Plan. If the organization or other entity named as Employer in the Adoption
Agreement is a sole proprietorship or a professional corporation and the sole
proprietor of such proprietorship or the sole shareholder of the professional
corporation dies, then the legal representative of the estate of such sole
proprietor or shareholder shall be deemed to be the Employer until such time as,
through the disposition of such sole proprietor's or sole shareholder's estate
or otherwise, any organization or other entity succeeds to the interests of the
sole proprietor in the proprietorship or the sole shareholder in the
professional corporation.
Unless the adopting organization or entity elects otherwise in the Adoption
Agreement, any two or more organizations or entities which are members of (a) a
controlled group of corporations (as defined under Code Section 414(b)) which
includes the adopter, (b) a group of trades or businesses (whether or not
incorporated) which are under common control (as defined under Code Section
414(c)) which includes the adopter, or (c) an affiliated service group (as
defined under Code Section 414(m)) which includes the adopter, will be
considered to be the Employer for the purposes of the Plan. Similarly, any other
organization or entity which is required to be aggregated with the adopter
pursuant to Code Section 414(o) and the regulations thereunder will be
considered to be the Employer for the purposes of the Plan.
2.22 "Employer Contributions" shall mean Employer Profit Sharing
----------------------
Contributions, Employer Matching Contributions, Salary Reduction Contributions,
Deferred Cash Contributions, Qualified Matching Contributions and Qualified
Nonelective Contributions.
<PAGE>
2.23 "Employer Profit Sharing Contribution Account" shall mean the
--------------------------------------------
separate account maintained pursuant to Section 7.03(c) hereof for Employer
Profit Sharing Contributions allocated to the Participant and the income,
expenses, gains and losses attributable thereto.
2.24 "Employer Profit Sharing Contributions" shall mean contributions to
-------------------------------------
the Trust by the Employer in accordance with Section 4.03 hereof. Employer
Profit Sharing Contributions may be fixed or discretionary as provided in the
Adoption Agreement.
2.25 "Employer Matching Contribution Account" shall mean the separate
--------------------------------------
account maintained pursuant to Section 7.03(d) hereof for Employer Matching
Contributions allocated to the Participant and the income, expenses, gains and
losses attributable thereto.
2.26 "Employer Matching Contributions" shall mean the contributions made
-------------------------------
to the Trust by the Employer in accordance with Section 4.04 hereof as matching
contributions.
2.27 "Family Member" shall mean, with respect to a particular Employee,
-------------
any individual who is a Spouse, lineal ascendant, lineal descendent, or a Spouse
of a lineal ascendant or descendent of the Employee. "Family Member" as used in
this Plan refers to an individual who is, or was during the Plan Year in
question, an Employee.
2.28 "First Required Distribution Year" shall mean:
--------------------------------
(a) in the case of a Participant whose date of birth is July 1, 1917
or later date, the calendar year during which the Participant attains age 70
1/2;
(b) in the case of a Participant (i) whose date of birth is June 30,
1917 or an earlier date and (ii) who is not, and has not been at any time since
the calendar year during which he or she attained age 65 1/2, a "5% owner" (as
defined in Code Section 416(i)(1)(B)(i)) of the Employer (hereinafter a "5%
owner"), the calendar year during which occurs the later of the Participant's
separation from Service or the Participant's attainment of age 70 1/2, provided
that
<PAGE>
if the Participant continues in Service after he or she attains age 70 1/2 and
later becomes a 5% owner, such Participant's First Required Distribution Year
shall be the calendar year during which the Participant attains the status of a
5% owner;
(c) in the case of a Participant (i) whose date of birth is June 30,
1917 or an earlier date and (ii) who is, or has been at sometime since the
calendar year during which he or she attained age 65 1/2, a 5% owner, the
calendar year during which the Participant attains age 70 1/2.
2.29 "Highly Compensated Employee" shall mean:
---------------------------
(a) any Employee who was, at any time in the look-back year or
determination year, a 5% owner;
(b) any Employee who, in the look-back year:
(i) earned more than $75,000 (as adjusted by the Secretary of
the Treasury to reflect rises in the cost of living in accordance with Code
Section 415(d)) in annual compensation,
(ii) was an officer and earned more than 50% of the dollar
limitation in effect for such year under Code Section 415(b)(1)(A); or
(iii) earned more than $50,000 (as adjusted by the Secretary of
the Treasury to reflect rises in the cost of living in accordance with Code
Section 415(d)) in annual compensation and was among the top 20% of Employees
when ranked on the basis of compensation paid during such year.
For purposes of calculating the top 20% of Employees when ranked on the
basis of compensation paid during the look-back year, there shall be excluded
from the total number of Employees: (A) Employees with less than six months of
Service, (B) Employees who normally
<PAGE>
work less than 17 1/2 hours per week, (C) Employees who normally work less than
six months per year, (D) except as provided in Treasury Regulations, Employees
covered by a collective bargaining agreement, (E) Employees who have not
attained 21 years of age, and (F) Employees who are nonresident aliens and who
receive no earned income from the Employer that constitutes income from sources
within the United States;
(c) any Employee not described in paragraph (b) above but who is
described in clause (i), (ii) or (iii) of paragraph (b) if the term
"determination year" is substituted for the term "look-back year," and the
Employee is among the 100 Employees who received the most compensation from the
Employer during the determination year; and
(d) any former Employee who has separated from Service but who was a
Highly Compensated Employee as described in paragraph (a), (b) or (c) above when
he separated from Service or at any time after he attained age 55.
For purposes of this Section, "compensation" shall mean the amount paid
during the look-back year or determination year, whichever is applicable, by the
Employer to the Employee for services rendered (regardless of whether the
individual was a Participant at the time) as reportable to the Federal
Government for the purpose of withholding federal income taxes and increased by
any amount to which Code Sections 125, 402(e)(3), 402(h)(1)(B) or 403(b) apply.
Also for purposes of this Section, no more than 50 Employees or, if lesser, the
greater of three Employees or 10% of Employees shall be treated as officers;
however, if no officer has compensation in excess of the applicable stated
dollar amount above in any year, the officer with the highest compensation shall
be treated as described in paragraph (b) or (c), as applicable.
For this purpose, the determination year shall be the Plan Year. The look-
back year shall be the 12-month period immediately preceding the determination
year. The Employer may elect
<PAGE>
to make the look-back year calculation for a determination on the basis of the
calendar year ending with or within the applicable determination year, as
prescribed by Section 414(q) of the Code and the regulations issued thereunder.
If an Employee is, during a determination year or look-back year, a Family
Member of either a 5% owner who is an active or former Employee or a Highly
Compensated Employee who is one of the ten most Highly Compensated Employees
ranked on the basis of compensation paid by the Employer during such year, then
the Family Member and the 5% owner or top-ten Highly Compensated Employee shall
be aggregated. In such case, the Family Member and the 5% 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% owner or
top-ten Highly Compensated Employee. Finally, all interpretative questions
concerning whether an individual constitutes a Highly Compensated Employee shall
be resolved in a manner consistent with Department of Treasury and Internal
Revenue Service interpretations of Code Section 414(q).
2.30 "Highly Compensated Participant" shall mean a Highly Compensated
------------------------------
Employee who was, at any time during the Plan Year in question, eligible to
participate in the Plan.
2.31 "Hour of Service" shall mean each hour credited to an Employee in the
---------------
applicable computation period (a 12-consecutive month period) pursuant to
subsection (a) or (b) below, as the case may be.
(a) If the Employer has so selected in the Adoption Agreement, Hours
of Service shall be credited on the basis of weeks of employment and the rules
in paragraphs (i) through (iii) below shall apply as modified by paragraphs (iv)
and (v) below.
<PAGE>
(i) Each Employee shall be credited with 45 Hours of Service
for each week in which the Employee would be credited with at least one hour of
service under Section 2530.200b-2 of the Department of Labor Regulations which
are incorporated herein by reference. In the case of a week which extends into
two computation periods, the Hours of Service for such week shall be allocated
between the two computation periods on a pro rata basis.
(ii) In the case of a payment made or due to an Employee which
is not calculated on the basis of units of time, the number of Hours of Service
to be credited shall be equal to the amount of the payment divided by the
Employee's most recent hourly rate of compensation as determined under Section
2530.200b-2 of the Department of Labor Regulations.
(iii) No more than 501 Hours of Service shall be credited under
this Section for any single continuous period (whether or not such period occurs
in a single computation period) during which no duties or services are performed
for the Employer (or any other corporation during a time when such corporation
was related to the Employer within the meaning of Code Section 414), but for
which the individual is paid.
(iv) The following hours shall be considered to be hours of
service for which an Employee would be credited under Section 2530.200b-2 of the
Department of Labor Regulations for the purposes of subsection (a)(i) of this
Section:
(A) An hour for which an Employee is paid, or entitled to
payment, for the performance of duties or services for the Employer.
(B) An hour for which an Employee is paid, or entitled to
payment, by the Employer (or any other corporation during a time when such
corporation was related to the Employer within the meaning of Code Section 414)
on account of a period of time during which no duties are performed
(irrespective of whether the employment relationship has
<PAGE>
terminated) due to vacation, holiday, illness, incapacity (including
Disability), layoff, jury duty, military duty or leave of absence (unless such
payment is made or due solely to comply with applicable workman's compensation,
unemployment compensation or disability insurance laws or solely as
reimbursement for the Employee's medical expenses).
(C) An hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by the Employer (or any other
corporation during a time when such corporation was related to the Employer
within the meaning of Code Section 414). The same hours shall not be considered
both under paragraph (iv)(A) or paragraph (iv)(B), as the case may be, and under
this paragraph (iv)(C). Such hours shall be treated under paragraphs (i) through
(iii) as occurring in the computation period or periods to which the award or
agreement pertains rather than the computation period in which the award,
agreement or payment is made.
(v) Solely for the purpose of determining whether a One-Year
Break in Service has occurred, an Employee shall be credited with any Hours of
Service which would otherwise have been credited to such Employee but for such
absence from work during a Plan Year which commences after December 31, 1984
because of: such Employee's pregnancy, birth of a child of the Employee,
placement of an adopted child with the Employee, or caring for a natural or an
adopted child for a period beginning immediately following birth or placement.
Hours of Service shall be credited to an Employee pursuant to this
paragraph in the manner indicated in paragraphs (i) through (iii) above for the
computation period during which such absence begins, if the Employee would
otherwise have suffered a One-Year Break in Service and, in all other cases, in
the next following computation period. No more than 501 Hours of Service shall
be credited under this paragraph by reason of any one placement or pregnancy.
Notwithstanding any implication of this paragraph (v) to the contrary, no credit
shall be given
<PAGE>
pursuant to this paragraph (v) unless the Employee makes a timely, written
filing with the Administrator which establishes valid reasons for the absence
and enumerates the days for which there was such an absence.
(b) If the Employer has not selected in the Adoption Agreement to
have Hours of Service credited on the basis of weeks of employment, Hours of
Service shall mean:
(i) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for the Employer. These hours shall be
credited to the Employee for the computation period in which the duties are
performed;
(ii) Each hour for which an Employee is paid, or entitled to
payment, by the Employer on account of a period of time during which no duties
are performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
Disability), layoff, jury duty, military duty or leave of absence. No more than
501 Hours of Service shall be credited under this paragraph for any single
continuous period (whether or not such period occurs in a single computation
period). Hours under this subsection shall be calculated and credited pursuant
to section 2530.200b-2 of the Department of Labor Regulations which are
incorporated herein by this reference;
(iii) Solely for the purpose of determining whether a One-Year
Break in Service has occurred, each hour which normally would have been credited
to an Employee (or in any case in which such hours cannot be determined, eight
hours per day of such absence) but for an absence from work during a Plan Year
which commences after December 31, 1984 because of such individual's pregnancy,
birth of a child of the Employee, placement of an adopted child with the
Employee, or caring for an adopted or a natural child following placement or
birth. Hours of Service shall be credited to an Employee pursuant to this
paragraph for the computation period
<PAGE>
during which such absence begins if the individual would otherwise have suffered
a One-Year Break in Service, and in all other cases, in the immediately
following computation period. No more than 501 Hours of Service shall be
credited under this paragraph by reason of any one placement or pregnancy.
Notwithstanding any implication of this paragraph (iii) to the contrary, no
credit shall be given under this paragraph (iii) unless the Employee makes a
timely, written filing with the Administrator which establishes valid reasons
for the absence and enumerates the days for which there was such an absence;
(iv) Each hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by the Employer. The same Hours of
Service shall not be credited both under paragraph (i), (ii) or (iii), as the
case may be, and under this paragraph (iv). These hours shall be credited to the
Employee for the computation period or periods to which the award or agreement
pertains rather than the computation period in which the award, agreement or
payment is made.
(c) (i) Where the Employer maintains the plan of a predecessor
employer, service for such predecessor employer shall be treated as Service of
the Employer. Where the Employer does not maintain the plan of a predecessor
employer, employment by a predecessor employer, upon the written election of the
Employer made in a uniform and non-discriminatory manner, shall be treated as
Service for the Employer.
(ii) If the Employer is a member of (A) a controlled group of
corporations (as defined under Code Section 414(b)), (B) a group of trades or
businesses (whether or not incorporated) which are under common control (as
defined under Code Section 414(c)), or (C) an affiliated service group (as
defined under Code Section 414(m)), all service of an Employee for any member of
such a group, or for any other entity required to be aggregated
<PAGE>
with the Employer pursuant to Code Section 414(o) and the regulations
thereunder, shall be treated as if it were Service for the Employer for purposes
of this Section.
(iii) Except as provided below, service of any Employee, who is
considered a leased employee of the Employer under Code Section 414(n)(2) shall
be treated as if it were Service for the Employer for purposes of this Section.
However, qualified plan contributions or benefits provided by the leasing
organization which are attributable to services performed for the Employer shall
be treated as provided by the Employer. The provisions of this paragraph shall
not apply to any leased employee if such individual:
(A) is covered by a money purchase pension plan
maintained by the leasing organization providing:
(1) a non-integrated employer contribution rate of
at least 10% of compensation (as defined in Code Section 415(c)(3), but
including amounts contributed by the Employer pursuant to a salary reduction
agreement which are excludable from the Employee's gross income under Code
Section 125, 402(e)(3), 402(h), or 403(b),
(2) immediate participation for leasing organization
employees who earn more than $1,000 in a year (other than employees who perform
substantially all their services for the organization), and
(3) full and immediate vesting, and
(B) is a member of a group of leased employees which in
the aggregate does not constitute more than 20% of the Employer's non-highly
compensated work force (within the meaning of Code Section 414(n)(5)(C)(ii)).
(C) For purposes of this Section, the term "leased
employee" means any person who is not an Employee and who, pursuant to an
agreement between the
<PAGE>
recipient and any other person, has performed services for the Employer (or for
the Employer and related persons determined in accordance with Code Section
414(n)(6)) 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 Employer.
2.32 "Integration Level" for a Plan Year shall mean the lesser of the
-----------------
Social Security Wage Base (as in effect on the first day of the Plan Year) or
the dollar amount specified in the Adoption Agreement.
2.33 "Integration Rate" for the Plan Year shall mean the lesser of the
----------------
Maximum Disparity Rate (as in effect on the first day of the Plan Year) or the
rate specified in the Adoption Agreement.
2.34 "Loan Trustee" shall mean the person named in the Adoption Agreement
------------
to act as trustee solely for the purpose of administering the provisions of
Article XII and holding the Trust assets to the extent that they are invested in
loans pursuant to such Article. Loan assets shall be held in a separate trust if
the person named as Loan Trustee is not the same person as the person named as
Trustee. Scudder Trust Company will not act as Loan Trustee unless it
specifically agrees in writing to act as such.
2.35 "Maximum Disparity Rate" shall mean the rate determined in accordance
----------------------
with paragraphs (a), (b) or (c) and (d) below.
(a) If the Integration Level selected by the Employer in the Adoption
Agreement is equal to the Social Security Wage Base or does not exceed the
greater of $10,000 or 20 percent of the Social Security Wage Base, then, except
as provided in (d) below, the Maximum Disparity Rate is equal to the greater of
(i) 5.7 percent or (ii) the OASDI Rate.
<PAGE>
(b) If the Integration Level selected by the Employer in the Adoption
Agreement exceeds the greater of $10,000 or 20 percent of the Social Security
Wage Base but is less than or equal to 80 percent of the Social Security Wage
Base, then, except as provided in (d) below, the Maximum Disparity Rate is equal
to the greater of (i) 4.3 percent or (ii) the OASDI Rate multiplied by a
fraction the numerator of which is 4.3 and the denominator of which is 5.7.
(c) If the Integration Level selected by the Employer in the Adoption
Agreement exceeds 80 percent of the Social Security Wage Base but is less than
the Social Security Wage Base, then, except as provided in (d) below, the
Maximum Disparity Rate is equal to the greater of (i) 5.4 percent or (ii) the
OASDI Rate multiplied by a fraction the numerator of which is 5.4 and the
denominator of which is 5.7.
(d) If allocations for a Plan Year are made on an integrated basis
pursuant to Section 4.03(b)(ii) and the provisions of Section 23.03 are
applicable for such Plan Year, then for purposes of determining the Integration
Rate as applied to limit allocations under Section 4.03(b)(ii), the Maximum
Disparity Rate determined in accordance with paragraph (a), (b) or (c) above
shall be reduced by 3 percent. If the Employer has elected in the Adoption
Agreement to make a 4 percent minimum allocation pursuant to Section 23.07(b),
then 4 percent shall be substituted for 3 percent in the preceding sentence.
2.36 "Nondeductible Voluntary Contribution Account" shall mean the separate
----------------------------------------------
account maintained pursuant to the Section 7.03(e) hereof for Nondeductible
Voluntary Contributions made by the Participant and the income, expenses, gains
and losses attributable thereto.
2.37 "Nondeductible Voluntary Contributions" shall mean all contributions
---------------------------------------
by Participants which are not deductible voluntary contributions under Code
Section 219, Rollover
<PAGE>
Contributions, or contributions of accumulated deductible employee contributions
(as defined in Code Section 72(o)(5)).
2.38 "Non-Highly Compensated Employee" shall mean an Employee who is
---------------------------------
neither a Highly Compensated Employee nor a Family Member of a Highly
Compensated Employee.
2.39 "Non-Highly Compensated Participant" shall mean a Non-Highly
------------------------------------
Compensated Employee who was, at any time during the Plan Year in question,
eligible to participate in the Plan.
2.40 "Normal Retirement Date" or "Normal Retirement Age" shall mean the
------------------------
date selected by the Employer in the Adoption Agreement.
2.41 "OASDI Rate" for a Plan Year shall mean that portion of the tax rate
------------
under Code Section 3111 (a) in effect on the first day of the Plan Year which is
attributable to old-age insurance.
2.42 "One-Year Break in Service" shall mean a 12-consecutive-month period
---------------------------
in which an Employee does not complete more than 500 Hours of Service unless the
number of Hours of Service specified in the Adoption Agreement for purposes of
determining a Year of Service is less than 501, in which case a 12-consecutive-
month period in which an Employee has fewer than that number of Hours of Service
shall be a One-Year Break in Service. The computation period over which One-Year
Breaks in Service shall be measured shall be the same computation period over
which Years of Service are measured.
2.43 "Owner-Employee" shall mean an Employee who is a sole proprietor
----------------
adopting this Plan as the Employer, or who is a partner owning more than 10% of
either the capital or profits interest of a partnership adopting this Plan as
the Employer. Solely for the purposes of Article XII hereof, an Owner-Employee
shall also mean an Employee who owns (or is considered as
<PAGE>
owning within the meaning of Code Section 318(a)(1)) on any day during the Year,
more than 5% of the Employer if the Employer is an electing small business
corporation.
2.44 "Participant" shall mean an Employee who is eligible to participate in
-------------
the Plan under Article III (other than, if this Plan is adopted as a
nonstandardized plan, a Self-Employed Individual who elects not to be a
Participant in the Plan) and any other person (including former Employees) with
respect to whom any Account exists under the Plan.
2.45 "Plan" shall mean this 401(k) Plan and Adoption Agreement.
------
2.46 "Plan Year" shall mean the fiscal year of the Employer or a different
-----------
12-consecutive-month period as specified in the Adoption Agreement. A Plan Year
may consist of less than a 12-consecutive-month period in the case of the
initial Plan Year or a short Plan Year resulting from a change in Plan Year.
2.47 "Prototype 401(k) Plan" shall mean these Articles I to XXV.
-----------------------
2.48 "Qualified Matching Contributions" shall mean contributions made to
----------------------------------
the Trust by the Employer in accordance with Section 6.03(c) hereof on behalf of
Non-Highly Compensated Participants to enable the Plan to satisfy one or more of
the non-discrimination tests set forth in Article VI. Qualified Matching
Contributions are subject to full and immediate vesting and are distributable
only in accordance with the distribution provisions, other than hardship
distributions, that are applicable to Deferred Cash Contributions and Salary
Reduction Contributions. The term "Qualified Matching Contributions" could, at
the election of the Administrator, also apply to Employer Matching Contributions
if such contributions are subject to full and immediate vesting and are
distributable only in accordance with the distribution provisions, other than
hardship distributions, that are applicable to Deferred Cash Contributions and
Salary Reduction Contributions.
<PAGE>
2.49 "Qualified Nonelective Contributions" shall mean contributions made to
-------------------------------------
the Trust by the Employer in accordance with Section 6.02(c) hereof on behalf of
Non-Highly Compensated Participants to enable the Plan to satisfy one or more of
the nondiscrimination tests set forth in Article VI. Qualified Nonelective
Contributions are subject to full and immediate vesting and are distributable
only in accordance with the distribution provisions, other than hardship
distributions, that are applicable to Deferred Cash Contributions and Salary
Reduction Contributions. The term "Qualified Nonelective Contributions" could,
at the election of the Administrator, also apply to Employer Profit Sharing
Contributions if such contributions are subject to ftill and immediate vesting
and are distributable only in accordance with the distribution provisions, other
than hardship distributions, that are applicable to Deferred Cash Contributions
and Salary Reduction Contributions.
2.50 "Qualified Nonelective Contribution Account" shall mean the separate
--------------------------------------------
account maintained pursuant to Section 7.03(f) hereof for Qualified Matching
Contributions and Qualified Nonelective Contributions allocated to the
Participant and the income, expenses, gains and losses attributable thereto.
2.51 "Rollover Account" shall mean the separate account maintained pursuant
------------------
to Section 7.03(h) hereof for any Rollover Contributions made by the Participant
and the income, expenses, gains and losses attributable thereto.
2.52 "Rollover Contributions" shall mean contributions made to the Trust by
------------------------
Participants in accordance with Section 4.06 hereof.
2.53 "Salary Reduction Contribution Account" shall mean the separate
---------------------------------------
account maintained pursuant to Section 7.03(a) hereof for Salary Reduction
Contributions made on behalf of the Participant and the income, expenses, gains
and losses attributable thereto.
<PAGE>
2.54 "Salary Reduction Contributions" shall mean contributions made to the
--------------------------------
Trust by the Employer in accordance with Section 4.01 hereof as a result of the
election by Participants to contribute part of their Compensation.
2.55 "Self-Employed Individual" shall mean an Employee who has Earned
--------------------------
Income for the taxable year from the trade or business for which the Plan is
established or would have had earned income but for the fact that the trade or
business had no net profits for such year.
2.56 "Service" shall mean employment by the Employer and, if the Employer
---------
is maintaining the plan of a predecessor employer, or if the Employer is not
,maintaining the plan of a predecessor employer but has so elected in the manner
described in Section 2.31 above, employment by such predecessor employer.
2.57 "Social Security Wage Base" for a Plan Year shall mean the maximum
---------------------------
amount of annual earnings which may be considered wages under Code Section
3121(a)(1) as in effect on the first day of such Plan Year for purposes of the
old-age, survivors, and disability insurance under Code Section 3111(a).
2.58 "Sponsor" shall mean any of the organizations (a) which have requested
---------
a favorable opinion letter from the National Office of the Internal Revenue
Service for this Plan or (b) to which a favorable opinion letter for this Plan
has been issued by the National Office of the Internal Revenue Service.
2.59 "Spouse" shall mean the Spouse or surviving Spouse of the Participant,
--------
provided that a former Spouse will be treated as the Spouse and a current Spouse
will not be treated as the Spouse to the extent provided under a qualified
domestic relations order (as defined in Code Section 414(p)).
<PAGE>
2.60 "Trust" shall mean any trust established under Article XIII of this
-------
Plan for investment of the assets of the Plan. If more than one Trust is
established under Article XIII, references herein to the Trust shall, as the
context requires, refer to each such Trust, separately or all such Trusts,
collectively.
2.61 "Trust Fund" shall mean with respect to a Trust the contributions to
------------
such Trust and any assets into which such contributions shall be invested or
reinvested in accordance with Sections 13.01 and 13.03 of this Plan. If more
than one Trust is established under Article XIII, references herein to the Trust
Fund shall refer to the Trust Fund of each such Trust, separately, or all such
Trusts, collectively, as the context requires.
2.62 "Trustee" shall mean, with respect to each Trust, the person or
---------
persons, including any successor or successors thereto, named in the Adoption
Agreement to act as trustee of the such Trust and hold the assets of such Trust
in accordance with Article XIII hereof. If more than one Trust is established
under Article XIII, references herein to the Trustee shall, as the context
requires, refer to the Trustee or Trustees of each such Trust.
2.63 "Valuation Date" shall mean the last day of each Plan Year and such
----------------
other date(s) as may be designated by the Administrator from time to time.
2.64 "Vesting Years" shall be measured on the 12-consecutive-month
---------------
computation period specified in the Adoption Agreement.
(a) A Participant will have a Vesting Year during any such
computation period if the Participant completes the number of Hours of Service
selected in the Adoption Agreement for purposes of computing a Year of Service.
(b) When determining Vesting Years, unless the Employer has otherwise
specified in the Adoption Agreement, there shall be excluded: (i) if this Plan
is a continuation of
<PAGE>
an earlier plan which would have disregarded such service, Service before the
first Plan Year to which the Act is applicable; (ii) Service before the first
Plan Year in which the Participant attained age 18 and (iii) Service before the
Employer maintained this Plan or a predecessor plan.
2.65 "Year" shall mean the fiscal year of the Employer.
------
2.66 "Year of Service" shall be measured on the 12-consecutive-month period
-----------------
computation period specified in the Adoption Agreement during which the Employee
completes the number of Hours of Service specified in the Adoption Agreement.
The initial date of employment or reemployment is the first day on which the
Employee performs an Hour of Service. If the Employer specifies in the Adoption
Agreement that the computation period after the initial computation period shall
be the Plan Year which begins after the Employee's initial date of employment or
reemployment, an Employee who is credited with the requisite number of Hours of
Service in both the initial computation period and in the Plan Year which begins
after the Employee's date of employment or reemployment shall be credited with
two Years of Service.
ARTICLE III. ELIGIBILITY
-----------
3.01 Entry. Each Employee of the Employer, who on the Effective Date of
-----
this Plan meets the conditions specified in the Adoption Agreement, shall become
eligible to participate in the Plan connnencing with the Effective Date. Each
other Employee of the Employer, including future Employees, shall become
eligible to participate in the Plan when the eligibility requirements specified
in the Adoption Agreement are met. For the purposes of this Plan's eligibility
requirements, the exclusion concerning Employees who are covered by collective
bargaining agreements applies to individuals who are covered by a collective
bargaining contract between the Employer and Employee Representatives if
contract negotiations considered retirement benefits in
<PAGE>
good faith, unless such contract specifically provides for participation in the
Plan. For the purposes of this Section, "Employee Representatives" shall mean
the representatives of an employee organization which engages in collective
bargaining negotiations with the Employer provided that, owners, officers, and
executives of the Employer do not comprise more than 50% of the employee
organization's membership.
3.02 Interrupted Service. All Years of Service with the Employer are
-------------------
counted towards eligibility except that if the Employer has specified in the
Adoption Agreement that more than one Year of Service is required before
becoming a Participant eligible to receive allocations of Employer Matching
Contributions and/or Employer Profit Sharing Contributions, and if the
individual has a One-Year Break in Service before satisfying the relevant
eligibility requirement, Service before such break will not be taken into
account for purposes of determining when the individual is eligible to receive
allocations of Employer Matching Contributions and/or Employer Profit Sharing
Contributions once the individual returns to the employ of the Employer. A
former Employee who has met the entry requirements and who terminates Service
with the Employer prior to becoming a Participant, or a former Participant,
shall become a Participant immediately upon return to the employ of the Employer
as a member of an eligible class of Employees.
3.03 Transfer to Eligible Class. In the event an Employee who is not a
--------------------------
member of an eligible class of Employees becomes a member of an eligible class,
such Employee shall participate immediately if such Employee has satisfied the
minimum age and Service requirements and would have previously become a
Participant had he or she been a member of an eligible class throughout the
period of employment with the Employer.
<PAGE>
3.04 Determination by Administrator. The Administrator shall have the
------------------------------
discretionary authority to determine an Employee's eligibility to participate in
the Plan and shall notify each Employee upon his or her admission as a
Participant in the Plan.
ARTICLE IV. CONTRIBUTIONS
-------------
4.01 Salary Reduction Contributions. If selected by the Employer in the
------------------------------
Adoption Agreement, the Employer will make a Salary Reduction Contribution (for
allocation to the eligible Participant's Salary Reduction Account) on behalf of
each Participant who both has elected to have a portion of the Compensation
which would otherwise have been paid to him or her for the Plan Year contributed
to the Trust and has received Compensation during the Plan Year. With respect to
such elective contributions, the following provisions shall apply:
(a) an Employee shall be given an opportunity to elect, prior to the
date as of which he or she becomes eligible in accordance with procedures set by
the Administrator, to have Salary Reduction Contributions made on his or her
behalf or, in the case of an Employee who becomes eligible immediately upon
becoming an Employee, as soon as is administratively possible following his or
her initial date of eligibility;
(b) Participants shall be given opportunities to elect to commence
having Salary Reduction Contributions made on their respective behalves at such
other time or times as the Administrator designates;
(c) such elections may only be made on a prospective basis and
pursuant to written, salary reduction agreements between the Employee and the
Employer;
(d) each such written, salary reduction agreement shall be in such
form and subject to such rules as the Administrator may prescribe, and the
agreement shall specify the
<PAGE>
percentage or amount of Compensation that the Participant desires to contribute
(but in no event may such contribution exceed the percentage of Compensation
specified in the Adoption Agreement);
(e) a salary reduction agreement may be amended or terminated
prospectively during the Plan Year at such times and in such manner as permitted
by rules prescribed by the Administrator;
(f) Salary Reduction Contributions made on behalf of a Participant
shall be in an amount equal to the percentage or amount of Compensation
specified in the eligible Participant's salary reduction agreement; provided,
however, that at any time during a Plan Year the Administrator may reduce the
rate of Salary Reduction Contributions to be made on behalf of any Participant
for the remainder of the Plan Year to the extent the Administrator determines
necessary to comply with the limitations of Section 4.08, and Articles V and VI
hereof. Any amount which cannot be contributed to the Trust because of those
limitations shall be paid to the Participant in cash and such payment shall be
subject to federal income and other tax withholding by the Employer.
4.02 Deferred Cash Contributions. If selected by the Employer in the
---------------------------
Adoption Agreement, the Employer will make a Deferred Cash Contribution on
behalf of each eligible Participant (as determined in accordance with the
Adoption Agreement), in an amount equal to the Deferred Cash Allocation
specified in the Adoption Agreement, as expressed as a percentage of such
Participant's Compensation.
With respect to Participants' elections not to have amounts contributed,
the following provisions shall apply:
<PAGE>
(a) each Participant shall be afforded a reasonable opportunity to
elect not to have Deferred Cash Allocations contributed to the Trust on his or
her behalf at least once during each Plan Year and at such other time or times
as the Administrator elects;
(b) such elections may only be made pursuant to written agreements
between the Participant and the Employer;
(c) each such written agreement shall be in such form and subject to
such rules as the Administrator may prescribe, and the election shall specify
the amount of the Deferred Cash Allocation that the Participant desires to
receive in cash; and
(d) the amount which a Participant has elected to receive in cash
pursuant to such an election shall be paid to the Participant by the Employer no
later than the last day on which the Deferred Cash Contributions for the Plan
Year in question must be paid to the Trust under Section 7.02 hereof.
Notwithstanding the above, the Deferred Cash Contribution otherwise to be
made for a Participant may be reduced to the extent necessary to comply with the
limitations of Section 4.08 hereof and shall be reduced to the extent necessary
to comply with the limitations of Articles V and VI hereof. Any amount which
cannot be contributed to the Trust because of those limitations shall be paid to
the Participant in cash and such payment shall be subject to federal income and
other tax withholding by the Employer.
4.03 Employer Profit Sharing Contributions. If selected by the Employer in
-------------------------------------
the Adoption Agreement, for each Plan Year, the Employer will contribute, as
Employer Profit Sharing Contributions, either a fixed amount or the amount
determined by it in its discretion. Employer Profit Sharing Contributions, plus
any forfeitures under Section 8.02 hereof, for a Plan Year shall be allocated as
of the last day of such Plan Year among the Employer Profit Sharing
<PAGE>
Contribution Accounts of eligible Participants (as determined in accordance with
the Adoption Agreement), as follows:
(a) If a non-integrated formula is elected in the Adoption Agreement,
such contribution and forfeitures shall be allocated to the Employer Profit
Sharing Contribution Account of each eligible Participant in the ratio that each
such Participant's Compensation for the Plan Year bears to the total
Compensation paid to all eligible Participants for the Plan Year; and
(b) If an integrated formula is elected in the Adoption Agreement,
such contributions and forfeitures shall be allocated in the following steps:
(i) First, Employer Profit Sharing Contributions and
lbrfeitures will be allocated to the Employer Profit Sharing Contribution
Account of each eligible Participant in the ratio that the sum of each such
Participant's Compensation and Compensation in excess of the Integration Level
for the Plan Year bears to the sum of Compensation and Compensation in excess of
the Integration Level for all such eligible Participants for the Plan Year,
provided that the amount so credited to any such Participant's Employer Profit
Sharing Contribution Account for the Plan Year shall not exceed the product of
the Integration Rate times the sum of the Participant's Compensation and
Compensation in excess of the Integration Level for the Plan Year. For purposes
of this step, in the case of any Participant who has exceeded the cumulative
permitted disparity limit described below, two times such Participant's
Compensation for the Plan Year will be taken into account.
(ii) Next, any remaining Employer Profit Sharing Contributions
and forfeitures will be allocated to the Employer Profit Sharing Contribution
Account of each eligible Participant in the ratio that each such Participant's
Compensation for the Plan Year bears to the total Compensation paid to all
eligible Participants for the Plan Year.
<PAGE>
(c) Overall permitted disparity limits.
----------------------------------
(i) Annual overall permitted disparity limit: Notwithstanding
----------------------------------------
the preceding paragraphs, for any Plan Year this Plan benefits any Participant
who benefits under another qualified plan or simplified employee pension, as
defined in Section 408(k) of the Code, maintained by the Employer that provides
for permitted disparity (or imputes disparity), Employer contributions and
forfeitures will be allocated pursuant to the provisions of Section 4.03(a)
rather than 4.03(b).
(ii) Cumulative permitted disparity limit: Effective for Plan
------------------------------------
Years beginning on or after January 1, 1995, the cumulative permitted disparity
limit for a Participant is 35 total cumulative permitted disparity years. Total
cumulative permitted years means the number of years credited to the Participant
for allocation or accrual purposes under this Plan, any other qualified plan or
simplified employee pension plan (whether or not terminated) ever maintained by
the Employer. For purposes of determining the Participant's cumulative permitted
disparity limit, all years ending in the same calendar year are treated as the
same year. If the Participant has not benefited under a defined benefit or
target benefit plan for any year beginning on or after January 1, 1994, the
Participant has no cumulative disparity limit.
4.04 Employer Matching Contributions.
-------------------------------
(a) If selected by the Employer in the Adoption Agreement, the
Employer will make an Employer Matching Contribution (for allocation together
with forfeitures under Section 8.02 below) to the Participant's Employer
Matching Contribution Account on behalf of each eligible Participant (as
determined in accordance with the Adoption Agreement) for each Plan Year that a
contribution within one or more of the contribution categories selected by the
Employer in the Adoption Agreement (i.e., Salary Reduction Contributions,
Deferred Cash
<PAGE>
Contributions, or Nondeductible Voluntary Contributions) is allocated to such
Participant's Account. The Employer Matching Contribution made for an eligible
Participant shall be in an amount determined in accordance with the Adoption
Agreement and shall be allocated in the manner specified in the Adoption
Agreement.
(b) Notwithstanding any implication of the preceding subsection (a)
to the contrary, the Employer Matching Contribution otherwise to be made for a
Participant may be reduced to the extent necessary to comply with the
limitations of Section 4.08 hereof and shall be reduced to the extent necessary
to comply with the limitations of Articles V. Any amount which cannot be
contributed to the Trust because of these limitations will be retained by the
Employer, and the Employer shall have no obligation to contribute such amount to
the Trust.
4.05 Nondeductible Voluntary Contributions. If, in the Adoption Agreement,
-------------------------------------
the Employer has specified that Participants may make Nondeductible Voluntary
Contributions, a Participant may make such contributions to his or her Account;
provided, however, that a Participant's right to make such contributions shall
be subject to the conditions and limitations specified below:
(a) The aggregate amount of a Participant's Nondeductible Voluntary
Contributions shall not cause the Annual Addition (as defined in Section 5.05(a)
hereof) to his or her Account to exceed the limitations set forth in Article V.
(b) A Participant's Nondeductible Voluntary Contributions shall be
allocated to his or her Nondeductible Voluntary Contribution Account under
Section 7.03(e) hereof.
(c) At any time during a Plan Year, the Administrator may cause a
Participant to reduce the rate of his or her Nondeductible Voluntary
Contributions for the remainder of the
<PAGE>
Plan Year to the extent the Administrator determines necessary to comply with
the limitations of Article V and VI hereof.
4.06 Rollover Contributions. The Administrator may, in its discretion,
----------------------
direct the Trustee to accept a Rollover Contribution upon the express request of
an Employee wishing to make such Rollover Contribution, subject to the consent
of the Trustee if the contribution includes property other than cash. A Rollover
Contribution shall mean a contribution which is an "eligible rollover
distribution" within the meaning of Code Section 402(c)(4) or a "rollover
contribution" within the meaning of Code Section 408(d)(3)(A)(ii) and which
satisfies all applicable provisions of the Code. Each Rollover Contribution made
by an Employee shall be allocated to his or her Rollover Account pursuant to
Section 7.03(h) hereof. Such Rollover Account shall be invested by the Trustee
as part of the Trust Fund, pursuant to Article XIII hereafter. An Employee may
make a contribution under this Section 4.06 whether or not he or she has
satisfied the age and service participation requirements set forth in the
Adoption Agreement. An Employee who makes a contribution under this Section 4.06
and does not otherwise qualify as a Participant is, nevertheless, deemed to be a
Participant for the limited purpose of administering that contribution.
The Administrator may, in its discretion, accept accumulated deductible
employee contributions (as defined in Code Section 72(o)(5)) that were
distributed from a qualified retirement plan and rolled over pursuant to Code
Sections 402(c), 403(a)(4), or 408(d)(3). The rolled over amount will be added
to the Participant's Deductible Voluntary Contribution Account.
4.07 Transfers from Other Qualified Plans. The Administrator may, in its
------------------------------------
discretion, direct the Trustee to accept the transfer of any assets held for a
Participant's benefit under a qualified retirement plan of a former employer of
such Participant. Such a transfer shall be made
<PAGE>
directly between the trustee or custodian of the former employer's plan and the
Trustee in the form of cash or its equivalent, and shall be accompanied by
written instruction showing separately the portion of the transfer attributable
to types of contributions made by the former employer and pre-tax and after-tax
contributions made by the Participant, respectively. Separate written
instructions delivered by the Administrator shall identify the portion of the
transferred funds, if any, attributable to any period during which the
Participant participated in a defined benefit plan, money purchase pension plan
(including a target benefit plan), stock bonus plan or profit sharing plan which
would otherwise have provided a life annuity form of payment to the Participant.
The Trustee and recordkeeper shall be entitled to rely on such written
instructions with respect to the character of the transferred funds. Except as
otherwise provided in Article XXIV, the amounts transferred shall be allocated
to separate accounts as provided in Section 7.03 that match the character of the
transferred funds.
4.08 Limitations on Contributions. During a Plan Year, Employer Profit
----------------------------
Sharing Contributions and Employer Matching Contributions may not, in the
aggregate, exceed (a) 15 % (or such larger percentage as may be permitted by the
Code; as a current deduction to the Employer with respect to any Plan Year) of
the total Compensation (disregarding any exclusion from Compensation specified
by the Employer in the Adoption Agreement) paid to, or accrued by the Employer
for, Participants for the Year ending in the Plan Year, less (b) any amounts
contributed as Salary Reduction Contributions and Deferred Cash Contributions,
plus (c) any unused pre-'87 credit carryovers. For this purpose, a "pre-'87
credit carryover" is the amount by which Employer Contributions for a previous
Year which commenced before January 1, 1987 were less than 15 % of the total
Compensation (disregarding any exclusion from Compensation specified by the
Employer in the Adoption Agreement) paid or accrued by the Employer to
<PAGE>
Participants for such Year, but such unused pre-'87 credit carryover shall in no
event permit the Employer Contributions for a Year to exceed 25 % (or such
larger percentage as may be permitted by the Code as a deduction to the
Employer) of the total Compensation (disregarding any exclusion from
Compensation specified by the Employer in the Adoption Agreement) paid or
accrued by the Employer to Participants for the Year ending in the Plan Year in
question.
4.09 Deductible Voluntary Contributions. This Plan will not accept
----------------------------------
deductible voluntary contributions for taxable years beginning after December
31, 1986. Deductible voluntary contributions made in prior taxable years shall
be maintained in the Participant's Deductible Voluntary Contribution Account and
shall share in the gains and losses of the Trust Fund in accordance with Section
8.02(e). No part of a Participant's Deductible Voluntary Contribution Account
may be used to purchase life insurance. A Participant may withdraw all or a
portion of his or her I)eductible Voluntary Contribution Account in accordance
with Section 11.01.
ARTICLE V. CODE SECTION 415 LIMITATIONS ON ALLOCATIONS
-------------------------------------------
5.01 Employers Maintaining No Other Plan.
-----------------------------------
(a) If a Participant does not participate in, and has never
participated in another qualified plan, a welfare benefit fund (as defined in
Code Section 419(e)), an individual medical account (as defined in Code Section
415(l)(2)), or a simplified employee pension (as defined in Code Section 408(k))
maintained by the Employer, the amount of the Annual Addition which may be
credited to the Participant's Account for any Limitation Year shall not exceed
the lesser of the Maximum Permissible Amount or any other limitation contained
in the Plan.
<PAGE>
(b) If the Employer Contribution (including any forfeitures) that
would otherwise be allocated to a Participant's, Account would cause the Annual
Addition for the Limitation Year to exceed the Maximum Permissible Amount, the
amount allocated will be reduced so that any Excess Amount shall be eliminated
and, consequently, the Annual Addition for the Limitation Year will equal the
Maximum Permissible Amount.
(i) Prior to determining the Participant's actual Compensation
for the Limitation Year, the Employer may determine the Maximum Permissible
Amount for a Participant on the basis of a reasonable estimation of the
Participant's Compensation for the Limitation Year, uniformly determined for all
Participants similarly situated.
(ii) As soon as is administratively feasible after the end of
each Limitation Year, the Maximum Permissible Amount for the Limitation Year
will be determined on the basis of Participants' actual Compensation for the
Limitation Year.
(c) If the allocation of forfeitures or the use by the Employer of
the estimation described in Section 5.01(b)(i) above results in an Excess
Amount, such Excess Amount shall be eliminated pursuant to the following
procedure:
(i) The portion of the Excess Amount consisting of
Nondeductible Voluntary Contributions which are a part of the Annual Addition
shall be returned to the Participant (with any income or gains attributable
thereto) as soon as administratively feasible;
(ii) At the election of the Administrator, if after the
application of Subparagraph (i) an Excess Amount still exists, the portion of
the Excess Amount consisting of Salary Reduction Contributions and Deferred Cash
Contributions (with any income or gains attributable thereto) shall be returned
to the Participant;
<PAGE>
(iii) If after the application of subparagraph (ii) an Excess
Amount still exists and the Participant is covered by the Plan at the end of a
Limitation Year, the Excess Amount in the Participant's Account will be used to
reduce Employer Contributions (including any allocation of forfeitures) for such
Participant in the next Limitation Year, and each succeeding Limitation Year if
necessary;
(iv) If after the application of subparagraph (iii) an Excess
Amount still exists and the Participant is not covered by the Plan at the end of
a Limitation Year, the Excess Amount will be held unallocated in a suspense
account. The suspense account will be applied to reduce proportionately future
Employer Contributions (including any allocation of forfeitures) for all
remaining Participants in the next Limitation Year, and each succeeding
Limitation Year, if necessary. If a suspense account is in existence at any time
during a Limitation Year pursuant to this subparagraph, it will not participate
in the allocation of the Trust's investment gains and losses. In the event of
termination of the Plan, the suspense account shall revert to the Employer to
the extent it may not then be allocated to any Participant's Account.
(v) If a suspense account is in existence at any time during a
particular Limitation Year, all amounts in the suspense account must be
allocated and reallocated to Participants' Accounts before any Employer
Contributions or Nondeductible Voluntary Contribution may be made to the Plan
for that Limitation Year.
(d) Notwithstanding any other provision in subsections (a) through
(c), the Employer shall not contribute any amount that would cause an allocation
to the suspense account as of the date the contribution is allocated.
5.02 Employers Maintaining Other Master or Prototype Defined Contribution
--------------------------------------------------------------------
Plans.
-----
<PAGE>
(a) This Section applies if, in addition to this Plan, a Participant
is covered under another qualified Master or Prototype defined contribution
plan, a welfare benefit fund (as defined in Code Section 419(e)), an individual
medical account (as defined in Code Section 415(l)(2)), or a simplified employee
pension (as defined in Code Section 408(k)) maintained by the Employer during
any Limitation Year. The Annual Addition which may be allocated to any
Participant's Account for any such Limitation Year shall not exceed the Maximum
Permissible Amount, reduced by the sum of any portion of the Annual Addition
credited to the Participant's account under such other plans, welfare benefit
funds, and individual medical accounts for the same Limitation Year.
(b) If the Annual Addition with respect to a Participant under other
defined contribution plans, welfare benefit funds, individual medical accounts
and simplified employee pensions maintained by the Employer of what would be
portions of the Annual Addition (if the allocations were made under the Plan)
are less than the Maximum Permissible Amount and the Employer Contribution that
would otherwise be contributed or allocated to the Participant's Account under
this Plan would cause the Annual Addition for the Limitation Year to exceed this
limitation, the amount contributed or allocated will be reduced so that the
Annual Addition under all such plans and funds for the Limitation Year will
equal the Maximum Permissible Amount.
(c) If the Annual Addition with respect to the Participant under such
other defined contribution plans, welfare benefit ftinds, individual medical
accounts and simplified employee pensions in the aggregate are equal to or
greater than the Maximum Permissible Amount, no amount will be contributed or
allocated to the Participant's Account under this Plan for the Limitation Year.
<PAGE>
(d) Prior to determining the Participant's actual Compensation for
the Limitation Year, the Employer may determine the Maximum Permissible Amount
for a Participant in the manner described in Section 5.01(b)(i) provided the
Employer complies with the provisions of Section 5.01(b)(ii).
(e) If, pursuant to Section 5.02(d) or as a result of the allocation
of forfeitures, a Participant's Annual Addition under this Plan and such
Participant's annual additions under such other defined contributions plans,
welfare benefit ftinds, individual medical accounts and simplified employee
pensions would result in an Excess Amount for a Limitation Year, the Excess
Amount will be deemed to consist of the annual additions last allocated, except
that annual additions attributable to a simplified employee pension will be
deemed to have been allocated first, followed by annual additions to a welfare
benefit fund or individual medical account, regardless of the actual allocation
date.
(f) If an Excess Amount was allocated to a Participant under this
Plan on a date which coincides with the date an allocation was made under
another plan, the Excess Amount attributed to this Plan will be the product of:
(i) the total Excess Amount allocated as of such date,
multiplied by
(ii) the quotient obtained by dividing
(A) the portion of the Annual Addition allocated to the
Participant for the Limitation Year as of such date by
(B) the total Annual Addition allocated to the Participant
for the Limitation Year as of such date under this and all the other qualified
Master or Prototype defined contribution plans maintained by the Employer.
<PAGE>
(g) Any Excess Amount attributed to the Plan will be disposed in the
manner described in Section 5.01.
5.03 Employers Maintaining Other Defined Contribution Plans. If a
------------------------------------------------------
Participant is covered under another qualified defined contribution plan which
is not a Master or Prototype plan, the Annual Addition credited to the
Participant's Account under this Plan for any Limitation Year will be limited in
accordance with the provisions of Section 5.02 above as though the plan were a
Master or Prototype Plan, unless the Employer provides other limitations
pursuant to the Adoption Agreement.
5.04 Employers Maintaining Defined Benefit Plans. If the Employer
-------------------------------------------
maintains, or at any time maintained, a qualified defined benefit plan covering
any Participant in this Plan, the sum of the Participant's Defined Benefit Plan
Fraction and Defined Contribution Plan Fraction will not exceed 1.0 in any
Limitation Year. The Annual Addition which may be credited to the Participant's
Account under this Plan for any Limitation Year will be limited in accordance
with the provisions of Section 5.02 above, unless the Employer provides other
limitations pursuant to the Adoption Agreement.
5.05 Definitions. For purposes of this Article, the following terms shall
-----------
be defined as follows:
(a) Annual Addition. With respect to any Participant, the "Annual
---------------
Addition" shall be the sum of the following amounts credited to a Participant's
Account for the Limitation Year:
(i) Employer Contributions; as reported on Form W-2).
Compensation is defined as wages within the meaning of Section 3401 (a) and all
other payments of compensation to an Employee by the Employer (in the course of
the Employer's trade or
<PAGE>
business) for which the Employer is required to furnish the Employee a written
statement under Sections 6041(d), 6051(a)(3) and 6052. Compensation must be
determined without regard to any rules under Section 3401(a) that limit the
remuneration included in wages based on the nature or location of the employment
or the services performed (such as the exception for agricultural labor in
Section 3401(a)(2)).
(ii) 415 Safe Harbor Compensation. Wages, salaries, and fees for
----------------------------
professional services and other amounts received for personal services actually
rendered in the course of employment with the Employer maintaining the Plan
(including, but not limited to commissions paid salesmen, compensation for
services on the basis of a percentage of profits, commissions on insurance
premiums, tips and bonuses), and excluding the following:
(A) Employer contributions to a plan of deferred
compensation which are not includible in the Participant's gross income for the
taxable year in which contributed, or Employer contributions under a simplified
employee pension plan, or any distributions from a plan of deferred
compensation;
(B) Amounts realized from the exercise of a non-qualified
stock option, or when property transferred to the Participant in connection with
the performance of services either becomes freely transferable or is no longer
subject to a substantial risk of forfeiture;
(C) Amounts realized from the sale, exchange or other
disposition of stock acquired under an incentive stock option; and
(D) Other amounts which received special tax benefits, or
contributions made by the Employer (whether or not under a salary reduction
agreement) towards the purchase of an annuity described in Code Section 403(b)
<PAGE>
(iii) forfeitures; and
(iv) Nondeductible Voluntary Contributions.
For the purposes of calculating the amount of Employer Contributions
credited to a Participant's Account, Excess Elective Deferrals distributed on or
before the April 15 deadline described in Section 6.01(b) below shall not be
considered to be amounts credited to the Participant's Account but Excess
Contributions distributed to the Participant pursuant to Section 6.02 below, and
Excess Aggregate Contributions distributed to, or forfeited by, the Participant
pursuant to Section 6.03, 6.04 or 6.05 below shall be considered to be amounts
credited to a Participant's Account.
Any Excess Amount applied under Section 5.01(c)(iii) or (iv) or Section
5.02(e) hereof in a Limitation Year to reduce Employer Contributions will be
considered part of the Annual Addition for such Limitation Year. Amounts
allocated, after March 31, 1984, to an individual medical account (as defined in
Code Section 415(l)(2)) which is part of a pension or an annuity plan maintained
by the Employer, or to a simplified employee pension (as defined in Code Section
408(k)) maintained by the Employer, are treated as part of the Annual Addition.
Also, 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 23.02(a) hereof) under a welfare benefit fund (as defined
in Code Section 419(e)) maintained by the Employer, are treated as part of the
Annual Addition but only for the purpose of determining whether the dollar
limitation portion of the definition of Maximum Permissible Amount has been
exceeded.
<PAGE>
(b) Compensation. For the purposes of this Article V, the term
------------
"Compensation" shall mean one of the following as selected by the Employer in
the Adoption Agreement:
(i) W-2 Compensation. Information required to be reported under
----------------
Sections 6041, 6051 and 6052 of the Code (Wages, tips and other compensation
(whether or not the amounts are actually excludable from the gross income of the
Participant).
(ii) Safe Harbor Alternative Definition. Compensation as defined
----------------------------------
in (ii) above, reduced by all of the following items (even if includible in
gross income): reimbursements or other expenses allowances, fringe benefits
(cash and noncash) moving expenses, deferred compensation and welfare benefits.
For any Self-Employed Individual, Compensation shall mean Earned Income.
For purposes of applying the limitations of this Article V, Compensation
for a Limitation Year is the Compensation actually paid or made available in
gross income during such year.
Notwithstanding the preceding sentence, Compensation for a Participant in a
defined contribution plan who is permanently and totally disabled (as defined in
Code Section 22(e)(3)) is the Compensation such Participant would have received
for the Limitation Year if the Participant was paid at the rate of Compensation
paid immediately before becoming permanently and totally disabled; such imputed
compensation for the disabled Participant may be taken into account only if the
Participant is not a Highly Compensated Employee, and contributions made on
behalf of such a Participant are nonforfeitable when made.
(c) Defined Benefit Fraction. The "Defined Benefit Fraction" shall be
------------------------
a fraction, the numerator of which is the sum of the Participant's Projected
Annual Benefits under all the defined benefit plans (whether or not terminated)
maintained by the Employer, and the
<PAGE>
denominator of which is the lesser of 125 % of the dollar limitation in effect
for the Limitation Year under Code Section 415(b)(1)(A) or 140% of the
Participant's Highest Average Compensation (including any adjustments required
by Code Section 415(b)).
Notwithstanding the above, if the Participant was a participant as of the
first day of the first Limitation Year beginning after December 31, 1986 in one
or more defined benefit plans maintained by the Employer which were in existence
on May 6, 1986, the denominator of this fraction will not be less than 125 % of
the sum of the annual benefits under such plans which the Participant had
accrued as of the end of the last ]-imitation Year beginning before January 1,
1987 (disregarding any changes in the terms and conditions of the Plan after May
5, 1986). The preceding sentence applies only if the defined benefit plans
individually and in the aggregate satisfied the requirements of Code Section 415
for all Limitation Years beginning before January 1, 1987.
(d) Defined Contribution Dollar Limitation. The "Defined Contribution
--------------------------------------
Dollar Limitation" shall be the greater of: (i) $30,000; or (ii) one-fourth
(1/4) of the defined benefit dollar limitation set forth in Code Section
415(b)(i) as in effect for the Limitation Year.
(e) Defined Contribution Fraction. The "Defined Contribution
-----------------------------
Fraction" shall be a fraction, the numerator of which is the sum of the Annual
Additions to the Participant's account under all the defined contribution plans
(whether or not terminated) maintained by the Employer for the current and all
prior Limitation Years (including the Annual Additions attributable to the
Participant's nondeductible employee contributions to all defined benefit plans,
whether or not terminated, maintained by the Employer, and the Annual Additions
attributable to all welfare benefit funds (as defined in Code Section 419(e)),
individual medical accounts (as defined in Code Section 415(l)(2)) and
simplified employee pensions (as defined in Code Section
<PAGE>
408(k)), and the denominator of which is the sum of the Maximum Aggregate
Amounts for the current and all prior Limitation Years of service with the
Employer (regardless of whether a defined contribution plan was maintained by
the Employer). The Maximum Aggregate Amount in any Limitation Year is the lesser
of 125 % of the dollar limitation in effect under Code Section 415(c)(1)(A) or
35 % of the Participant's Compensation for such year.
If the Participant was a participant as of the end of the first day of the
first limitation Year beginning after December 31, 1986 in one or more defined
contribution plans maintained by the Employer which were in existence on May 6,
1986, the numerator of this fraction will be adjusted if the sum of this Defined
Contribution Fraction and the Defined Benefit Fraction would otherwise exceed
1.0 under the terms of this Plan. Under the adjustment, an amount equal to the
product of:
(i) the excess of the sum of the fractions over 1.0, multiplied
by
(ii) the denominator of this Defined Contribution Fraction, will
be permanently subtracted from the numerator of this fraction. The adjustment is
calculated using the fractions as they would be computed as of the end of the
last Limitation Year beginning before January 1, 1987 (disregarding any changes
in the terms and conditions of the Plan made after May 5, 1986 but using the
Code Section 415 limitation applicable to the first Limitation Year beginning on
or after January 1, 1987). This adjustment also will be made if at the end of
the last Limitation Year beginning before January 1, 1984, the sum of the
fractions exceeds 1.0 because of accruals or additions that were made before the
limitations of this Section 5 became effective to any plans of the Employer in
existence on July 1, 1982. For purposes of this paragraph, a Master or Prototype
plan with an opinion letter issued before January 1, 1983, which was adopted by
the Employer on or before September 30, 1983, is treated as a plan in existence
on July 1, 1982.
<PAGE>
(f) Employer. "Employer" means the Employer that adopts this Plan and
--------
all members of (i) a controlled group of corporations (as defined in Code
Section 414(b) as modified by Code Section 415(h)), (ii) commonly controlled
trades or businesses (whether or not incorporated) (as defined in Code Section
414(c) as modified by Code Section 415(h)), or (iii) affiliated service groups
(as defined in Code Section 414(m)) of which the Employer is a part and (iv) any
other entity required to be aggregated with the employer pursuant to Code
Section 414(o) and the regulations thereunder.
(g) Excess Amount. The "Excess Amount" is the excess of what would
-------------
otherwise be a Participant's Annual Addition for the Limitation Year over the
Maximum Permissible Amount. If at the end of a Limitation Year when the Maximum
Permissible Amount is determined on the basis of the Participant's actual
Compensation for the year, an Excess Amount results, the Excess Amount will be
deemed to consist of the portion of the Annual Addition last allocated, except
that the portion of the Annual Addition attributable to a welfare benefit fund
will be deemed to have been allocated first regardless of the actual allocation
date.
(h) Highest Average Compensation. A Participant's "Highest Average
----------------------------
Compensation" is his or her average Compensation for the three consecutive Years
of Service with the Employer that produces the highest average.
(i) Limitation Year. A "Limitation Year" is the Plan Year or any
---------------
other 12-consecutive-month period specified by the Employer in the Adoption
Agreement. All qualified plans maintained by the Employer must use the same
Limitation Year. If the Limitation Year is amended to a different
12-consecutive-month period, the new Limitation Year must begin on a date within
the Limitation Year in which the amendment is made.
<PAGE>
(j) Master or Prototype Plan. A "Master or Prototype" plan is a plan
------------------------
the form of which is the subject of a favorable opinion letter from the Internal
Revenue Service.
(k) Maximum Permissible Amount. For a Limitation Year, the "Maximum
--------------------------
Permissible Amount" with respect to any Participant shall be the lesser of
(i) the Defined Contribution Dollar Limitation or
(ii) 25% of the Participant's Compensation for the Limitation
Year.
The compensation limitation referred to in (ii) above shall not apply to
contribution for medical benefits (within the meaning of Code Section 401(h) or
Section 419A(f)(2)) which is otherwise treated as an Annual Addition under Code
Section 415(l)(1) or 419A(d)(2).
(l) Projected Annual Benefit. The "Projected Annual Benefit" is the
------------------------
annual retirement benefit (adjusted to an actuarial equivalent straight life
annuity if such benefit is expressed in a form other than a straight life
annuity or qualified joint and survivor annuity) to which the Participant would
be entitled under the terms of the plan assuming:
(i) the Participant will continue employment until normal
retirement date under the plan (or current age, if later), and
(ii) the Participant's compensation for the current Limitation
Year and all other relevant factors used to determine benefits under the plan
will remain constant for all future Limitation Years.
ARTICLE VI. LIMITATIONS ON DEFERRALS.
------------------------
MATCHING ALLOCATIONS AND VOLUNTARY CONTRIBUTIONS.
6.01 Maximum Amount of Elective Deferrals. For each calendar year, the sum
------------------------------------
of (i) the Salary Reduction Contributions, (ii) Deferred Cash Contributions
(together "Elective
<PAGE>
Deferrals") made on behalf of any Participant under this Plan, and (iii) similar
contributions made under all other plans of the Employer with a cash or deferred
feature shall not exceed the dollar limitation contained in Code Section 402(g)
in effect at the beginning of such calendar year. Elective Deferrals shall not
include amounts properly distributed to a Participant as an Excess Amount
pursuant to Section 6.01(b). If, during any calendar year, more than the maximum
permissible amount under Code Section 402(g) is allocated pursuant to one or
more cash or deferred arrangements to a Participant's accounts under the Plan
and any other plan described in Code Sections 401(k), 408(k), 403(b), 457, or
501(c)(18), the following provisions shall apply:
(a) The Participant may, but is not required to, assign to this Plan
all or part of such contributions in excess of the maximum permissible amount
(hereinafter "Excess Elective Deferrals") by notifying the Administrator by
March 1 of the calendar year next succeeding the calendar year in which such
contributions are made. To be effective, such notice must be in writing, state
that Excess Elective Deferrals have been made on behalf of such Participant for
the preceding calendar year, and be submitted to the Administrator. A
Participant is deemed to notify the Administrator of any Excess Elective
Deferrals that arise by taking into account only those Excess Elective Deferrals
made to this Plan and any other plans of this Employer.
(b) To the extent a Participant timely assigns, or is deemed to
assign, Excess Elective Deferrals to the Plan pursuant to (a) above, the
Administrator shall direct the Trustee to distribute such Excess Elective
Deferrals, adjusted for income or loss allocable thereto pursuant to Section
6.01(c) below, to the Participant no later than the April 15 of the calendar
year next succeeding the calendar year in which such Excess Elective Deferrals
were made.
(c) Excess Elective Deferrals shall be adjusted for any income or
loss up to the last day of the calendar year in which such Excess Elective
Deferrals were made. The income or
<PAGE>
loss allocable to Excess Elective Deferrals is (i) the income or loss allocable
to the Participant's Salary Reduction Contribution Account and/or Deferred Cash
Contribution Account, as the case may be, for the taxable calendar year
multiplied by a fraction, the numerator of which is such Participant's Excess
Elective Deferrals for the year and the denominator is the balance of such
account or accounts, as the case may be, determined as the beginning of the
calendar year plus any Salary Reduction Contributions or Deferred Cash
Contributions made during the calendar year without regard to any income or loss
occurring during such calendar year or (ii) such other amount determined under
any reasonable method, provided that such method is used consistently for all
Participants in calculating the distributions required under this Article VI for
the Plan Year, and is used by the Plan to allocate income or loss to
Participants' Accounts. Income or loss allocable to the period between the end
of the calendar year and the date of distribution shall be disregarded in
determining income or loss. Excess Elective Deferrals shall be treated as an
Annual Addition under the Plan, unless such amounts are distributed no later
than the first April 15 following the close i)f the calendar year.
6.02 Limitation on Elective Deferrals.
--------------------------------
(a) For each Plan Year, the Average Deferral Percentage of the group
of Highly Compensated Participants for the Plan Year may not exceed the greater
of (i) 1.25 times the Average Deferral Percentage of the group of Non-Highly
Compensated Participants for the same Plan Year; or (ii) the lesser of 2 times
the Average Deferral Percentage of all such Non-Highly Compensated Participants,
or such Average Deferral Percentage plus 2 percentage points.
For purposes of this Section 6.02, the "Average Deferral Percentage" of a
specified group of Participants for a Plan Year shall be the average of the
ratios (calculated separately for each Participant in such group) of (A) the
amount of the Contributions actually paid over to the Trust
<PAGE>
on behalf of each Participant for each Plan Year to (B) the Participant's
Compensation for the Plan Year. For purposes of this Section 6.02,
"Compensation" shall have the same meaning as in Section 2.09(a); provided,
however, that to the extent elected by the Employer in the Adoption Agreement
"Compensation" shall exclude amounts paid for the period when the Participant
was not eligible to make Elective Deferrals and/or shall include the amounts set
forth in Section 2.09(b). For purposes of this Section 6.02, "Contributions"
shall include both Elective Deferrals (including Excess Elective Deferrals of
Highly Compensated Participants) and Qualified Nonelective Contributions, if
any. Such Contributions shall not include (1) Excess Elective Deferrals of Non-
Highly Compensated Participants that arise solely from Elective Deferrals made
under this Plan or other plans of the Employer, and (2) Elective Deferrals that
are taken into account in the Contribution Percentage Test (provided the Average
Deferral Percentage test is satisfied both with and without exclusion of these
Elective Deferrals). For purposes of computing Average Deferral Percentages,
each Employee who would be a Participant but for the failure to make Elective
Deferrals shall be treated as a Participant on whose behalf no Elective
Deferrals are made.
(b) Special Rules:
--------------
(i) The deferral percentage of a Highly Compensated Participant
for the Plan Year who is eligible to have Elective Deferrals allocated to his or
her accounts under two or more arrangements described in Code Section 401(k),
that are maintained by the Employer, shall be determined as if such Elective
Deferrals were made under a single arrangement. If a Highly Compensated
Participant participates in two 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. Notwithstanding
the foregoing, certain
<PAGE>
plans shall be treated as separate if mandatorily disaggregated under
regulations promulgated under Code Section 401(k).
(ii) In the event that this Plan satisfies the requirements of
Code Section 401(k), 401(a)(4), or 410(b) only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements of such Code
sections only if aggregated with this Plan, then this Section 6.02 shall be
applied by determining the Average Deferral Percentages of Employees as if all
such plans were a single plan. For Plan Years beginning after December 31, 1989,
plans may be aggregated in order to satisfy Code Section 401(k) only if they
have the same Plan Year.
(iii) For purposes of determining the deferral percentage of a
Participant who is a 5 % owner or one of the top ten Highly Compensated
Employees, the Elective Deferrals (and, if applicable, Qualified Nonelective
Contributions) and Compensation of such Participant shall include the Elective
Deferrals (and, if applicable, Qualified Nonelective Contributions) and
Compensation for the Plan Year of his Family Members. Such Family Members shall
be disregarded as separate Participants in determining the Average Deferral
Percentage both for Non-Highly Compensated Participants and for Highly
Compensated Participants.
(iv) For purposes of applying the Average Deferral Percentage
test, Elective Deferrals and Qualified Nonelective Contributions must be made
before the last day of the 12-month period immediately following the Plan Year
to which Contributions relate.
(v) The Employer shall maintain records sufficient to
demonstrate satisfaction of the Average Deferral Percentage test and the amount
of Qualified Nonelective Contributions, if any, used in such test.
<PAGE>
(vi) The determination and treatment of the deferral percentage
of any Participant shall satisfy such other requirements as may be prescribed by
the Secretary of the Treasury.
(vii) If, in any Plan Year, the Plan benefits Employees otherwise
excludable from the Plan if the Plan had imposed the greatest minimum age and
service conditions permissible under Section 410(a) of the Code, and the
Employer applies Section 410(b) of the Code separately to the portion of the
Plan that benefits only Employees who satisfy age and service conditions under
the Plan that are lower than the greatest minimum age and service conditions
permissible under Section 410(a) and to the portion of the Plan that benefits
Employees who have satisfied the greatest minimum age and service conditions
permissible under Section 410(a), the Plan shall be treated as comprising two
separate Plans and the Average Deferral Percentage test set forth in subsection
(a) shall be applied separately for each group of Employees in each Plan.
(c) If, for any Plan Year, the Plan is unable to satisfy the Average
Deferral Percentage test set forth in subsection (a) above, the Employer may
make a Qualified Nonelective Contribution to the Trust in an amount determined
at the discretion of the Employer on behalf of the group of Non-Highly
Compensated Participants who were actively employed on the last day of the Plan
Year and who were eligible to participate in the Plan for the entire Plan Year.
The Qualified Nonelective Contribution will be allocated as follows:
(i) The lowest paid Participant in the group will be allocated
an amount equal to the lowest of (1) 25% of the Participant's Compensation for
the Plan Year; (2) the Maximum Permissible Amount applicable to the Participant;
or (3) the full amount of the Qualified Nonelective Contribution.
<PAGE>
(ii) The next lowest paid Participant will be allocated an amount
equal to the lowest of (1) 25 % of the Participant's Compensation for the Plan
Year; (2) the Maximum Permissible Amount applicable to the Participant; or (3)
the balance of the Qualified Nonelective Contribution after the above
allocation.
(iii) The allocation in step (ii) will be applied individually to
each remaining Participant in the group, in ascending order of Compensation,
until the Qualified Nonelective Contribution is fully allocated. Once the
Qualified Nonelective Contribution is fully allocated, no further allocation
will be made to the remaining Participants in the group.
(d) If, for any Plan Year, after taking into account the Qualified
Nonelective Contributions made by the Employer pursuant to Subsection (c) above,
if any, the Administrator shall determine the aggregate amount of Elective
Deferrals of Highly Compensated Participants for such Plan Year exceeds the
maximum amount of such contributions permitted by the Average Deferral
Percentage test set forth in subsection (a) above, the Administrator shall
reduce such excess contributions made on behalf of Highly Compensated
Participants in order of their deferral percentages, beginning with the highest
of such percentages (hereinafter "Excess Contributions"). For each Highly
Compensated Participant who is so affected, the Administrator shall reduce
amounts credited to his or her Salary Reduction Contribution Account and
Deferred Cash Contribution Account in proportion to the Participant's Salary
Reduction Contributions and Deferred Cash Contributions for the Plan Year.
Excess Contributions of each Participant who is subjected to the Family Member
aggregation rules shall be allocated among the Family Members of such
Participant in proportion to the Elective Deferrals (and amounts treated as
Elective Deferrals) of each Family Member that is combined to determine the
combined deferral percentage. Such Excess Contributions, plus any income and
minus any loss allocable thereto,
<PAGE>
shall be distributed to each affected Highly Compensated Participant no later
than the last day of the Plan Year following the Plan Year in which such Excess
Contributions were made. If Excess Contributions are not distributed before the
date which is 2-1/2 months after the last day of the Plan Year in which such
Excess Contributions arose, a 10% excise tax shall be imposed on the Employer
maintaining the Plan with respect to such amounts. Excess Contributions shall be
treated as an Annual Addition under the Plan.
(e) Excess Contributions shall be adjusted for any income or loss up
to and including the last day of the Plan Year for which such Excess
Contributions were made. The income or loss allocable to Excess Contributions is
(i) the income or loss allocable to the Participant's Salary Reduction
Contribution Account and/or Deferred Cash Contribution Account, as the case may
be, 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
balance of such Account or Accounts, as the case may be, determined as of the
beginning of the Plan Year plus any Salary Reduction Contributions and/or
Deferred Cash Contributions made during the Plan Year without regard to any
income or loss occurring during such Plan Year, or (ii) such other amount
determined under any reasonable method, provided that such method is used
consistently for all Participants in calculating any distributions required
under this Article VI for the Plan Year and is used by the Plan in allocating
income or loss to Participants' Accounts. Income or loss allocable to the period
between the end of the Plan Year and the date of distribution shall be
disregarded.
6.03 Limitation on Voluntary Nondeductible Contributions and Employer
----------------------------------------------------------------
Matching Contributions.
- ----------------------
<PAGE>
(a) For each Plan Year, the Average Contribution Percentage of the
group of Highly Compensated Participants for the Plan Year may not exceed the
greater of (i) 1.25 times the Average Contribution Percentage of the group of
Non-Highly Compensated Participants for the same Plan Year, or (ii) the lesser
of 2 times the Average Contribution Percentage of all such Non-Highly
Compensated Participants, or such Average Contribution Percentage plus 2
percentage points.
For purposes of this Section 6.03, the "Average Contribution Percentage" of
a specified group of Participants for a Plan year shall be the average of the
ratios (expressed as a percentage and calculated separately for each Participant
in such group) of (A) the Contribution Percentage Amounts actually paid over to
the Trust on behalf of each Participant to (B) the Participant's Compensation
for the Plan Year. For purposes of this Section 6.03, "Compensation" shall have
the same meaning as in Section 2.09; provided, however, that to the extent
elected by the Employer in the Adoption Agreement, "Compensation" shall exclude
amounts paid for the period when the Participant was not eligible to participate
in the Plan with respect to the allocation of Employer Matching Contributions or
with respect to the making of Voluntary Nondeductible Contributions and/or shall
include the amounts set forth in Section 2.09(b). For purposes of this Section
6.03, "Contribution Percentage Amounts" shall be the sum of Voluntary
Nondeductible Contributions and Employer Matching Contributions. Such
Contribution Percentage Amounts shall not include Employer Matching
Contributions that are forfeited either to correct Excess Aggregate
Contributions or because the contributions to which they related are Excess
Deferrals, Excess Contributions, or Excess Aggregate Contributions. In
determining the Contribution Percentage Amounts, the Administrator may include
Qualified Nonelective Contributions that are not used in satisfying the Average
Deferral Percentage test of Section 6.02 and Qualified
<PAGE>
Matching Contributions. The Administrator also may elect to use Elective
Deferrals in the Contribution Percentage Amounts so long as the Average Deferral
Percentage test is met before the Elective Deferrals are used in the Average
Contribution Percentage test and continues to be met following the exclusion of
those Elective Deferrals that are used to meet the Average Contribution
Percentage test. For purposes of computing Average Contribution Percentages,
each Employee who is eligible to make Voluntary Nondeductible Contributions or
Elective Deferrals or to receive an Employer Matching Contribution shall be
taken into account as a Participant, whether or not he is actually making, or
entitled to receive, such contributions to the Trust.
(b) Special Rules:
-------------
(i) For purposes of this Section 6.03, the contribution
percentage of a Highly Compensated Participant for the Plan Year who is eligible
to have Contribution Percentage Amounts allocated to his or her accounts under
two or more plans described in Code Section 401(a), or arrangements described in
Code Section 401(m) that are maintained by the Employer, shall be determined as
if the total of such Contribution Percentage Amounts was made under each plan.
Notwithstanding the foregoing, certain plans shall be treated as separate if
mandatorily disaggregated under regulations under Code Section 401(m).
(ii) In the event that this Plan satisfies the requirements of
Code Section 401(m), 401(a)(4) or 410(b) only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements of such
sections of the Code only if aggregated with this Plan, then this Section 6.03
shall be applied by determining the Contribution Percentage of Participants as
if all such plans were a single plan. For Plan Years beginning after December
31,
<PAGE>
1989, plans may be aggregated in order to satisfy Code Section 401(m) only if
they have the same Plan Year.
(iii) For purposes of determining the Contribution Percentage of a
Participant who is a 5% owner or one of the top-ten Highly Compensated
Employees, the Contribution Percentage Amounts and Compensation of such
Participant shall include the Contribution Percentage Amounts and Compensation
for che Plan Year of his Family Members. Such Family Members shall be
disregarded as separate Employees in determining the Average Contribution
Percentage both for Non-Highly Compensated Participants and for Highly
Compensated Participants.
(iv) For purposes of applying the Average Contribution Percentage
test, Voluntary Nondeductible Contributions are considered to have been made in
the Plan Year in which contributed to the Trust. Employer Matching
Contributions, Elective Deferrals, Qualified Matching Contributions and
Qualified Nonelective Contributions will be considered made for a Plan Year if
made no later than the end of the 12-month period inunediately following the
Plan Year to which such Contributions relate.
(v) The Employer shall maintain records sufficient to
demonstrate satisfaction of the Average Contribution Percentage test and the
amount of Qualified Matching Contributions and Qualified Nonelective
Contributions, if any, used in such test.
(vi) The determination and treatment of the contribution
percentage of any Participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
(vii) If, in any Plan Year, the Plan benefits Employees otherwise
excludable from the Plan if the Plan had imposed the greatest minimum age and
service conditions
<PAGE>
permissible under Section 410(a) of the Code, and the Employer applies Section
410(b) of the Code separately to the portion of the Plan that benefits only
Employees who satisfy age and service conditions under the Plan that are lower
than the greatest minimum age and service conditions permissible under Section
410(a) and to the portion of the Plan that benefits Employees who have satisfied
the greatest i-ninimum age and service conditions permissible under Section
410(a), the Plan shall be treated as comprising two separate Plans and the
Average Contribution Percentage test set forth in subsection (a) shall be
applied separately for each group of Employees in each Plan.
(c) If, for any Plan Year, the Plan is unable to satisfy the Average
Contribution Percentage test set forth in subsection (a) above, in lieu of
distributing excess Contribution Percentage Amounts to Highly Compensated
Participants as provided in subsection (d) below, the Employer may make a
Qualified Matching Contribution to the Trust on behalf of Non-Highly Compensated
Participants in an amount sufficient to enable the Plan to meet the Average
Contribution Percentage test set forth in subsection (a) above. Such Qualified
Matching Contribution shall be allocated to the Qualified Nonelective
Contribution Account of each Non-Highly Compensated Participant who is eligible
to participate in the Plan at any time during the Plan Year in the same manner
as the allocation of Employer Matching Contributions.
(d) If, for any Plan Year, the Administrator shall determine that the
aggregate Contribution Percentage Amounts of Highly Compensated Participants for
such Plan Year exceeds the maximum amount permitted by the Average Contribution
Percentage test in subsection (a) above, the Administrator shall reduce such
excess Contribution Percentage Amounts made on behalf of Highly Compensated
Participants in order of their contribution percentages, beginning with the
highest of such percentages (hereinafter "Excess Aggregate
<PAGE>
Contributions"). The foregoing determination shall be made after first
determining Excess Elective Deferrals pursuant to Section 6.01, and then
determining Excess Contributions pursuant to Section 6.02. For each Highly
Compensated Participant who is affected, the Administrator shall reduce, on a
pro rata basis, amounts credited to his or her Voluntary Nondeductible
Contribution Account and his or her Employer Matching Contribution Account.
Excess Aggregate Contributions of each Highly Compensated Participant who is
subject to the Family Member aggregation rules shall be allocated among the
Family Members in proportion to the Voluntary Nondeductible Contributions and
Employer Matching Contributions (and amounts treated as Contribution Percentage
Amounts) of each Family Member that is combined to determine the combined
contribution percentage. Subject to the provisions of Section 6.05, Excess
Aggregate Contributions which are attributable to the sum of Voluntary
Nondeductible Contributions and fully vested Employer Matching Contributions
plus any income and minus any loss allocable thereto, shall be distributed to
each affected Highly Compensated Participant no later than the last day of the
Plan Year following the Plan Year in which such Excess Aggregate Contributions
were made. If such Excess Aggregate Contributions are not distributed within 2-
1/2 months after the last day of the Plan Year in which such Excess Aggregate
Contributions arose, a 10% excise tax shall be imposed on the Employer
maintaining the Plan with respect to those amounts. Excess Aggregate
Contributions which are attributable to Employer Matching Contributions which
are not fully vested, plus any income and minus any loss allocable thereto,
shall be forfeited and shall be applied to reduce future Employer Matching
Contributions. Excess Aggregate Contributions shall be treated as an Annual
Addition under the Plan.
(e) Excess Aggregate Contributions shall be adjusted for any income
or loss up to and including the last day of the Plan Year for which such Excess
Aggregate Contributions
<PAGE>
were made. The income or loss allocable to Excess Aggregate Contributions is (i)
the income or loss allocable to the Participant's Voluntary Nondeductible
Contribution Account and/or Employer Matching Contribution Account, as the case
may be, for the Plan Year multiplied by a fraction, the numerator of which is
such Participant's Excess Aggregate Contributions for the vear and the
denominator is the balance of such Account or Accounts, as the case may be,
determined as of the beginning of the Plan Year plus any Voluntary Nondeductible
Contributions and/or Employer Matching Contributions made during the Plan
without regard to any income or loss occurring during such Plan Year, or (ii)
such other amount determined under any reasonable method, provided that such
method is used consistently for all Participants in calculating any
distributions required under this Article VI for the Plan Year and is used by
the Plan in allocating income or loss to Participants' Accounts. Income or loss
allocable to the period between the end of the Plan Year and the date of
distribution shall be disregarded.
6.04 Multiple Use Test. If one or more Highly Compensated Participants
-----------------
participate in both a cash or deferred arrangement and a plan subject to the
Average Contribution Percentage test maintained by the Employer and the sum of
the Average Deferral Percentage and Average Contribution Percentage of those
Highly Compensated Participants subject to either or both tests exceeds the
Aggregate Limit, then unless the Employer elects to make a Qualified Nonelective
Contribution or a Qualified Matching Contribution to the Trust to the extent
necessary to enable the Plan to satisfy the Aggregate Limit, the Contribution
Percentage Amounts of those Highly Compensated Participants who also participate
in a cash or deferred arrangement will be reduced (beginning with such Highly
Compensated Participant whose contribution percentage is the highest) so that
the Aggregate Limit is not exceeded. The amount by which each Highly Compensated
Participant's Contribution Percentage Amount is reduced shall be treated as an
<PAGE>
Excess Aggregate Contribution. The Average Deferral Percentage and Average
Contribution Percentage of the Highly Compensated Participants are determined
after any corrections required to meet the Average Deferral Percentage and
Average Contribution Percentage tests in Sections 6.02 and 6.03. Multiple use
does not occur if both the Average Deferral Percentage and Average Contribution
Percentage of the Highly Compensated Employees do not exceed 1.25 multiplied by
the Average Deferral Percentage and Average Contribution Percentage of the Non-
Highly Compensated Employees.
For purposes of this Section 6.04, the "Aggregate Limit" shall mean the sum
of (i) 125 percent of the greater of the Average Deferral Percentage of the Non-
Highly Compensated Participants for the Plan Year or the Average Contribution
Percentage of the Non-Highly Compensated Participants 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 (ii) the lesser of 200% of, or two
percentage points plus the lesser of such Average Deferral Percentage or Average
Contribution Percentage. "Lesser" shall be substituted for "greater" in (i) and
"greater" shall be substituted for "lesser", after "two percentage points plus
the" in (ii) if such substitution would result in a larger Aggregate Limit.
6.05 Further Limitations on Employer Matching Contributions.
------------------------------------------------------
Notwithstanding anything to the contrary in the foregoing, any Employer Matching
Contributions related to a Participant's Excess Deferrals, Excess Contributions
and/or Excess Aggregate Contributions shall be forfeited by such Participant and
such amounts shall be applied to reduce future Employer Matching Contributions.
6.06 Special Rules. Any amount distributed to a Highly Compensated
-------------
Participant pursuant to this Article VI shall not be subject to any of the
consent rules for Participants and
<PAGE>
sponsors contained in Articles IX, X and XXIV, below. Amounts distributed
pursuant to this Article VI shall be allocated on a pro rata basis among the
Designated Investments in which a Participant's Account is invested; provided,
however, that the Administrator or the Participant may specify an alternative
manner in which distributions shall be allocated.
ARTICLE VII. TIME AND MANNER OF MAKING CONTRIBUTIONS
---------------------------------------
7.01 Manner. Unless otherwise agreed to by the Trustee, contributions to
------
said Trustee shall be made only in cash. All contributions may be made in one or
more installments.
7.02 Time. Employer Contributions (other than Salary Reduction
----
Contributions and Deferred Cash Contributions) with respect to a Plan Year shall
be made before the time limit, including extensions thereof, for filing the
Employer's federal income tax return for the Year with or within which the
particular Plan Year ends (or such later time as is permitted by regulations
authorized by the Secretary of the Treasury or delegate or such earlier time as
the Secretary of the Treasury or delegate prescribes with respect to
contributions used to satisfy the nondiscrimination tests set forth in Article
VI above). Unless the Secretary of the Treasury prescribes a later date in
regulations, Salary Reduction and Deferred Cash Contributions shall be made
within 30 days after the date on which, in the absence of the Participant's
election to make such contributions, such amounts would have been payable to the
Participant as cash compensation. Nondeductible Voluntary Contributions for a
given Limitation Year (as defined in Section 5.05(i) above) must be made during
such Limitation Year or within 30 days of the end of the Limitation Year.
Rollover Contributions may be made at any time acceptable to the Administrator
in accordance with Section 4.06 hereof.
<PAGE>
All contributions shall be paid to the Administrator for transfer to the
Trustee, as soon as possible, or, if acceptable to the Administrator and the
Trustee, such contributions may be paid directly to the Trustee. The
Administrator shall transfer such contributions to the Trustee as soon as
possible. The Administrator may establish a payroll deduction system or other
procedure to assist the making of Nondeductible Voluntary Contributions to the
Trust, and the Administrator may from time to time adopt rules or policies
governing the manner in which such contributions may be made so that the Plan
may be conveniently administered.
7.03 Separate Accounts. For each Participant, a separate account shall be
-----------------
maintained for each of the following types of contributions and the income,
expenses, gains and losses attributable thereto:
(a) Salary Reduction Contributions, if selected in the Adoption
Agreement;
(b) Deferred Cash Contributions, if selected in the Adoption
Agreement;
(c) Employer Profit Sharing Contributions, if selected in the
Adoption Agreement;
(d) Employer Matching Contributions, if selected in the Adoption
Agreement;
(e) Nondeductible Voluntary Contributions, if selected in the
Adoption Agreement, with separate accounts maintained for pre-1987 Nondeductible
Voluntary Contributions and post-1986 Nondeductible Voluntary Contributions;
(f) Qualified Nonelective Contributions and Qualified Matching
Contributions, if selected in the Adoption Agreement;
(g) Deductible Voluntary Contributions, if Participants made such
contributions in past years; and
<PAGE>
(h) Rollover Contributions, if, pursuant to Section 4.06 hereof, the
Administrator directs the Trustee to accept such contributions.
In addition, pursuant to Section 8.03 hereof, separate accounts will be
maintained for the pre-break and post-break Employer Contributions made on
behalf of a Participant who has Service excluded from the calculations of
Vesting Years. Notwithstanding the above, if a Participant's rights to one or
more types of Employer Contributions are immediately and fully nonforfeitable
and are subject to the same distribution rules, such types of contributions may
be maintained in a single account.
ARTICLE VIII. VESTING
-------
8.01 When Vested. A Participant shall always have a fully vested and
-----------
nonforfeitable interest in his or her Nondeductible Voluntary Contribution
Account, Deductible Voluntary Contribution Account, Salary Reduction
Contribution Account, Deferred Cash Contribution Account, Qualified Nonelective
Contribution Account and Rollover Account. A Participant's interest in his or
her Employer Profit Sharing Contribution Account and Employer Matching
Contribution Account shall be vested and nonforfeitable at Normal Retirement
Date, death while in Service, Disability, upon termination (including a complete
discontinuance of Employer Contributions) or partial termination of the Plan and
otherwise only to the extent specified in the Adoption Agreement.
8.02 Employer Profit Sharing Contribution and Employer Matching
----------------------------------------------------------
Contribution Forfeitures. If a Participant's employment with the Employer is
- ------------------------
terminated before his or her Employer Profit Sharing Contribution Account and/or
Employer Matching Contribution Account is (are) fully vested in accordance with
Section 8.01, this Section 8.02 shall apply.
<PAGE>
(a) The portion of the Participant's Employer Profit Sharing
Contribution Account and/or Employer Matching Contribution Account which is to
be forfeited pursuant to subsection (b) below shall be treated as follows:
(i) if the Employer has not specified otherwise in the Adoption
Agreement, the forfeiture shall be allocated as if it were an Employer Profit
Sharing Contribution or Employer Matching Contribution, as the case may be, for
the Plan Year following the Plan Year in which such forfeiture occurs, or
(ii) if the Employer so specifies in the Adoption Agreement, the
forfeitures shall be applied to reduce the Employer's obligation to make
Employer Matching Contributions for the Plan Year following the Plan Year in
which the forfeiture occurs, provided that if the amount of the forfeiture to be
reallocated exceeds the Employer's then unsatisfied obligation to make Employer
Matching Contributions for the Plan Year, the forfeiture shall be applied to
reduce the Employer's obligation to make fixed Employer Profit Sharing
Contributions for the Plan Year following the Plan Year in which the forfeiture
occurs. If the Plan does not provide for fixed Employer Profit Sharing
Contributions, or the amount of forfeiture to be reallocated exceeds the
Employer's then unsatisfied obligation to make fixed Employer Profit Sharing
Contributions, the forfeiture shall be reallocated as if it were an additional
discretionary Employer Profit Sharing Contribution made for the Plan Year
following the Plan Year in which the forfeiture occurs.
(b) If the Participant elects to receive a distribution of the value
of his vested account balances in his or her Employer Profit Sharing
Contribution and Employer Matching Contribution Accounts in a lump sum pursuant
to the provisions of Section 10.02(a)(ii) or receives a nonconsensual
distribution pursuant to Section 10.04, the nonvested portion of his or
<PAGE>
her Employer Profit Sharing Contribution and Employer Matching Contribution
Accounts shall be treated as a forfeiture and reallocated pursuant to the
provisions of Section 8.02(a). For this purpose, if the value of a Participant's
vested account balance in his or her Employer Profit Sharing Contribution and
Employer Matching Contribution Accounts 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
contributions within the meaning of Code Section 72(o)(5)(B) for Plan Years
beginning prior to January 1, 1989.
In all other cases, the nonvested portion of a Participant's Employer
Profit Sharing Contribution and Employer Matching Contribution Accounts shall be
treated as forfeiture and reallocated pursuant to the provisions of Section
8.02(a) when such Participant incurs five consecutive One-Year Breaks in
Service.
(c) No forfeitures shall occur solely as a result of withdrawal of
Deductible Voluntary Contributions, Nondeductible Voluntary Contributions, or
Rollover Contributions.
8.03 Reemployment
------------
(a) If a former Participant who was not fully vested in his or her
Employer Profit Sharing Contribution and/or Employer Matching Contribution
Accounts at termination of employment is reemployed after incurring five
consecutive One-Year Breaks in Service, he or she shall have no right to any
forfeited account balance. Any undistributed vested
<PAGE>
portion of his or her Employer Profit Sharing Contribution Account shall be held
in a separate vested Employer Profit Sharing Contribution Account, and future
Employer Profit Sharing Contributions on his or her behalf shall be credited to
a new Employer Profit Sharing Contribution Account until such Participant
becomes fully vested in such Account where upon such Participant's old and new
Employer Profit Sharing Contribution Accounts shall be merged. Any undistributed
vested portion of his or her Employer Matching Contribution Account shall be
held in a separate vested Employer Matching Contribution Account, and future
Employer Matching Contributions on his or her behalf shall be credited to a new
Employer Matching Contribution Account until such Participant becomes fully
vested in such Account whereupon such Participant's old and new Employer
Matching Contribution Accounts shall be merged.
(b) The following provisions shall apply with respect to a former
Participant who was not fully vested in his or her Employer Profit Sharing
Contribution and/or Employer Matching Contribution Accounts at termination of
employment, and who is reemployed before he or she incurs five consecutive One-
Year Breaks in Service:
(i) If no amounts have been forfeited from his or her Employer
Profit Sharing Contribution Account and/or Employer Matching Contribution
Account, the amounts remaining in his or her Employer Profit Sharing
Contribution Account and/or Employer Matching Contribution Account shall be
restored to his or her credit.
(ii) If the nonvested portion of the Participant's Employer
Profit Sharing Contribution Account and/or Employer Matching Contribution
Account has been forfeited, and the Participant has previously received the
vested portions of his or her Employer Profit Sharing Contribution Account
and/or Employer Matching Contribution Account, he or she shall have the right to
repay to the Plan the full amount of such prior distribution. Such repayment
must be made on or before the earlier of five years after the first date on
which the Participant is subsequently reemployed by the Employer, or the close
of the first period of five consecutive OneYear Breaks in Service following the
date of distribution. Upon such repayment, the amount of any such repayment plus
the value of the forfeited portion of such Accounts as of the date of forfeiture
shall be credited to such Accounts.
<PAGE>
(iii) If the Participant is deemed to have received a distribution
from his Employer Profit Sharing Contribution Account and/or Employer Matching
Contribution Account pursuant to Section 8.02(b), and his entire Employer Profit
Sharing Contribution Account and/or Employer Matching Contribution Account has
been forfeited, upon the reemployment of such Participant, the value of his
Employer Profit Sharing Contribution Account and/or Employer Matching
Contribution Account, is of the date of the forfeiture shall be restored to his
credit within a reasonable time after his or her reemployment.
(iv) Restoration of the previously forfeited amount shall be
tiinded by current unallocated forfeitures, additional Employer contributions,
or any combination thereof at the Employer's discretion. Such restoration shall
not be treated as an Annual Addition under Article V.
(v) Any Employer Profit Sharing Contributions to which such
Participant becomes entitled after reemployment shall be credited to his or her
Employer Profit Sharing Contribution Account. Any Employer Matching
Contributions to which such Participant becomes entitled after reemployment
shall be credited to his or her Employer Matching Contribution Account. The
portion of such accounts to which he or she will be entitled upon subsequent
termination of employment will be based upon his or her aggregate Vesting Years
before and after the break.
ARTICLE IX. DISTRIBUTIONS UPON DEATH
------------------------
9.01 Distributions at Death. If a Participant dies at a time when he or she
----------------------
has a vested Account balance, this Section shall apply with respect to such
vested Account balance.
<PAGE>
(a) The Trustee shall, at the direction of the Administrator,
distribute a Participant's vested Account balance in accordance with the
provisions of this Article IX. The Administrator's direction shall include
notification of the Participant's death, the existence or non-existence of a
surviving spouse; the amounts, or method of calculating the amounts, to be
distributed on given dates; and such other information required by the Trustee.
(b) If the Participant has validly named a Beneficiary or
Beneficiaries in compliance with Article XVII, his or her vested Account balance
shall be distributed to the Beneficiary or Beneficiaries so named. To the extent
that any portion of a vested Account balance of a deceased Participant is not
governed by an effective Designation of Beneficiary, that portion of the vested
Account balance shall be distributed to the deceased Participant's Spouse or if
that is not possible, to the estate of the deceased Participant.
(c) If the Participant has validly elected a form of distribution
permitted under Section 10.02 which complies with the applicable provisions of
subsection (d) below (a "permissible form of distribution") with respect to his
or her vested Account balance, such vested Account balance shall be distributed
in accordance with such election whether or not distributions have commenced
prior to the Participant's death. With respect to any portion of a deceased
Participant's vested account balance for which the Participant had not validly
elected a permissible form of distribution prior to his or her death,
distribution shall be made in such permissible form as the Participant's
Beneficiary (or Beneficiaries) may elect in writing with the Trustee. In the
absence of such a valid election by the Beneficiary, the Participant's vested
Account balance shall be distributed as follows:
(i) if distributions have commenced prior to the Participant's
death, in the form selected by the Participant,
<PAGE>
(ii) if distributions have not commenced prior to the
Participant's death, and if the Beneficiary is the Spouse, in substantially
equal installment payments over the Spouse's Applicable Life Expectancy, or, if
the Beneficiary is not the Spouse, in a lump sum.
(d) Distribution to the Participant's Beneficiary shall be made
according to the following provisions:
(i) If the Participant dies before distributions have commenced
on account of the Participant's attainment of his or her First Required
Distribution Year and if the Beneficiary is not the Spouse, the Participant's
entire vested Account balance must be distributed to the Participant's
Beneficiary either (A) on or before December 31 of the calendar year during
which occurs the fifth anniversary of the Participant's death, or (B) in
substantially equal annual or more frequent installments over a period not
exceeding the Applicable Life Expectancy of the oldest Beneficiary (as
determined as of the date of the Participant's death) provided that such
distributions commence before the second January 1 which follows the
Participant's death.
(ii) If the Participant dies before distributions have commenced
on account of the Participant's attainment of his or her First Required
Distribution Year and if the Beneficiary is the Spouse, the Participant's entire
vested Account balance must be distributed to the Participant's Spouse either
(A) in a lump sum payable, or in installments which will be completely paid, on
or before December 31 of the calendar year during which occurs the fifth
anniversary of the date of the Participant's death, or (B) in annual
installments over the Spouse's life or a period not longer than the Spouse's
Applicable Life Expectancy provided that such distribution is commenced before
the later of (1) the first January 1 following the calendar year during which
the Participant would have attained age 70 1/2 had the Participant not died or
(2) the second January 1 which follows the Participant's death.
<PAGE>
(iii) If a Participant dies after distributions have commenced on
account of the Participant's attainment of his or her First Required
Distribution Year, distributions to the Participant's Spouse, Beneficiary or
estate shall continue over a period at least as rapid as the period selected by
the Participant.
(e) If a Beneficiary dies after the Participant (or in the case of a
Beneficiary designated by another Beneficiary, after such other Beneficiary) and
before such deceased Beneficiary receives full payment of the portion of the
vested Account balance to which he or she is entitled, the Trustee shall, upon
direction of the Administrator, distribute the funds to which the deceased
Beneficiary is entitled to the Beneficiary or Beneficiaries validly named on the
most recent Designation of Beneficiary filed by the deceased Beneficiary. To the
extent that any portion of the funds to which the deceased Beneficiary was
entitled are not governed by an effective Designation of Beneficiary, the funds
shall be distributed to the deceased Beneficiary's surviving Spouse, or if that
is not possible, to the estate of the deceased Beneficiary. The Administrator's
direction shall include notification of the Beneficiary's death and the
existence or non-existence of a surviving Spouse and such other information
required by the Trustee. Such funds shall be distributed as follows:
(i) If distributions had commenced before the Participant's
death, distribution to the beneficiary of a deceased Beneficiary shall continue
over a period at least as rapid as that selected by the Participant.
(ii) If the deceased Beneficiary was the surviving Spouse of the
Participant and had not begun to receive distributions from the Participant's
Account at the time of his or her death, the Participant's vested Account
balance shall be distributed to the deceased Beneficiary's Beneficiary according
to the provisions of Sections 9.01(c) - (d) applied as if the
<PAGE>
deceased Beneficiary were the Participant. In addition, the surviving Spouse's
Beneficiaries shall be treated as Beneficiaries during any future application of
this Section.
(iii) If neither subparagraph (i) nor (ii) above apply, the
Participant's vested Account balance shall be distributed to the deceased
Beneficiary's Beneficiary either (A) on or before December 31 of the calendar
year during which occurs the fifth anniversary of the Participant's death or (B)
in substantially equal annual or more frequent installments over the remainder
of the Applicable Life Expectancy of the oldest Beneficiary of the Participant
as determined at the Participant's death provided that distributions commence
before the second January 1 which follows the Participant's death.
9.02 Children as Beneficiaries. For the purposes of Section 9.01, to the
-------------------------
extent provided by Treasury regulations, any distribution paid to a
Participant's child shall be treated as paid to the Participant's surviving
Spouse if the remaining portion of the Participant's vested Account balance with
respect to which such child is a Beneficiary becomes payable to the surviving
Spouse when the child reaches the age of majority (or such other designated
event permitted under the Treasury regulations).
9.03 Nonconsentual Distributions to Beneficiaries. Notwithstanding any
--------------------------------------------
provision of this Article, Article X or Article XXIV to the contrary, the
Administrator may direct the entire vested Account balance of a deceased
Participant (exclusive of his ,:)r her Rollover Account and Deductible Voluntary
Contribution Account) be distributed if the amount distributed will be equal to
$3,500 or less. The Administrator may make such direction without obtaining the
consent of any Beneficiary.
9.04 Eligible Rollover Distributions. If the Participant's Beneficiary is a
-------------------------------
surviving Spouse, the provisions of Section 10.07 shall apply to distributions
made pursuant to Article IX.
<PAGE>
ARTICLE X. DISTRIBUTIONS AFTER SEPARATION FROM SERVICE
-------------------------------------------
10.01 Commencement of Distributions. The Trustee shall, at the direction
-----------------------------
of the Administrator, distribute a Participant's vested Account balance in
accordance with the provisions of this Article X. The Administrator's direction
shall include the amounts, or method of calculating the amounts, to be
distributed on given dates and such other information required by the Trustee.
In the event distribution is to be made in the form of an annuity contract, the
Administrator shall also direct the Trustee with regard to the purchase of such
a contract, including the selection of an appropriate insurance carrier. Except
as otherwise provided in this Article X, distributions of a Participant's vested
Account balance shall commence within 60 days after the close of the Plan Year
during which occurs the later of (a) the Participant's Normal Retirement Date or
(b) the earlier of (i) the Participant's separation from Service or (ii) the end
of his or her First Required Distribution Year. Payment of benefits may, at the
discretion of the Trustee, be paid directly to the Participant or to the
Administrator, as payee agent. If the Participant's vested Account balance
(exclusive of his or her Rollover Account and Deductible Voluntary Contribution
Account) is greater than $3,500, written consent of the Participant is required
for any earlier distribution. A Participant may file an election with the
Administrator to request that distributions commence in accordance with one of
the following options provided that the distribution shall otherwise comply with
the requirements of the Plan (including, but not limited to, Section 10.03):
(A) Distributions commencing before the Participant's
Normal Retirement Date if the Participant is Disabled or experiences a
separation from Service.
(B) Distributions commencing after the normal time of
distribution described above; provided, however, that any such deferred
distribution must
<PAGE>
commence no later than 60 days after the end of the Participant's First Required
Distribution Year.
10.02 Forms of Distribution.
---------------------
(a) Upon a Participant's separation from Service (for reasons other
than death), he or she may file an election with the Administrator to request to
receive a distribution of his or her vested Account balance in one or more of
the following optional forms, provided that the distribution shall otherwise
comply with the requirements of this Plan and provided that the optional forms
have been designated by the Employer in the Adoption Agreement:
(i) Distribution of the Participant's entire vested Account
balance in monthly installments over a period equal to the shorter of 120 months
or the Applicable Life Expectancy. The monthly amount shall normally be the
balance of the Participant's vested Account balance divided by the remaining
number of months in such period, all rounded to the nearest cent. However, the
amount of each monthly installment may be recomputed and adjusted from time to
time no more frequently than monthly as the Trustee may reasonably determine.
(ii) Distribution of the Participant's entire vested Account
balance in a lump sum.
(iii) Distribution of the Participant's entire vested Account
balance in installment payments of a fixed amount, such payments to be made
until exhaustion of the Participant's vested Account balance.
(iv) Distribution in kind.
(v) Any reasonable combination of the foregoing or any
reasonable time or manner of distribution within the above-stated limitations.
<PAGE>
(vi) Any distribution option that is a "protected benefit"
under Code Section 411 (d) (6).
(b) To the extent permitted by applicable law and consistent with
the provisions of this Article X, amounts distributed pursuant to this Article X
shall be allocated on a pro rata basis among the Participant's Accounts and
among the Designated Investments in which each Account is invested; provided,
however, that the Participant may specify to the Administrator an alternative
manner in which distributions shall be so allocated.
10.03 Required Minimum Distributions. In the case of each Participant, the
------------------------------
annual distribution from his or her Account shall be determined by the
Administrator in accordance with the regulations under Code Section 401(a)(9),
including the minimum distribution incidental benefit requirement of Section
1.401(c)(9)-2 of such regulations and must equal or exceed the amount equal to
the quotient obtained by dividing the Participant's Account balance at the
beginning of the calendar year by the lesser of (a) the Applicable Life
Expectancy, or (b) if the Participant's Spouse is not the Beneficiary, the
applicable divisor determined from the table set forth in Q&A-4 of Section
1.401(a)(9)-2 of the regulations under Code Section 401(a)(9).
10.04 Nonconsensual Distributions. Notwithstanding any provision of
---------------------------
Article IX, this Article or Article XXIV to the contrary, the Administrator may
direct that the entire vested Account balance of a Participant (exclusive of his
or her Rollover Account and Deductible Voluntary Contribution Account) be
distributed if the amount distributed will be equal to $3,500 or less. The
Administrator may make such direction (a) only if the Participant has not
previously attained his or her Annuity Starting Date and (b) regardless of
whether the Participant requests or otherwise consents to such distribution.
<PAGE>
10.05 Special One-Time Distribution Election. Notwithstanding any Plan
--------------------------------------
provision to the contrary, distribution on behalf of any Participant, including
a 5% owner, may be made in accordance with the following requirements
(regardless of when such distribution commences):
(a) The distribution is one which would not have disqualified the
Plan under Code Section 401(a)(9) as it was in effect prior to its amendment by
the Deficit Reduction Act of 1984.
(b) The distribution is in accordance with a method of distribution
designated by the Participant whose interest in the Plan is being distributed
or, if the Participant has died, by a beneficiary of such Participant.
(c) Such designation was in writing, was signed by the Participant
or the beneficiary, and was made before January 1, 1984.
(d) The Participant had accrued a benefit under the Plan as of
December 31, 1983.
(e) The method of distribution designated by the Participant or the
beneficiary specifies the time at which distribution will continence, the period
over which distributions will be made, and in the case of any distribution upon
the Participant's death, the Beneficiaries of the Participant are listed in
order of priority.
(f) If the distribution is one to which the provisions of Article
XXIV hereof would otherwise have applied and the Participant is married, the
Participant's Spouse consents to the election in a writing filed with the
Administrator.
A distribution upon death will not be covered by this Section unless the
information in the designation contains the required information described above
with respect to the distributions to be made upon the death of the Participant.
<PAGE>
For any distribution which commenced before January 1, 1984, but continues
after December 31, 1983, the Participant, or the Beneficiary, to whom such
distribution is being made, will be presumed to have designated the method of
distribution under which the distribution is being made if the method of
distribution was specified in writing and the distribution satisfies the
requirement in subsections (a) and (e) above.
If a designation is revoked, any subsequent distribution must satisfy the
requirements of Code Section 401(a)(9) as amended. Any changes in the
designation will be considered to be a revocation of the designation. However,
the mere substitution or addition of another Beneficiary (one not named in the
designation) under the designation will not be considered to be a revocation of
the designation, so long as such substitution or addition does not alter the
period over which distributions are to be made under the designation, directly
or indirectly (for example, by altering the relevant measuring life).
10.06 Distribution on Account of Plan Termination. Subject to the
-------------------------------------------
provisions of Section 11.04, if the Employer terminates the Plan or completely
discontinues making Employer Contributions to the Trust, the Administrator has
discretion pursuant to Section 20.03 below to distribute, or retain in the
Trust, Participants' Account balances.
10.07 Eligible Rollover Distribution.
------------------------------
(a) This Section applies to distributions made by the Trustee 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 Section, a
Distributee may elect, at the time and in the manner prescribed by the
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.
<PAGE>
(b) 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 life expectancies) of the Distributee and the Distributee's designated
beneficiary, or for a specified period of ten years or more; any distribution to
the extent such distribution is required under Code Section 401(a)(9); and the
portion of any distribution that is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation with respect to
employer securities).
(c) An Eligible Retirement Plan is an individual retirement account
described in Code Section 408(a), an individual retirement annuity described in
Code Section 408(b), an annuity plan described in Code Section 403(a), or a
qualified trust described in Code Section 401(a), that accepts the Distributee's
Eligible Rollover Distribution. However, in the case of an Eligible Rollover
Distribution to the surviving Spouse, an Eligible Retirement Plan is an
individual retirement account or individual retirement annuity.
(d) 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.
(e) A Direct Rollover is a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
<PAGE>
If a distribution is one to which Code Sections 401(a)(11) and 417 do not
apply, such distribution may commence less than 30 days after the notice
required under Section 1.411(a)-11(c) of the Income Tax Regulations is given,
provided that:
(i) the Administrator clearly infonns the Participant that the
Participant has a right to a period of at least 30 days after receiving the
notice to consider the decision of whether or not to elect a distribution (and,
if applicable, a particular distribution option), and
(ii) the Participant, after receiving the notice, affirmatively
elects a distribution.
ARTICLE XI. IN-SERVICE WITHDRAWALS
----------------------
11.01 In-service Withdrawal from Participant's Accounts. This Section
-------------------------------------------------
11.01 shall apply only to Participants who remain in the employ of the Employer.
(a) Nondeductible Voluntary Contribution Account. A Participant may
--------------------------------------------
withdraw all or a portion of his or her Nondeductible Voluntary Contribution
Account upon notice to the Administrator; provided, however, that a Participant
who withdraws any amount from his or her Nondeductible Voluntary Contribution
Account which previously generated an Employer Matching Contribution shall be
prohibited from making a nondeductible voluntary contribution for six calendar
months, beginning with the calendar month immediately following the date of
withdrawal.
(b) Rollover Account. A Participant may withdraw all or a portion
----------------
of his or her Rollover Account upon notice to the Administrator.
<PAGE>
(c) Deductible Voluntary Contribution Account. A Participant may
-----------------------------------------
withdraw all or a portion of his or her Deductible Voluntary Contribution
Account upon notice to the Administrator.
(d) Employer Profit Sharing Contribution Account. Upon attainment of
--------------------------------------------
his or her Normal Retirement Date, a Participant may withdraw all or a portion
of his or her Employer Profit Sharing Contribution Account upon notice to the
Administrator. If elected by the Employer in the Adoption Agreement, a
Participant who has not attained his or her Normal Retirement Date but who is
fully vested in his or her Employer Profit Sharing Contribution may submit a
request to the Administrator for a withdrawal of all or a portion of his or her
Employer Profit Sharing Contribution Account. The Administrator may permit such
a withdrawal only if the Participant can demonstrate to the satisfaction of the
Administrator that he or she is suffering from "hardship" as defined in Section
11.02 below.
(e) Employer Matching Contribution Account. Upon attainment of his or
--------------------------------------
her Normal Retirement Date, a Participant may withdraw all or a portion of his
or her Employer Matching Contribution Account upon notice to the Administrator.
If elected by the Employer in the Adoption Agreement, a Participant who has not
attained his or her Normal Retirement Date but who is fully vested in his or her
Employer Matching Contribution Account may submit a request to the Administrator
for a withdrawal of all or a portion of his or her Employer Matching
Contribution Account. The Administrator may permit such a withdrawal only if the
Participant can demonstrate to the satisfaction of the Administrator that he or
she is suffering from "hardship" as defined in Section 11.02 below.
(f) Salary Reduction Contribution Account, Deferred Cash Contribution
-----------------------------------------------------------------
Account and Qualified Nonelective Contribution Account. Upon attainment of his
- ------------------------------------------------------
or her Normal
<PAGE>
Retirement Date, a Participant may withdraw all or a portion of his or her
Salary Reduction Contribution Account, Deferred Cash Contribution Account and/or
Qualified Nonelective Contribution Account upon notice to the Administrator. If
elected by the Employer in the Adoption Agreement, a Participant who has not
attained his or her Normal Retirement Date may submit a request to the
Administrator for a withdrawal of all or a portion of his or her Salary
Reduction Contribution Account or Deferred Cash Contribution Account (but not
earnings on such accounts after December 31, 1988). The Administrator may permit
such a withdrawal only if the Participant can demonstrate that he or she is
suffering from "hardship" as defined in Section 11.02 below.
11.02 Rules Governing Hardship Withdrawals. A Participant shall be
------------------------------------
considered to be suffering from "hardship" only if the distribution is both made
on account of an immediate and heavy financial need of the Participant and is
necessary to satisfy such financial need, determined in accordance with
objective, nondiscretionary standards as set forth in this Section.
(a) An "immediate and heavy financial need" shall be deemed to
include, and shall be limited to, the following:
(i) Expenses incurred or necessary for medical care described
in Code Section 213(d) of the Participant, his or her Spouse, or any dependents
of the Participant (as defined in Code Section 152);
(ii) Purchase (excluding mortgage payments) of a principal
residence for the Participant;
(iii) Payment of tuition, related educational fees and room and
board for the next 12 months of post-secondary education for the Participant,
his or her Spouse, children, or dependents; or
<PAGE>
(iv) The need to prevent the eviction of the Participant from
his or her principal residence or foreclosure on the mortgage of the
Participant's principal residence.
(b) A distribution will be treated as "necessary" to satisfy an
immediate and heavy financial need of the Participant only if:
(i) The Participant has obtained all distributions, other than
hardship distributions, and all nontaxable loans under all plans maintained by
the Employer;
(ii) All plans maintained by the Employer provide that the
Participant's Salary Reduction Contributions and/or Deferred Cash Contributions
(and Nondeductible Voluntary Contributions) will be suspended for 12 months
after the receipt of the hardship distribution;
(iii) The distribution is not in excess of the amount of an
iiinmediate and heavy financial need (including amounts necessary to pay any
federal, state or local income taxes or penalties reasonably anticipated to
result from the distribution); and
(iv) All plans maintained by the Employer provide that the
Participant may not make Salary Reduction Contribution and/or Deferred Cash
Contributions for the Participant's taxable year immediately following the
taxable year of the hardship distribution in excess of the applicable limit
under Code Section 402(g) for such taxable year less the amount of such
Participant's Salary Reduction Contributions and/or Deferred Cash Contributions
for the taxable year of the hardship distribution.
11.03 Manner of Distribution. A distribution under this Article shall be
----------------------
made in a lump-sum payment to the Participant. In each case in which a partial
distribution is made from a Participant's Account, the amount distributed from
such Account pursuant to this Article XI shall be allocated on a pro rata basis
among the Designated Investments in which such Account is
<PAGE>
invested; provided, however, that the Administrator or the Participant may
specify an alternative manner in which such distribution shall be so allocated.
11.04 Limitation on Distributions. Notwithstanding anything to the
---------------------------
contrary elsewhere herein, the amounts credited to a Participant's Salary
Reduction Contribution Account and Deferred Cash Contribution Account, and
Qualified Nonelective Contribution Account shall not be distributable to a
Participant or his or her Beneficiary until the Participant separates from
Service on account of retirement, disability, death or termination of employment
or upon the occurrence of one of the following events:
(a) Termination of the Plan without the establishment of another
defined contribution plan, other than an employee stock ownership plan (as
defined in Code Section 4975(e) or Section 409) or a simplified pension plan as
defined in Code Section 408(k).
(b) The disposition by a corporation to an unrelated corporation of
substantially all of the assets (within the meaning of Code Section 409(d)(2))
used in a trade or business of such corporation if such corporation continues to
maintain this Plan after the disposition, but only with respect to Participants
who continue employment with the corporation acquiring such assets.
(c) The disposition by a corporation to an unrelated entity of such
corporation interest in a subsidiary (within the meaning of Code Section
409(d)(3)) if such corporation continues to maintain this Plan, but only with
respect to Participants who continue employment with such subsidiary.
(d) The attainment of age 59-1/2 by the Participant.
<PAGE>
(e) In the case of the Participant's Salary Reduction Contribution
Account and Deferred Cash Contribution Account, the hardship of the Participant
as described in Section 11.02.
All distributions that may be made pursuant to one or more of the foregoing
distributable events are subject to the spousal and Participant consent
requirements (if applicable) contained in Code Sections 41 1 (a)(1 1) and 417.
In addition, distributions made after March 31, 1988, that are triggered by an
event enumerated in Sections 11.04(a)-(c) must be made in a lump sum.
ARTICLE XII. LOANS
-----
12.01 Availability of Loans. If, in the Adoption Agreement, the Employer
---------------------
has specified that loans to Participants are permitted, the Loan Trustee shall,
upon the direction of the Administrator, make one or more loans, including any
renewal thereof, to a Participant who is an Employee or, in the discretion of
the Administrator, a former Employee (other than a Participant who is an Owner-
Employee). Any such loan shall be subject to such terms and conditions as the
Administrator shall determine pursuant to a written uniform policy adopted by
the Administrator for this purpose, which policy shall be incorporated herein as
part of the Plan, at least as restrictive as required by this Article, and,
contain specific provisions setting forth: (a) the identity of the person or
positions authorized to administer the loan program; (b) a procedure for
applying for loans; (c) the basis upon which loans will be approved or denied;
(d) limitations, in addition to those described in this Article XII, on the
types and amount of loans offered; (e) the procedure under the program for
determining a reasonable rate of interest; (f) the types of collateral which may
secure a loan; and (g) the events constituting default and the steps that will
be taken to preserve plan assets in the event of such default.
<PAGE>
12.02 Spousal Consent Required. If this Plan is adopted as a plan which is
------------------------
subject to the special annuity rules discussed in Article XXIV below, to obtain
a loan, a Participant must obtain the consent of his or her Spouse, if any,
within the 90-day period before the time his or her Account balance is used as
security for the loan. Furthermore, a new consent is required if an increase in
the amount of the security is necessary and any of the remaining balance of the
Account is used. A spousal consent to a loan must be in writing, witnessed by a
Plan representative or notary public, and acknowledge that as a result of a
default in repayment of the loan the Spouse may be entitled to a lesser death
benefit than he or she would otherwise receive under the Plan. A Spouse shall be
deemed to consent to any loan which is outstanding at the time of his or her
marriage to the Participant.
12.03 Equivalent Basis. No such loan may be made to a disqualified person
----------------
within the meaning of Code Section 4975(e), unless such loans are available to
all active Participants on a reasonably equivalent basis and are not made
available to Highly Compensated Employees in an amount which, when stated as a
percentage of any such Participant's Account, is greater than is available to
any other Participants.
12.04 Limitation on Amount. The amount of any such loan, when added to the
--------------------
outstanding balance of all other loans from the Trust (and any other qualified
retirement plans of the Employer) to the Participant, shall not exceed the
lesser of:
(a) $50,000 reduced by the amount by which (i) the highest
outstanding balance of all such loans to the Participant during the one-year
period ending on the day before the date on which the loan is made exceeds (ii)
the outstanding balance of such loans to the Participant on the date on which
such loan is made; or
<PAGE>
(b) the amount determined pursuant to the following chart:
<TABLE>
<CAPTION>
Vested Maximum
Account Balance Amount of Loan
<S> <C>
$0 - $100,000 50% of vested Account balance
over $100,000 $50,000.
</TABLE>
The value of the Participant's Account balance shall be as determined by
the Administrator; provided, however, that such determination shall in no event
take into account the portion of the Participant's Account attributable to the
Participant's Deductible Voluntary Contribution Account.
12.05 Maximum Term. The term of any such loan shall not exceed five years;
------------
provided, however, that such limitation shall not apply to any loan used for the
purchase of a dwelling unit which within a reasonable time is to be used
(determined at the time the loan is made) as a principal residence of the
Participant.
12.06 Promissory Note. Any such loan shall be evidenced by a promissory
---------------
note executed by the Participant and payable to the Loan Trustee, on the
earliest of (i) a fixed maturity date meeting the requirements of Section 12.05
above, (ii) the Participant's death (iii) the Participant's separation from
service if the loan policy does not permit loans to former Employees. Such
promissory note shall evidence such terms as are required by this Article.
12.07 Adequate Security. Each loan and related promissory note shall be
-----------------
secured by an assignment of no more than 50 percent of the Participant's Account
to the Loan Trustee. A Participant may also provide such other or additional
security for the loan as the Loan Trustee may require or permit.
12.08 Repayment By Payroll Reduction. In addition to executing a
------------------------------
promissory note, the Participant who desires to take out a loan shall enter into
a payroll reduction agreement with the
<PAGE>
Employer or such other form of repayment agreement with the Employer as the
Administrator permits from time to time. The Participant shall enter into such
agreement on or before the date when the loan is made. Such agreement shall
provide that, if the Participant defaults on the loan while he or she is still
an Employee, the Employer shall be entitled to reduce the Participant's pay in
sufficient increments to ensure that, over a reasonable period of time, the
amount with respect to which the Participant has defaulted plus any interest
owed and any costs of collection incurred by the Loan Trustee will be repaid to
the Trust. The Employer shall promptly pay to the Loan Trustee all amounts that
the Employer withholds from a Participant's pay pursuant to such a payroll
reduction agreement or other repayment agreement. The Administrator and/or Loan
Trustee shall credit all amounts withheld from a Participant's pay or collected
pursuant to a repayment agreement to the relevant Participant's Account as
payments of amounts owed on the note.
12.09 Interest. Any such loan shall be subject to a reasonable rate of
--------
interest.
12.10 Level Amortization. A Participant shall repay the principal of any
------------------
loan according to a schedule which shall provide for level amortization over a
period of the loan, with payments to be made no less frequently than quarterly.
12.11 Additional Repayment Rules. If a Participant fails to make a payment
--------------------------
in accordance with the schedule developed in accordance with the requirements of
Section 12.10 above, the Administrator shall notify the Participant in writing
that if the relevant loan principal and accumulated and unpaid interest thereon
is not paid within 30 days, action will be taken to collect such amounts plus
any cost of collection. When collecting such amounts, the Loan Trustee may
utilize any of the remedies available to it including those provided by the
promissory note, a payroll reduction agreement entered into pursuant to Section
12.08 and applicable law. If
<PAGE>
a note is not paid when the Participant's benefits hereunder are to be
distributed, then any unpaid portion of such loan, and unpaid interest thereon,
and any costs of collection incurred by the Loan Trustee shall be deducted by
the Loan Trustee from the Participant's Account before benefits are paid from or
purchased out of the Account. Such deduction shall, to the extent thereof,
cancel the indebtedness of the Participant. Notwithstanding any implication of
the preceding sentence to the contrary, no attachment of the Participant's
Account which is subject to Section 11.04 shall occur until a distributable
event occurs as specified in Section 11.04.
12.12 Accounting. Loans shall be made on a pro rata basis among the
----------
Participant's Accounts and among the Designated Investments in which each
Account is invested and shall be treated as an investment of each such Account,
provided, however, that the Administrator or the Participant may specify an
alternative manner in which such loan shall be so allocated. Notwithstanding the
foregoing, no loans shall be made from the Participant's Deductible Voluntary
Contribution Account, and without the consent of the Distributor, no loans shall
be made from the Participant's Accounts invested in qualifying employer
securities.
12.13 Administration of Loans. Except as expressly provided otherwise in
-----------------------
this Article XII, the Administrator shall have the sole responsibility for all
administrative tasks relating to loans made pursuant hereto including, but not
limited to, the issuance of any appropriate notices or information returns
required under the Code or other applicable law.
12.14 Precedence. This Article overrides Section 18.01 below.
----------
ARTICLE XIII. TRUST PROVISIONS
----------------
13.01 Manner of Investment. Except as expressly provided otherwise herein,
--------------------
all contributions made pursuant to the Plan and any assets in which such
contributions shall be invested or reinvested shall be
<PAGE>
held in trust by one or more Trustee pursuant to the provisions of this
Agreement of Trust. Certain assets of the Plan (including, but not limited to,
insurance contracts and shares of securities of an Employer that are not
publicly traded) may be held by the Administrator or such other entity as the
Trustee may appoint as subcustodian on behalf of the Trustee. Except to the
extent that a Participant's Account is invested in a loan pursuant to Article
XII hereof, the Account of a Participant may only be invested and reinvested in
Designated Investments, unless the Distributor consents to such other
investments. If the Administrator or the Participant, as the case may be, has
elected to have a portion of an Account invested in investments other than
Designated Investments, and the Distributor has given its consent, the Trustee
shall invest such amount in such investments, directed by the Administrator or
other person with investment discretion and in accordance with Section 13.03
hereof. Both the Designated Investments and investments other than Designated
Investments available for investment may be limited by the Administrator who may
impose separate rules for separate accounts or for terminated Participants.
Investment in more than one Designated Investment is not permitted unless the
value of the Participant's Account and the value of the investment in each
additional Designated Investment exceed amounts from time to time determined by
the Distributor.
If the Trustee invests in one or more collective investment funds (whether
or not the Trustee acts as trustee thereof) for the collective investment of
assets of employee pension or profit-sharing trusts pursuant to Revenue Ruling
81-100, and such collective investment fund constitutes a qualified trust under
the applicable provisions of the Code, such collective investment ftinds shall
constitute part of the Plan, and the instrument creating such ftinds shall
constitute part of this Agreement of Trust while any portion of the Trust is so
invested.
<PAGE>
13.02 Investment Decision.
-------------------
(a) The decision as to the investment of an Account shall be made
by the person designated in the Adoption Agreement or as provided in this
Section 13.02, and the Trustee shall have no responsibility for determining how
an Account is to be invested or to see that investment directions communicated
to it comply with the terms of the Plan. Each such person, including the
Administrator, a Participant or a Beneficiary, is hereby designated a "named
fiduciary" within the meaning of Sections 402(a)(2) and 403(a)(1) of the Act,
with respect to the Accounts over which he or she may exercise investment
control. If the decision is made by the Participant, then (subject to Section
13.02(d) below) the Participant shall convey investment instructions to the
Administrator and the Administrator shall promptly transmit those instructions
to the Trustee. Further, if the decision is to be made by the Participant, the
right to make such a decision shall remain with the Participant upon retirement
and shall pass to his or her Beneficiary upon death; provided, however, that
-------- -------
upon termination of Service by a Participant, the Administrator shall have the
right to make investment decisions with respect to the portion of such
Participant's Account which is not vested pursuant to Article VIII and any
suspense account maintained under the Plan. In the event that all or a portion
of a Participant's Account is assigned to an "alternate payee" pursuant to a
"qualified domestic relations order," such alternate payee shall have the right
to make investment decisions with respect to such portion and any earnings
thereon to the same extent as the Participant.
(b) The person designated to make the decision as to the investment
of an Account may direct that the investment medium of an Account be changed,
provided that no such change may be made from or to an investment other than a
Designated Investment except to the extent permitted under Section 13.01 above
and by the terms of that other investment vehicle.
<PAGE>
Notwithstanding the foregoing, the Administrator may from time to time establish
uniform, nondiscretionary rules with respect to the frequency or times at which
changes in the investment medium of the Account may be made. If the Distributor
determines in its own judgment that there has been trading of Designated
Investments in the Accounts of the Participants, any Designated Investment may
refuse to sell to such Accounts. When an investment is being made or changed,
the person designated to do so shall specify the type of Account to which the
change refers.
(c) Except as provided in subsection (a) above, if any decision as to
investments is to be made by the Administrator, it shall be made on a uniform
basis with respect to all Participants.
(d) The Administrator and the Trustee may adopt procedures permitting
Participants to convey their investment instructions directly to the Trustee or
to the transfer agent for the Designated Investment or for any other investment
permitted by the Distributor.
(e) Whenever a Participant is the person designated to make the
decision as to the investment of an Account, the Administrator shall ascertain
that the Participant has received a copy of the current prospectus relating to
any Designated Investment in which such Account is to be invested where required
by any state or federal law. With respect to contributions designated for
investment by a Participant, by remitting such a contribution to the Trustee,
the Administrator shall be deemed to warrant to the Trustee for the benefit of
the appropriate Designated Investment and its principal underwriter (if
applicable) that the Participant has received all such prospectuses. By
remitting any other contribution to the Trustee, the Administrator shall be
deemed to warrant to the Trustee for the benefit of the appropriate Designated
Investment and its principal underwriter (if applicable) that the Administrator
has received a current prospectus of
<PAGE>
any Designated Investment in which the contribution is to be invested where
required by any state or federal law.
13.03 Directed Powers of the Trustee. To the extent that a portion of the
-------------------------------
Trust assets are invested other than in Designated Investments pursuant to
Section 13.01 above, the Trustee shall have the following powers and authority
in the administration of the Trust to be exercised at the direction of the
Administrator or other person with investment discretion:
(a) To purchase, receive or subscribe for any securities or other
property and to retain in trust such securities or other property.
(b) To sell for cash or credit, to convert, redeem, or exchange
securities for other securities or other property, to tender securities pursuant
to tender offers, or otherwise to dispose of any securities or other property at
any time held by the Trustee.
(c) To settle, compromise, or submit to arbitration any claims,
debts or damages, due or owing to or from the Trust Fund, to commence or defend
suits or legal proceedings and to represent the Trust Fund in all suits or legal
proceedings; provided, however, that the Trustee shall have the right, in its
sole discretion, to bring, join in or oppose any such suits or legal proceedings
where it may be adversely affected by the outcome, individually or as Trustee,
or where it is advised by counsel that such action is required on its part by
the Act or other applicable law.
(d) To exercise any conversion privilege and/or subscription right
available in connection with any securities or other property at any time held
by it; to oppose or to consent to the reorganization, consolidation, merger or
readjustment of the finances of any corporation, company or association, or to
the sale, mortgage, pledge or lease of the property of any corporation, company
or association, the securities of which may at any time be held by it and to
<PAGE>
do any act with reference thereto, including the exercise of options, the making
of agreements or subscriptions and the payment of expenses, assessments or
subscriptions which may be deemed necessary or advisable in connection
therewith, and to hold and retain any securities or other property which it may
so acquire, and to deposit any property with any protective, reorganization or
similar committee or with depositories designated thereby, to delegate power
thereto, and to pay or agree to pay part of the expenses and compensation of any
such committee and any assessments levied with respect to property so deposited;
provided, however, that the Trustee shall not be responsible for taking any
action or exercising any right described in this subsection (d) with respect to
securities or other property of the Trust Fund unless, at least three business
days prior to the date on which such power is to be exercised, it or its agents
(i) are in actual possession or control of such securities or property (if such
possession or control is necessary to exercise any such power) and (ii) have
received instructions from the Administrator to exercise any such power.
(e) To exercise, personally, by proxy or by general or limited
power of attorney, any right appurtenant to any securities or other property
held by it at any time.
(f) To invest and reinvest all or any part of the assets of the
Trust Fund, and to hold part of the Trust Fund uninvested.
(g) To employ suitable agents and counsel and to pay their
reasonable expenses and compensation as expenses of the Trust.
(h) To purchase, enter into, sell, hold and generally deal in any
i-nanner in and with contracts for the immediate delivery of financial
instruments of any issuer or of any other property, to grant, purchase, sell,
exercise, permit to exercise, permit to be held in escrow and otherwise to
acquire, dispose of, hold and generally deal in any manner with or in all forms
of
<PAGE>
options in any combination; and, in connection with its exercise of the powers
hereinabove granted, to deposit any securities or other property as collateral
with any broker-dealer or other person, and to take all other appropriate action
in connection with such contracts.
(i) To deposit or pledge any securities or other property as
collateral with any broker-dealer or other person (including the Trustee), and
to permit securities or other property to be held by or in the name of others or
in transferable form.
(j) To borrow money, with or without security, from any legally
permissible source, to encumber property of the Trust Fund to secure repayment
of such indebtedness, to assume liens on properties acquired by the Trust, and
to acquire properties subject to liens.
(k) To form corporations and to create trusts to hold title to any
securities or other property of the Trust Fund.
(l) To acquire and hold securities which constitute qualifying
employer securities with respect to a Plan (as such term is defined in Section
407 of the Act); provided that the Trustee shall have no responsibility for
determining whether such acquisition or holding complies with the Act; and
provided further that the Administrator shall be responsible for filing all
reports required under federal or state securities laws with respect to the
Trust Fund's ownership of qualifying employer securities (including without
limitation any reports required under Section 13 or 16 of the Securities
Exchange Act of 1934, as amended) and shall immediately notify the Trustee in
writing of any requirement to stop purchases or sales of employer securities
pending the filing of any report, and the Trustee shall provide to the
Administrator such information on the Trust Fund's ownership of qualifying
employer securities as lihe Administrator may reasonably request in order to
comply with federal or state securities laws and the Act;
<PAGE>
(m) To convert any monies into any currency through foreign exchange
transactions (which may be effected with the Trustee or an affiliate of the
Trustee to the extent permitted under the Act); and
(n) Generally, to do all acts, whether or not expressly authorized,
which may be considered necessary or desirable for the protection or enhancement
of the Trust Fund or to carry out any of the foregoing powers and the purposes
of the Trust Fund.
13.04 Discretionary Powers of the Trustee. The Trustee shall have the
-----------------------------------
following powers and authority in the administration of the Trust to be
exercised in its sole discretion:
(a) To register any securities held by it hereunder in its own name
or in the name of a nominee with or without the addition of words indicating
that such securities are held in a fiduciary capacity and to hold any securities
in bearer form and to deposit any securities or other property in a depository,
clearing corporation, or similar corporation, either domestic or foreign.
(b) To make, execute and deliver, as Trustee hereunder, any and all
instruments in writing necessary or proper for the accomplishment of any of the
powers referred to in Section 13.03 or in this Section 13.04.
(c) To employ suitable agents, custodians, subcustodians, and counsel
including but not limited to entities which are affiliates of the Trustee and,
subject to applicable law, to pay their reasonable compensation and expenses as
expenses of the Trust.
(d) With the consent of the Administrator, to loan securities held in
the Trust to brokers or dealers or other borrowers under such terms and
conditions as the Trustee, in its absolute discretion, deems advisable, to
secure the same in any manner permitted by law and the provisions of this
Agreement, and during the term of any such loan, to permit the loaned securities
to be transferred into the name of and voted by the borrowers or others, and, in
connection with
<PAGE>
the exercise of the powers hereinabove granted, to hold any property deposited
as collateral by the borrower pursuant to any master loan agreement in bulk,
together with the unallocated interests of other lenders, and to retain any such
property upon the default of the borrower, whether or not investment in such
property is authorized under this Agreement, and to receive compensation
therefor out of any amounts paid by or charged to the account of the borrower.
13.05 Limitations in Investments. Notwithstanding the above, the following
--------------------------
restrictions on the investment of a Participant's Account shall apply:
(a) No part of a Participant's Deductible Voluntary Contribution
Account may be used to purchase life insurance.
(b) At most, less than one-half of the aggregate Employer
Contributions allocated to a Participant's Employer Contribution Account may be
used to pay premiums attributable to the purchase of ordinary life insurance
contracts (life insurance contracts with both nondecreasing death benefits and
non-increasing premiums).
(c) No more than one-quarter of aggregate Employer Contributions
allocated to a Participant's Account may be used to pay premiums on term life
insurance contracts, universal life insurance contracts, and all other life
insurance contracts which are not ordinary life insurance contracts.
(d) One-half of the amount used to pay premiums on ordinary life
insurance contracts plus the amount used to pay premiums on all other life
insurance contracts may not exceed an amount equal to one-quarter of the
aggregate Employer Contributions allocated to a Participant's Account.
(e) No part of a Participant's Account shall be applied towards the
,Purchase of any insurance contract unless (i) the Trustee applies for and is
the owner of such contract, (ii)
<PAGE>
the contract provides that all contract proceeds shall be paid to the Trustee,
and (iii) the contract provides for distributions to the Participant's Spouse,
as necessary to ensure compliance with the applicable requirements of Articles
IX, X, and XXIV.
(f) Amounts used to pay premiums on, or purchase, any insurance
contract(s) on the life of a Participant shall be paid first from that portion
of the Participant's Nondeductible Voluntary Contribution Account which
represents Nondeductible Voluntary Contributions made by the Participant prior
to January 1, 1987, provided that the Plan, as of May 5, 1986, permitted
withdrawal of Nondeductible Voluntary Contributions before separation from
Service. Amounts used to pay premiums on, or purchase, any insurance contract(s)
on the life of a Participant which exceed that portion of the Participant's
Nondeductible Voluntary Contribution Account described in the preceding sentence
shall be paid first from the portion of the Participant's Nondeductible
Voluntary Contribution Account which represents the remaining Nondeductible
Voluntary Contributions made by the Participant and then, except as provided in
paragraph (a) above, from such other of the Participant's Accounts as the
Administrator directs pursuant to the Participant's election.
(g) Except as provided in Section 22.01, any insurance contracts on
the life of a Participant will be converted to cash or distributed to the
Participant as of the Participant's Annuity Starting Date.
(h) Any dividends or credits earned on insurance contracts) will be
allocated to the Account of the Participant for whose benefit the contract is
held, provided, however, that if an insurance contract was purchased with a
Participant's Nondeductible Voluntary Contributions, such dividends or credits
which are attributable to the Participant's Nondeductible Voluntary
<PAGE>
Contributions shall, to the extent treated as a return of premium, be credited
to the Participant's Nondeductible Voluntary Contribution Account.
If a Participant's Account is invested in one or more insurance contracts,
the Trustee is required to pay over all proceeds of the contracts) to the
Participant's Beneficiary or Beneficiaries in accordance with the terms of this
Plan and under no circumstances shall the Trust retain any contract proceeds.
13.06 Appointment of Investment Manager. Subject to Sections 13.01 and
---------------------------------
13.03 above, the Administrator may designate, and the Employer may contract
with, Scudder, Stevens & Clark Inc., or its successor or any affiliate, or any
other qualified entity to act as investment manager (within the meaning of the
Act), and may at any time revoke such designation. If an investment manager is
so designated, the Trustee shall follow all investment directions given by the
investment manager with respect to the retention, investment and reinvestment of
the Plan assets to the extent they are under the control of such investment
manager. If permitted by the Trustee, the investment manager may issue orders
for the purchase and sale of securities, including orders through any affiliate
of such investment manager. Such an investment manager is specifically allowed
to direct or make investments in any Designated Investment and any other
investments to which the Distributor has given its consent. The Trustee shall
not be liable for following any direction given by, or any actions of, an
investment manager so appointed.
13.07 Trustee: Number, Qualifications and Majority Action.
---------------------------------------------------
(a) The Employer shall designate one or more Trustees for each Trust.
Any natural person and any corporation having power under applicable law to act
as a trustee of a pension or profit sharing plan may be a Trustee. No person
shall be disqualified from being a Trustee by being employed by the Employer, by
being the Administrator, by being a trustee under
<PAGE>
any other qualified retirement plan of the Employer or by being a Participant in
this Plan or such other qualified plan.
(b) A Trustee holding office as sole Trustee with respect to a Trust
hereunder shall have all the powers and duties herein given to the Trustees
hereunder. When the number of Trustees with respect to a Trust is three, any two
of them may act, but the third Trustee shall be promptly informed of the action.
When there are two or more Trustees with respect to a Trust, they may, by
written instrument conununicated to the Employer and the Administrator, allocate
among themselves the powers and duties herein given to the Trustee hereunder. If
such an allocation is made, to the extent permitted by applicable law, no
Trustee shall be liable either individually or as a trustee for loss to the Plan
from the acts or omissions of another Trustee with respect to duties allocated
to such other Trustee.
13.08 Change of Trustee.
-----------------
(a) Any Trustee may resign as Trustee upon notice in writing to the
Employer, and the Employer may remove any Trustee upon notice in writing to each
Trustee. The removal of a Trustee shall be effective immediately, except that a
corporation serving as a Trustee shall be entitled to 60 days' notice which it
may waive, and the resignation of a Trustee shall be effective immediately,
provided that, if the Trustee is the sole Trustee, neither a removal nor a
resignation of a Trustee shall be effective until a successor Trustee has been
appointed and has accepted the appointment. If within 60 days of the delivery of
the written resignation or removal of a sole Trustee, another Trustee shall not
have been appointed and have accepted, the resigning or removed Trustee may
petition any court of competent jurisdiction for the ,appointment of a successor
Trustee or may terminate the Plan pursuant to Section XVIII of the Prototype
Plan. The Trustee shall not be liable for the acts and omissions of any
successor Trustee.
<PAGE>
(b) At any time when the number of Trustees is one or two the
Employer may but need not appoint, respectively two or one additional Trustees.
Such an appointment and the acceptance thereof shall be in writing, and shall
take effect upon the delivery of written notice thereof to all the Trustees and
the Administrator and such acceptance by the appointed Trustee, provided that if
a corporation is a Trustee then in the absence of its consent, such an
appointment of an additional or successor Trustee shall not become effective
until 60 days after its receipt of notice.
(c) Although any Employer adopting the Plan may choose any Trustee
who is willing to accept the Trust, the Distributor or its successor may make or
may have made tentative standard arrangements with any bank or trust company
with the expectation it will be used as the Trustee by a substantial group of
Employers. It is also contemplated that more favorable results can be obtained
with a substantial volume, of business, and that it may become advisable to
remove such bank or trust company as Trustee and substitute another Trustee.
Therefore, anything in the prior two subsections notwithstanding, each Employer
adopting this Plan hereby agrees that the Distributor may, upon a date specified
in a notice of at least 30 days to the affected Employer and in the absence of
written objection by the Employer received by the Distributor before such date,
(i) remove any Trustee and in that case, or if such a Trustee has resigned as to
a group of Employers, (ii) appoint a successor Trustee, provided such action is
taken with respect to all Employers similarly circumstanced of which the
Distributor has knowledge, and provided such notice is given in writing and
mailed postage prepaid to the Employer at the latest address furnished to the
Distributor directly or supplied to it by such Trustee which is to be succeeded.
If within 60 days after a Trustee's resignation or removal pursuant to this
subsection (i), the Distributor has not appointed a successor which has accepted
such appointment the resigning or
<PAGE>
removed Trustee may petition an appropriate court for the appointment of its
successor. The resigning or removed Trustee shall not be liable for the acts and
omissions of such successor.
(d) Successor Trustees qualifying under this Section shall have all
rights and powers and all the duties and obligations of original Trustees.
13.09 Valuation. Annually, on the Valuation Date, or more frequently in
---------
the discretion of the Trustee, the assets of each Trust shall be valued at fair
market value and the accounts of the Trust shall be proportionately adjusted to
reflect income, gains, losses or expenses, if the system of accounting does not
directly accomplish all such adjustments. Each account shall share in income
gains, losses, or expenses connected with an asset in which it is invested
according to the proportion which the account's investment in the asset bears to
the total amount of the Trust Fund invested in the asset. Any dividends or
credits earned on insurance contracts shall be allocated to the specific account
of the Participant from which the funds originated for investment in the
contract.
The Trust Fund shall be administered separately from, and shall not include
any assets being administered under, any other plan of an Employer. Interim
valuations, if any, shall be applied uniformly and in a non-discriminatory
manner for all Employees.
13.10 Registration. Any assets in the Trust Fund may be registered in the
------------
name of the Trustee or any nominee designated by the Trustee.
13.11 Certifications and Instructions.
-------------------------------
(a) Any pertinent vote or resolution of the Board of Directors of the
Employer (if it is a corporation) shall be certified to the Trustee over the
signature of the Secretary or an Assistant Secretary of the Employer and under
its corporate seal. The Employer shall promptly
<PAGE>
furnish to the Trustee appropriate certification evidencing the appointment and
termination of the individual or individuals serving as Administrator under
Section 14.01 of the Plan.
(b) The Administrator shall furnish to the Trustee appropriate
certification of the individual or individuals authorized to give notice on
behalf of the Administrator and providing specimens of their signatures. All
requests, directions, requisitions for money and instructions by the
Administrator to the Trustee shall be in writing and signed. There may be
standing requests, directions, requisitions or instructions to the extent
acceptable to the Trustee.
13.12 Accounts and Approval.
---------------------
(a) The Trustee shall keep accurate and detailed accounts of all
investments, receipts and disbursements and other transactions hereunder, and
all books and records relating thereto shall be open at all reasonable times to
inspection and audit by any person or persons designated by the Administrator or
by the Employer.
(b) Within 90 days following the close of each Plan Year the Trustee
may, and upon the request of the Employer or the Administrator shall, file with
the Administrator and the Employer a written report setting forth all securities
or other investments (including insurance contracts) purchased and sold, all
receipts, disbursements and other transactions effected by it during the period
since the date covered by the next prior report, and showing the securities and
other property held at the end of such period, and such other information about
the Trust Fund as the Administrator shall request. Unless the Employer or
Administrator, within 90 days from the date of mailing of such report, objects
to the contents of such report, the report shall be deemed approved. Any such
objections shall set forth the specific grounds on which they are based.
13.13 Taxes. The Trustee may assume that any taxes assessed on or in
-----
respect of the Trust Fund are lawfully assessed unless the Administrator shall
in writing advise the Trustee that
<PAGE>
in the opinion of counsel for the Employer such taxes are not lawfully assessed.
In the event that the Administrator shall so advise the Trustee, the Trustee, if
so requested by the Administrator and suitable provision for their indemnity
having been made, shall contest the validity of such taxes in any manner deemed
appropriate by the Administrator or counsel for the Employer. The word "taxes"
in this Article shall be deemed to include any interest or penalties that may be
levied or imposed in respect to any taxes assessed. Any taxes, including
transfer taxes incurred in connection with the investment or reinvestment of the
assets of the Trust Fund that may be levied or assessed in respect to such
assets shall, if allocable to the Accounts of specific Participants, be charged
to such Accounts, and if not so allocable, they shall be equitably apportioned
among all such Participants' Accounts.
13.14 Employment of Counsel. The Trustee may employ legal counsel (who may
---------------------
be counsel for the Employer) and shall be fully protected in acting or
refraining from acting, upon such counsel's advice in respect to any legal
questions.
13.15 Compensation of Trustee. An individual Trustee who is an Employee of
-----------------------
the Employer shall not be compensated for services as Trustee. A corporation, or
an individual who is not an Employee of the Employer, serving as a Trustee shall
be entitled to reasonable compensation for services; such compensation shall be
paid in accordance with Article XV.
13.16 Limitation of Trustee's Liability.
---------------------------------
(a) The Trustee shall have no duty to take any action other than as
herein specified, unless the Administrator shall furnish it with instructions in
proper form and such instructions shall have been specifically agreed to by it,
or to defend or engage in any suit unless it shall have first agreed in writing
to do so and shall have been fully indemnified to its satisfaction.
<PAGE>
(b) The Trustee may conclusively rely upon and shall be protected in
acting in good faith upon any written representation or order from the
Administrator or any other notice, request, consent, certificate or other
instrument or paper believed by the Trustee to be genuine and properly executed,
or any instrument or paper if the Trustee believes the signature thereon to be
genuine.
(c) The Trustee shall not be liable for interest on any reasonable
cash balances maintained in the Trust.
(d) The Trustee shall not be obligated to, but may, in its
discretion, receive a contribution directly from a Participant.
(e) The Employer shall indemnify and save harmless the Trustee from
and against any and all liability to which the Trustee may be subjected by
reason of any act, conduct or failure to act (except willful misconduct or gross
negligence) in its capacity as Trustee, including all expenses reasonably
incurred in its defense.
13.17 Successor Trustee. Any corporation into which a corporation acting as
-----------------
a ,Trustee hereunder may be merged or with which it may be consolidated, or any
corporation resulting from any merger, reorganization or consolidation to which
such 'Trustee may be a party, shall be the successor of the Trustee hereunder,
without the necessity of any appointment or other action, provided the Trustee
does not resign and is not removed.
13.18 Enforcement of Provisions. To the extent permitted by applicable law,
-------------------------
the Employer and the Administrator shall have the exclusive right to enforce any
and all provisions of this Agreement on behalf of all Employees or former
Employees of the Employer or their Beneficiaries or other persons having or
claiming to have an interest in the Trust Fund or under the Plan. In any action
or proceeding affecting the Trust Fund or any property constituting a part
<PAGE>
or all thereof, or the administration thereof or for instructions to the
Trustee, the Employer, the Administrator and the Trustee shall be the only
necessary parties and shall be solely entitled to any notice of process in
connection therewith; any judgment that may be entered in such action or
proceeding shall be binding and conclusive on all persons having or claiming to
have any interest in the Trust Fund or under the Plan.
13.19 Voting. The Trustee shall deliver, or cause to be executed and
------
delivered, to the Administrator, or to such individuals designated by the
Administrator, all notices, prospectuses, financial statements, proxies and
proxy soliciting materials received by the Trustee relating to securities held
by the Trust. The Administrator shall deliver these to the individuals entitled
to make investment decisions pursuant to Section 13.02 hereof (if the Adoption
Agreement so provides this may be the Participant or a Beneficiary) to the
extent that the Administrator has decided to passthrough voting to such
individuals. Each individual, including the Administrator, with voting rights,
is hereby designated a "named fiduciary," within the meaning of Section
402(a)(2) and 403(a)(1) of the Act, with respect to the Accounts over which he
or she may exercise voting rights. With respect to proxies, proxy solicitation
materials, and other voting matters, the Trustee shall vote securities held by
the Trust in accordance with the written instructions (as expressed in a
properly completed and executed proxy) of the Administrator or of the
individuals entitled to make investment decisions pursuant to Section 13.02 as
expressed in a properly completed and executed proxy. Such instructions shall be
delivered to the Trustee by the Administrator, or such person designated by the
Administrator. With respect to securities issued by the Employer, voting
instructions shall be delivered directly to the Trustee by the individuals
entitled to make investment decisions with respect to such securities and the
Trustee shall maintain the confidentiality, and shall not disclose the contents,
of any such vote except as
<PAGE>
otherwise required by law or a court of competent jurisdiction. The Trustee and
the Administrator may establish a procedure whereby any votes relating to
securities issued by the Employer are delivered by the Administrator to the
Trustee provided that the contents of such votes are not made known to the
Administrator. If, however, the Trustee has not received instructions with
respect to how to vote given securities at least five full business days (or
such shorter period as the Trustee, in its discretion, may determine) prior to
the meeting at which such securities are to be voted, the Trustee shall not vote
such securities unless otherwise required by law.
13.20 Applicability to Loan Trustee. Where appropriate, the foregoing
-----------------------------
provisions of this Article shall apply to the Loan Trustee on the same basis as
if the Loan Trustee were the Trustee.
13.21 Applicability to Other Trust. The provisions of this Article XIII
----------------------------
shall apply with respect to a separate trust which is created hereby but shall
not apply to a separate trust created pursuant to a separate trust agreement.
ARTICLE XIV. ADMINISTRATION
--------------
14.01 Appointment of Administrator. From time to time, the Employer may, by
----------------------------
identifying such person(s) in writing to both the Trustee and the Participants,
appoint one or more persons as Administrator (hereinafter referred to in the
singular). Such Administrator shall have all power and authority necessary to
carry out the terms of the Plan. A person appointed as Administrator may also
serve in any other fiduciary capacity, including that of Trustee, with respect
to the Plan. The Administrator may resign upon 15 days' advance written notice
to the Employer, and the Employer may at any time revoke the appointment of the
Administrator with or without cause. The Employer shall exercise the power and
fulfill the duties of the
<PAGE>
Administrator if at any time an Administrator has not been properly appointed in
accordance with this Section or the position is otherwise vacant.
14.02 Named Fiduciaries. The "Named Fiduciaries" within the meaning of the
-----------------
Act shall be the Administrator, each Trustee and each Participant and
Beneficiary with voting rights and/or investment rights.
14.03 Allocation of Responsibilities. Responsibilities under the Plan
------------------------------
shall be allocated among the Trustee, the Administrator and the Employer as
follows:
(a) Trustee: The Trustee shall have exclusive responsibility to
hold, manage and invest, pursuant to instructions communicated to it in
accordance with Section 13.02 above, the funds received by it subject to the
powers granted to it under Article XIII hereof. Notwithstanding the preceding
sentence, to the extent that loans, ire made to Participants in accordance with
Article XII hereof, the Trustee shall not be responsible for management of the
portion of Trust assets subject to such loans and the Loan Trustee shall be
responsible for administering such Trust assets in accordance with provisions of
Article XII.
(b) The Administrator: The Administrator shall have the
responsibility and authority to control the operation and administration of the
Plan in accordance with its terms including, without limiting the generality of
the foregoing, (i) any investment decisions assigned to it under the Adoption
Agreement or the Plan or Transmission to the Trustee of any Participant
investment decision under Section 13.02; (ii) interpretation of the Plan,
conclusive determination of all questions of eligibility, status, benefits and
rights under the Plan and certification to the Trustee of all benefit payments
under the Plan; (iii) hiring of persons to provide necessary services to the
.Plan not provided by Employees; (iv) preparation and filing of all statements,
returns -Ind reports required to be filed by the Plan with any agency of
government; (v) compliance with all
<PAGE>
disclosure requirements of all state or federal law; (vi) maintenance and
retention of all Plan records as required by law, except those required to be
maintained by the Trustee; and (vii) all functions otherwise assigned to it
under the terms of the Plan.
(c) Employer: The Employer shall be responsible for the design of
the Plan, as adopted or amended, the designation of the Administrator and each
Trustee (and, if appropriate, the Loan Trustee) as provided in the Plan, the
delivery to the Administrator and the Trustee of employee information necessary
for operation of the Plan (including, without limitation, dates of birth, hire,
and death; compensation amounts; and dates of death of beneficiaries), the
timely making of the Employer Contributions pursuant to Articles IV and VII, and
the exercise of all functions provided in or necessary to the Plan except those
assigned in the Plan to other persons.
(d) This Section is intended to allocate individual responsibility
for the prudent execution of the functions assigned to each of the Trustees, the
Loan Trustee, the Administrator and the Employer and none of such
responsibilities or any other responsibility shall be shared among them unless
specifically provided in the Plan. Whenever one such person is required by the
Plan to follow the directions of another, the two shall not be deemed to share
responsibility, but the person who gives the direction shall be responsible for
giving it and the responsibility of the person receiving the direction shall be
to follow it insofar as it is on its face proper under applicable law.
14.04 More Than One Administrator. If more than one individual is
---------------------------
appointed as Administrator, such individuals shall either exercise the duties of
the Administrator in concert, acting by a majority vote or allocate such duties
among themselves by written agreement delivered to the Employer and the Trustee.
In such a case, the Trustee may rely upon the
<PAGE>
instruction of any one of the individuals appointed as Administrator regardless
of the allocation of duties among them.
14.05 No Compensation. The Administrator shall not be entitled to receive
---------------
any compensation from the funds held under the Plan for its services in that
capacity unless so determined by the Employer or required by law.
14.06 Record of Acts. The Administrator shall keep a record of all its
--------------
proceedings, acts and decisions, and all such records and all instruments
pertaining to Plan administration shall be subject to inspection by the Employer
at any time. The Employer shall supply, and the Administrator may rely on the
accuracy of, all Employee data and other information needed to administer the
Plan.
14.07 Bond. The Administrator shall be required to give bond for the
----
faithful performance of its duties to the extent, if any, required by the Act,
the expense to be borne by the Employer.
14.08 Agent for Service of Legal Process. The Administrator shall be agent
----------------------------------
for service of legal process on the Plan.
14.09 Rules. The Administrator may adopt or amend and shall publish to the
-----
Employees such rules and forms for the administration of the Plan, and may
employ or retain such attorneys, accountants, physicians, investment advisors,
consultants and other persons to assist in the administration of the Plan as it
deems necessary or advisable.
14.10 Delegation. To the extent permitted by applicable law, the
----------
Administrator may delegate all or part of its responsibilities hereunder and at
any time revoke such delegation, by written statement communicated to the
delegate and the Employer. The Trustee may, but need
<PAGE>
not, act on the instructions of such a delegate. The Administrator shall
annually review the performance of all such delegates.
14.11 Claims Procedure. It is anticipated that the Administrator will
----------------
administer the Plan to provide Plan benefits without waiting for them to be
claimed, but the following procedure is established to provide additional
protection to govern unless and until a different procedure is established by
the Administrator and published to the Participants and Beneficiaries.
(a) Manner of Making Claim. A claim for benefits by a Participant
or Beneficiary to be effective under this procedure must be made to the
Administrator and must be in writing unless the Administrator formally or by
course of conduct waives such requirements.
(b) Notice of Reason for Denial. If an effective claim is wholly or
partially denied, the Administrator shall furnish such Participant or
Beneficiary with written notice of the denial within 60 days after the original
claim was filed. This notice of denial shall set forth in a manner calculated to
be understood by the claimant (i) the reason or reasons for denial, (ii)
specific reference to pertinent plan provisions on which the denial is based,
(iii) a description of any additional information needed to perfect the claim
and an explanation of why such information is necessary, and (iv) an explanation
of the Plan's claims procedure.
(c) The Participant or Beneficiary shall have 60 days from receipt
of the denial notice in which to make written application for review by the
Administrator. The Participant or Beneficiary may request that the review be in
the nature of a hearing. The Participant or Beneficiary shall have the rights
(i) to have representation, (ii) to review pertinent documents, and (iii) to
submit comments in writing.
(d) The Administrator shall issue a decision on such review within
60 days after receipt of an application for review, except that such period may
be extended for a period of
<PAGE>
time not to exceed an additional 60 days if the Administrator determines that
special circumstances (such as the need to hold a hearing) requires such
extension. The decision on review shall be in writing and shall include specific
reasons for the decision, written in a manner calculated to be understood by the
claimant, and specific references to the pertinent Plan provisions on which the
decision is based.
(e) The Employer shall indemnify and hold harmless the
Administrator, if the Administrator is not the Employer, and any employees of
the Employer who performs the function of the Administrator for the Employer, if
the Administrator is the Employer, (collectively, an "Indemnitee"), from any and
all claims, loss, damages, expenses (including reasonable counsel fees approved
by the Employer) and liability (including any reasonable amounts paid in
settlement with the Employer's approval), arising from any act or omission of
such Indemnitee, except when the same is judicially determined to be due to the
willful misconduct or gross negligence of such Indemnitee.
ARTICLE XV. FEES AND EXPENSES
-----------------
15.01 All reasonable fees and expenses of the Administrator or Trustee
incurred in the performance of their duties hereunder or under the Trust may be
paid by the Employer; and to the extent not so paid by the Employer, said fees
and expenses shall be deemed to be an expense of the Trust and shall be charged
against the assets of the Trust, including any forfeitures that have not been
reallocated or applied to reduce Employer Contributions. In addition, if the
Plan permits Participant-directed investment of Accounts, expenses that are
allocable to the Accounts of specific Participants shall be charged against the
respective Participants' Accounts in accordance with procedures adopted by the
Administrator from time to time.
<PAGE>
ARTICLE XVI. BENEFIT RECIPIENT INCOMPETENT
-----------------------------
OR DIFFICULT TO ASCERTAIN OR LOCATE
-----------------------------------
16.01 Incompetency. If any portion of the Trust Fund becomes distributable
------------
to a minor or to a Participant or Beneficiary who, as determined in the sole
discretion of Plan Administrator, is physically or mentally incapable of
handling his or her financial affairs, the Administrator may direct the Trustee
to make such distribution either to the legal representative or custodian of the
incompetent or to apply such distribution directly for the incompetent's support
and maintenance. Payments which are made in good faith shall completely
discharge the Employer, Administrator and Trustee from liability therefor.
16.02 Difficulty to Ascertain or Locate. If it is impossible or difficult
---------------------------------
to ascertain or locate the person who is entitled to receive any benefit under
the Plan, the Administrator in its discretion may direct that such benefit (a)
be retained in the Trust, (b) be paid to a court pending judicial determination
of the right thereto, or (c) be forfeited and reallocated pursuant to the
provisions of Section 8.02(a)(i) or (ii) above, as the case may be, provided
that as a result the Employer shall incur an obligation to restore the
individual's Account balance or otherwise pay the individual his or her benefit
if the individual is subsequently ascertained or located.
ARTICLE XVII. DESIGNATION OF BENEFICIARY
--------------------------
Each Participant and Beneficiary may submit a properly executed Designation
of Beneficiary to the person designated under this Article XVII to keep such
records. In order to be effective, such designation must have been properly
executed and submitted to the appropriate person before the death of the
Participant or Beneficiary, as the case may be; and, for a Participant who is
survived by his or her Spouse, unless the Participant leaves 100% of his or her
<PAGE>
benefit to such Spouse, must be accompanied, or preceded, by the consent of such
Spouse. Such consent of the Spouse must (a) be in writing; (b) acknowledge that
the effect of such consent is that the Spouse may receive no benefits under the
Plan; (y) be witnessed by a Plan representative or a notary public; and (c) be
either (i) a limited consent to the payment of death benefits to a specific
person or persons or (ii) expressly permit the Participant to designate another
person or other persons without obtaining further consent of the Spouse. The
last effective Designation accepted by the appropriate person shall be
controlling, and whether or not fully dispositive of the Participant's Account,
thereupon shall revoke all Designations previously submitted by the Participant
or Beneficiary, as the case may be. If a Participant's Beneficiary(ies)
predeceases the Participant, the remaining living Beneficiary(ies) shall receive
their proportionate share of the Participant's Account as if such deceased
Beneficiary(ies) had never been designated. Similar rules shall apply with
respect to contingent Beneficiaries. Each such executed Designation is hereby
specifically incorporated herein by reference and shall be construed and
enforced in accordance with the laws of the state in which the Trustee has its
principal place of business. The Administrator shall be the person responsible
for accepting and safekeeping Designation of Beneficiary Forms unless the
Trustee agrees in writing to accept and safekeep such forms.
ARTICLE XVIII. SPENDTHRIFT PROVISION AND DISTRIBUTIONS
---------------------------------------
PURSUANT TO QUALIFIED DOMESTIC RELATIONS ORDERS
18.01 General Spendthrift Rule. No interest of any Participant or
------------------------
Beneficiary shall be assigned, anticipated or alienated in any manner nor shall
it be subject to attachment, to bankruptcy proceedings or to any other legal
process or to the . interference or control of
<PAGE>
creditors or others, except (a) to the extent that Participants may secure loans
from the Trust with their Accounts pursuant to Article XII hereof and (b)
pursuant to Section 18.02 hereof.
18.02 Account Division and Distribution Pursuant to Qualified Domestic
----------------------------------------------------------------
Relations Orders. A Participant's vested Account may be assigned pursuant to a
- ----------------
qualified domestic relations order as defined in Code Section 414(p). If, and to
the extent that, any portion of a Participant's vested Account is payable to an
alternate payee pursuant to a qualified domestic relations order within the
meaning of Sections 401(a)(13)(B) and 414(p) of the Code, the provisions of said
order shall govern the payment thereof. An order shall not fail to constitute a
qualified domestic relations order within the meaning of Sections 401(a)(13)(B)
and 414(p) of the Code if the order provides for a payment to be made to an
alternate payee prior to the time the Participant would be entitled to receive a
benefit payment hereunder. The Administrator shall be responsible for
determining whether an order constitutes a qualified domestic relations order.
ARTICLE XIX. NECESSITY OF QUALIFICATION
--------------------------
This Plan is established with the intent that it shall qualify under Code
Section 401(a) as that Section exists at the time the Plan is established. If
the Plan as adopted by the Employer fails to attain such qualification, the Plan
will no longer participate in the relevant sponsor's prototype 401(k) plan and
will be considered an individually designed plan. If the Plan as adopted by the
Employer fails to attain or retain such qualification, the Employer shall
promptly either amend the Plan under Code Section 401(b) so that it does
qualify, or direct the Trustee to terminate the Trust, and distribute all the
assets of the Trust equitably among the contributors thereto in proportion to
their contributions, and the Plan and Trust shall be considered to be rescinded
and of no force and effect.
<PAGE>
ARTICLE XX. AMENDMENT AND TERMINATION
-------------------------
20.01 Amendment or Termination by the Employer. The Employer by action of
----------------------------------------
the Board of Directors, other governing board, general partner or sole
proprietor, as the case may be, may at any time, and from time to time amend
this Prototype Plan and the Adoption Agreement (including a change in any
election it has made in the Adoption Agreement), or suspend or terminate this
Plan by giving written notice to the Trustee, but the Trust may not thereby be
diverted from the exclusive benefit of the Participants, their Beneficiaries,
survivors or estates, or the administrative expenses of the Plan, nor revert to
the Employer, nor may an allocation or contribution theretofore made be changed
thereby, nor may any amendment directly or indirectly deprive a Participant of
such Participant's nonforfeitable rights to benefits accrued to the date of the
amendment.
No amendment to the Plan shall be effective to the extent that it would
have the effect of decreasing a Participant's Account balance or eliminating an
optional form of distribution. Notwithstanding the preceding sentence, a
Participant's Account balance may be reduced to the extent permitted under Code
Section 412(c)(8). Furthermore, if the vesting schedule of the 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 Account balance will not be less than his percentage computed
under the Plan without regard to such amendment.
The Employer may (a) change the choice of options in the Adoption
Agreement, (b) add overriding language in the Adoption Agreement when such
language is necessary to satisfy the requirements of Code Section 415 or to
avoid duplication of minimum benefits or accruals under Code Section 416 because
of the required aggregation of multiple plans, or (c) adopt a model
<PAGE>
amendment published by the Internal Revenue Service which specifically provides
that the adoption of such a model amendment will not cause the Plan to be
treated as an individually designed plan. Any other amendment by the Employer
will constitute a substitution by the Employer of an individually designed plan
for the sponsor's prototype plan. After such an amendment, the Plan shall no
longer participate in the sponsor's prototype plan and the general amendment
procedure of the Internal Revenue Service governing individually designed plans
will be applicable.
If an amendment changing the vesting schedule is executed (including
execution of this Adoption Agreement as an amendment to an existing plan),
Participants with three or more Vesting Years (five or more Vesting Years for
Participants who have not been credited with an Hour of Service in a Plan Year
beginning after December 31, 1988) before the expiration of the election period
described in the next sentence shall have the right to elect the vesting
schedule in effect on the day before the election period. The election period
shall commence on the date the amendment is adopted and end on the latest of (x)
60 days after the amendment is adopted, (y) 60 days after the Effective Date, or
(z) 60 days after the Participant is issued written notice of the amendment by
the Administrator. Failure to so elect shall be treated as a rejection and such
election or rejection shall be final.
Nothing contained herein shall constitute an agreement or representation by
any Sponsor or the Distributor that it will continue to maintain its sponsorship
of the Plan indefinitely.
20.02 Delegation. The Employer hereby delegates to the Sponsor the
----------
authority to amend so much of the Adoption Agreement and this Prototype 401(k)
Plan as is in prototype form and, to the extent to which the Employer could
effect such amendment, the Employer shall be deemed to have consented to any
amendment so made. When an election within the prototype form has
<PAGE>
been made by the Employer, it shall be deemed to continue after amendment of the
prototype form unless and until the Employer expressly further amends the
election, notwithstanding that the provision for the election in the amended
prototype form is in a different form or place; provided, however, that if the
amended form inadvertently fails to provide means to duplicate exactly the
earlier election, such earlier election shall continue until such further
amendment. The immediately preceding sentence is subject to the qualification
that each Employer hereby delegates to the Sponsor, in the event of such an
amendment of the prototype form, authority to determine conclusively that such a
continuation of an earlier election by the Employer is not advisable and to make
the election for the Employer in the amended prototype form which in the
judgment of the Sponsor most nearly corresponds with the election made by the
Employer before the amendment of the prototype form, provided the following
procedure is followed: the election for the Employer may be made with respect to
any specified Employers as to whom it may be made applicable singly, or such
election may be made with respect to all Employers as to whom it may be made
applicable as a group; and the election shall be made as of an effective date
which has been specified in a notice mailed or delivered, at the last addresses
of the Employer(s) on the records of the Distributor, to the Employer(s) at
least 20 days before the end of the remedial amendment period. Such notice may
be mailed to Employers to whom it cannot be applicable by reason of a previous
election made by the Employer or otherwise, but it shall be effective only as to
those Employers who have received the notice and have not themselves made a new
election with respect to that item since the amendment of the prototype form and
previous to the effective date of such election by the Sponsor. In the case of a
mass submitter plan, the Sponsor delegates its authority to make elections, or
to make amendments, to the mass submitter who shall make such elections or
amendments on behalf of the Sponsor and the Sponsor shall be deemed to have
<PAGE>
consented to any such election or amendment so made. The foregoing delegations
of authority to make elections, or to make amendments, shall not impose any duty
on the Sponsor or, if applicable, the mass submitter to make a given election or
amendment and shall not affect the interpretation of the Plan if any so
delegated authority is not used.
20.03 Distribution of Accounts Upon Termination. Upon termination or
-----------------------------------------
partial termination of the Plan or complete discontinuance of Employer
Contributions under it, the rights of all Participants (or, in the case of a
partial termination, the Participants affected thereby) to amounts theretofore
credited to their Accounts under the Plan shall be fully vested and
nonforfeitable. Upon any such termination or discontinuance, the Administrator
shall determine whether to pay the interests of Participants, and Beneficiaries
immediately, to retain such interest in the Trust and pay them in the future
according to Articles IX and X (or Article XXIV, if applicable) or to use what
other methods the Administrator deems advisable in order to furnish whatever
benefits the Trust will provide; provided any such distributions pursuant to
this Section shall comply with the requirements of Articles IX or X (or Article
XXIV, if applicable) hereof.
ARTICLE XXI. TRANSFERS
---------
Nothing contained herein shall prevent the merger or consolidation of the
Plan with, or transfer of assets or liabilities of the Plan to, another plan
meeting the requirements of Code Section 401(a) or the transfer to the Plan of
assets or liabilities of another such plan so qualified under the Code. Any such
merger, consolidation or transfer shall be accompanied by the transfer of such
existing records and information as may be necessary to properly allocate such
assets among Participants, including any tax or other information necessary for
the Participants or persons administering the plan which is receiving the
assets. The terms of such merger,
<PAGE>
consolidation or transfer must be such that if this Plan is then terminated, the
requirements of Section 20.01 hereof would be satisfied and each Participant
would receive a benefit immediately after the merger, consolidation or transfer
equal to or greater than the benefit he or she would have received if the Plan
had terminated immediately before the merger, consolidation or transfer. If this
Plan is a transferee plan with respect to all or a portion of a Participant's
Account, the optional forms of distribution described in Article X shall include
any optional form of distribution which the Participant could have elected under
the transferor plan and which would otherwise comply with the provisions of this
Plan.
ARTICLE XXII. OWNER-EMPLOYEE PROVISIONS
-------------------------
22.01 Purpose of Section. This Section is intended to insure that the Plan
------------------
complies with Code Section 401(d). Any ambiguity herein will be construed to
that end, and this Article will override any other provision of the Plan with
which it may be inconsistent.
22.02 Control. For purposes of this Article, "Control" means the ownership
-------
directly or indirectly of the entire interest in an unincorporated trade or
business or more than 50% of either the capital interest or the profits interest
in a partnership. For the purposes of applying the preceding sentence, an Owner-
Employee, or two or more Owner-Employees shall be treated as owning any interest
in a partnership which is owned, directly or indirectly, by a partnership which
such Owner-Employee, or such two or more Owner-Employees, are considered to
Control.
22.03 Limitations. No benefits shall be provided to an Owner-Employee
-----------
under this Plan unless:
(a) if an Owner-Employee or group of Owner-Employees Controls the
trade or business covered by this Plan and also Control as an Owner-Employee or
Owner-Employees
<PAGE>
one or more other trades or businesses, this Plan and the plans established for
such other trades or businesses, when taken together, form a single plan which
satisfies the requirements of Code Sections 401(a) and (d) with respect to the
employees of all the controlled trades or businesses;
(b) if an Owner-Employee or group of Owner-Employees Controls
another trade or business but does not Control the trade or business covered by
this Plan, the employees of such other trades or businesses are included in a
plan which satisfies the requirements of Sections 401(a) and (d) of the Code and
which provides contributions and benefits for such employees which are not less
favorable than those provided for Owner-Employees under this Plan; and
(c) if an Owner-Employee is covered under the qualified retirement
plans of two or more trades or businesses which he or she does not Control and
the Owner-Employee Controls a trade or business, contributions or benefits for
the employees under the plan of the trade or business which the Owner-Employee
Controls are not less favorable than those provided for the Owner-Employee in
the most favorable qualified retirement plan of the trade(s) or business(es)
which the Owner-Employee does not Control.
ARTICLE XXIII. TOP-HEAVY PROVISIONS
--------------------
23.01 Purpose of Section. This Article is intended to insure that the Plan
------------------
complies with Code Section 416. If the Plan is or becomes Top-Heavy in any Plan
Year, the provisions of this Section will supersede any conflicting provision in
the Plan.
23.02 Definitions. The terms used in this Section shall have the following
-----------
meanings:
(a) Key Employee: Any Employee or former Employee (and the
Beneficiaries of such Employee) who at any time during the determination period
was (i) an officer of the
<PAGE>
Employer having an annual compensation greater than 50% of the amount in effect
under Code Section 415(b)(1)(A) for the Plan Year (subject to the limitation
that no more than the lesser of (A) 50 Employees or (B) the greater of 3
Employees or 10% of the Employees shall be deemed to be officers), (ii) an owner
(or considered an owner under Code Section 318) of 1 of the 10 largest interests
in the Employer if both such individual was an owner of more than a .5 %
interest in the Employer (aggregated with the Employer for this purpose are all
members of (A) a controlled group of corporations (as defined in Code Section
414(b) as modified by Code Section 415(h)), (B) commonly controlled trades or
businesses (whether or not incorporated) (as defined in Code Section 414(c) as
modified by Code Section 415(h)), or (C) affiliated service groups (as defined
in Code Section 414(m)) of which the Employer is a part) and such individual's
compensation exceeds the dollar limitation under Code Section 415(c)(1)(A),
(iii) a 5 % owner of the Employer, or (iv) a 1-percent owner of the Employer who
has an annual compensation of more than $150,000. 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 Code
Section 416(i)(1) and the regulations thereunder.
(b) Top-Heavy Plan. This Plan is Top-Heavy if any of the following
--------------
conditions exist:
(i) If the Top-Heavy Ratio for this Plan exceeds 60% and this
Plan is not part of any Required Aggregation Group or Permissive Aggregation
Group of plans.
(ii) If this Plan is a part of a Required Aggregation Group of
plans but not part of a Permissive Aggregation Group and the Top-Heavy Ratio for
the Required Aggregation Group of plans exceeds 60%.
<PAGE>
(iii) If this 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 Permissive Aggregation Group exceeds 60%.
(c) Top-Heavy Ratio.
---------------
(i) If the Employer maintains one or more defined contribution
plans (including any Simplified Employee Pension Plan within the meaning of Code
Section 408(k)) and the Employer has not maintained any defined benefit plan
which during the five-year period ending on the Determination Date(s) has or has
had accrued benefits, Top-Heavy Ratio for this Plan alone or for the Required
Aggregation Group or Permissive Aggregation Group, as appropriate, is a
fraction, the numerator of which is the sum of the account balances under all of
the plans as of the Determination Date(s) (including any part of any account
balance distributed in the five-year period ending on the Determination Date(s))
of all Key Employees who have received compensation from the Employer (other
than benefits under a qualified retirement plan) at any time during the five-
year period ending on the Determination Date(s), and the denominator of which is
the sum of all account balances as of the Determination Date(s) (including any
part of any account balance distributed in the five-year period ending on the
Determination Date(s)), of all Participants who have received compensation from
the Employer (other than benefits under a qualified retirement plan) at any time
during the five-year period ending on the Determination Date(s). Both the
numerator and denominator of the fraction shall be computed in accordance with
Code Section 416 and the Treasury Regulations promulgated thereunder. In
addition, both the numerator and denominator of the Top-Heavy Ratio shall be
increased to reflect any contribution which is not actually made as of the
Determination Date(s), but which is required to
<PAGE>
be taken into account on that date under Code Section 416 and the Treasury
Regulations promulgated thereunder.
(ii) If the Employer maintains one or more defined contribution
plans (including any Simplified Employee Pension Plan within the meaning of Code
Section 408(k)) and the Employer maintains or has maintained one or more defined
benefit plans which during the five-year period ending on the Determination
Date(s) has or has had accrued benefits, the Top-Heavy Ratio for any Required
Aggregation Group or Permissive Aggregation Group, as appropriate, is a
fraction, the numerator of which is the sum of (A) account balances under the
defined contribution plans as of the Determination Date(s) (including any part
of any account balance distributed in the five-year period ending on the
Determination Date(s)) of all Key Employees who have received compensation from
the Employer (other than benefits under a qualified retirement plan) at any time
during the five-year period ending on the Determination Date(s) and (B) the
present value of accrued benefits under the defined benefit plans for all Key
Employees, who have received compensation from the Employer (other than benefits
under a qualified retirement plan) at any time during the five-year period
ending on the Determination Date(s) and the denominator of which is the sum of
(A) the account balances under the defined contribution plans as of the
Determination Date(s) (including any part of any account balance distributed in
the five-year period ending on the Determination Date(s)) of all participants
who have received compensation from the Employer (other than benefits under this
Plan) at any time during the five-year period ending on the Determination
Date(s) and (B) the present value of accrued benefits under the defined benefit
plans for all participants who have received compensation from the Employer
(other than benefits under this Plan) at any time during the five-year period
ending on the Determination Date(s). Both the numerator and denominator of the
<PAGE>
fraction shall be computed in accordance with Code Section 416 and Treasury
Regulations promulgated thereunder. In addition, both the numerator and
denominator of the Top-Heavy Ratio shall be increased for aggregate
distribution(s) of an account balance or an accrued benefit made during the
five-year period ending on the Determination Date(s) and any contribution to a
defined contribution plan not actually made as of the Determination Date(s), but
which is required to be taken into account on that date under Code Section 416
and the Treasury Regulations promulgated thereunder.
(iii) For purposes of (i) and (ii) 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 i.he Determination Date, except as provided in Code Section 416 and
the Treasury Regulations promulgated thereunder for the first and second plan
years of a defined benefit plan. The account balances and accrued benefits of a
Participant who has not been credited with at least one Hour of Service at any
time during the five-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 Laken into account will be made in
accordance with Code Section 416 and the Treasury Regulations promulgated
thereunder. Deductible employee contributions under any qualified plan
maintained by the Employer 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.
For Plan Years commencing after December 31, 1986 for the purpose of
determining the Top-Heavy Ratio, if any target benefit or defined benefit plan
is included in the Required Aggregation Group, the accrued benefit of an
Employee other than a Key Employee shall be
<PAGE>
determined under the method that uniformly applies for accrual purposes under
all qualified retirement plans maintained by the Employer, or if there is no
such method, as if such benefit accrued not more rapidly than the slowest
,accrual rate permitted under the fractional accrual rate of Code Section 411
(b)(1)(C).
(d) Permissive Aggregation Group. The Required Aggregation Group of
----------------------------
plans plus any other plan or plans of the Employer which, when considered as a
group with the Required Aggregation Group, would continue to satisfy the
:requirements of Code Sections 401(a)(4) and 410.
(e) Required Aggregation Group. (i) Each qualified plan of the
--------------------------
Employer in which at least one Key Employee participates or participated at any
time during the determination period (regardless of whether the plan has
terminated), and (ii) any other qualified plan of the Employer which enables a
plan described in (i) to meet the requirements of Code Sections 401(a)(4) or
410.
(f) Determination Date. For any Plan Year subsequent to the first
------------------
Plan Year, the Determination Date shall be the last day of the preceding Plan
Year. For the first Plan Year of the Plan, the Determination Date shall be the
last day of that year.
(g) Valuation Date. Shall be the last day of the Plan Year.
--------------
(h) Present Value. Present Value shall be based only on the
-------------
interest rate and the mortality table specified by the Employer in the Adoption
Agreement.
23.03 Minimum Allocation.
------------------
(a) In any Plan Year in which this Plan is Top-Heavy, except as
otherwise provided in subsections (c) and (d) below, the Employer Contributions
and forfeitures allocated, or during a Plan Year which begins after December 31,
1988, Employer Profit Sharing
<PAGE>
Contributions and forfeitures allocated to the Participant's Employer Profit
Sharing Contribution Account, on behalf of any Participant who is not a Key
Employee shall not be less than the lesser of 3% of such Participant's
Compensation or, in the case where the Employer has no defined benefit plan
which designates this Plan to satisfy Code Section 401, the largest percentage
of Employer Contributions and forfeitures stated as a percentage of a Key
Employee's Compensation, allocated on behalf of any Key Employee for that Plan
Year. The minimum allocation is determined without regard to any Social Security
contribution by the Employer. Salary Reduction Contributions, Employer Matching
Contributions and Qualified Matching Contributions may not be taken into account
to satisfy this minimum allocation. This minimum allocation shall be made even
though, under other provisions of this Plan, the Participant would not otherwise
be entitled to receive an allocation, or would have received a lesser allocation
for the year because (i) the Participant failed to complete the minimum number
of Hours of Service specified in the Adoption Agreement for receiving an
allocation, (ii) the Participant's Compensation was less than a stated amount,
or (iii) the Participant made insufficient mandatory contributions to receive an
Employer Matching Contribution.
(b) For purposes of computing the minimum allocation, "Compensation"
shall have the same meaning as in Section 5.05(b) hereof.
(c) The provision in subsection (a) 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 subsection (a) above shall not apply to any
Participant to the extent the Participant is covered under any other plan or
plans of the Employer, and the Employer has provided in the Adoption Agreement
that the minimum allocation or benefit requirement applicable to Top-Heavy Plans
will be met in such other plan or plans.
<PAGE>
23.04 Nonforfeitability of Minimum Allocation. The minimum allocation
---------------------------------------
required (to the extent required to be nonforfeitable under Code Section 416(b))
may not be forfeited under Code Section 411 (a)(3)(B) or 411 (a)(3)(D).
23.05 Limitation on Compensation. For Plan Years beginning after January
--------------------------
1, 1994, only the first $150,000 (or such other amount as may be prescribed by
the Secretary of the Treasury or his or her delegate) of a Participant's
Compensation for the Plan Year shall be taken into account for purposes of
allocating Employer Contributions under this Article XXIII.
23.06 Minimum Vesting Schedule. Unless the Employer has specified a more
------------------------
rapid vesting schedule in the Adoption Agreement, for any Plan Year in which
this Plan is Top-Heavy, the following minimum vesting schedule shall apply:
Nonforfeitable Percentage of
Employer Profit Sharing and
Vesting Years Matching Contribution Accounts
-------------------------------------------------------
1 0%
2 20
3 40
4 60
5 80
6 or more 100
The minimum vesting schedule applies to all benefits within the meaning of Code
Section 411(a)(7) attributable to Employer Contributions and forfeitures,
including benefits accrued before the effective date of Code Section 416 and
benefits accrued before the Plan became Top-Heavy. Further, no reduction in a
Participant's nonforfeitable percentage may occur in the event the Plan's status
as Top-Heavy changes for any Plan Year. If conversion of the Plan into a Top-
Heavy Plan has resulted in a change of the Plan's vesting schedule to the
minimum vesting
<PAGE>
schedule discussed above, the change shall be treated as an amendment to the
Plan and the election referred to in Section 20.01 hereof shall apply.
This Section does not apply to the Employer Profit Sharing Contribution
Account and Employer Matching Contribution Account balances of any Participant
who does not have an Hour of Service after the Plan has initially become Top-
Heavy and such Participant's vested Employer Profit Sharing Contribution Account
and Employer Matching Contribution Account balance will be determined without
regard to this Section.
23.07 Effect on Code Section 415 Limitations. Notwithstanding anything to
--------------------------------------
the contrary in Article V above, the following provisions apply if the Plan is
Top-Heavy:
(a) In any Plan Year in which the Top-Heavy Ratio exceeds 90 % (and
the Plan therefore becomes super Top-Heavy) the denominators of the Defined
Benefit Fraction (as defined in Section 5.05(c) above) and the Defined
Contribution Fraction (as defined in Section 5.05(d) above) shall be computed
using 100% of the dollar limitation stated therein instead of 125%.
(b) In any Plan Year in which the Top-Heavy Ratio exceeds 60%, but
is less than 90%, the denominators of the Defined Benefit Fraction (as defined
in Section 5.05(c) above) and the Defined Contribution Fraction (as defined in
Section 5.05(e) above) shall be computed using 100% of the dollar limitation
described therein instead of 125%, unless the Employer has specified in the
Adoption Agreement that the minimum allocation provisions of Section 23.03 above
shall be computed using 4% of a Participant's Compensation, in which case the
dollar limitations of the Defined Benefit Fraction (as defined in Section
5.05(c) above) and the Defined Contribution Fraction (as defined in Section
5.05(e) above) shall continue to be computed using 125% of the dollar
limitations.
<PAGE>
23.08 Termination of Top-Heavy Status. If the Plan ceases to be Top-Heavy
-------------------------------
for any Plan Year and if the Employer has not specified otherwise in the
Adoption Agreement, the minimum vesting schedule described in Section 23.06
shall continue to apply. If the Employer has specified in the Adoption Agreement
that, upon conversion of the Plan to non-Top-Heavy status, Participants' vested
benefits are to be determined according to a schedule other than the minimum
vesting schedule described in Section 23.06 hereof, such change in vesting
schedules shall be treated as an amendment, and the election referred to in
Section 20.01 hereof shall apply.
ARTICLE XXIV. SPECIAL DISTRIBUTION RULES
--------------------------
24.01 Special Distribution Rules for Certain Participants. If (a) it is
---------------------------------------------------
determined that this Plan is a direct or indirect transferee (where such
transfer occurred after December 31, 1984) of a defined benefit plan, money
purchase pension plan (including a target benefit plan), stock bonus or profit
sharing plan which would otherwise provide a life annuity form of payment with
respect to a Participant (including a plan which was amended into this Plan),
(b) the Plan is amended so as to allow a Participant to elect to receive his or
her benefits in the form of a life annuity and a Participant elects to receive
his or her benefits in such form, (c) the Plan is amended to provide that absent
a Qualified Election of a Participant's surviving Spouse, someone other than the
Participant's surviving Spouse becomes entitled to the Participant's vested
Account balance, or (d) if someone other than the Participant's surviving Spouse
is the beneficiary of any insurance purchased with funds from the Participant's
Account, then the provisions of Sections 24.03 to 24.05 below shall apply in
lieu of Article IX above and Sections 10.01 and 10.02 above. The Administrator
shall specify in writing to the Trustee the Participants' Accounts (or frozen
amounts in such Accounts) to which the provisions of Section 24.03 to 24.05
shall apply.
<PAGE>
For the purposes of determining whether the provisions of this Article
apply, the Trustee shall be entitled to rely conclusively on written
instructions, if any, received by the Trustee from the Administrator concurrent
with the transfer. Furthermore, where the transfer is, or was, not accompanied
by written instructions specifying conditions under which specific provisions of
this Article would apply, the Trustee shall be entitled to conclusively presume
that this Article does not apply.
24.02 Definitions. For the purpose of this Section, the following terms
-----------
shall have the specified meanings:
(a) "Election Period" shall mean the period which begins on the
---------------
first day of the Plan Year in which the Participant attains age 35 and which
ends on the date of the Participant's death. If a Participant separates from
Service prior to the first day of the Plan Year in which he or she attains age
35, the Election Period with respect to his or her Vested Account Balance (as of
his or her date of separation) shall begin on his or her date of separation.
(b) "Qualified Election" shall mean a valid waiver of a Qualified
------------------
Joint and Survivor Annuity or Qualified Preretirement Survivor Annuity, as the
case may be. To be valid, the waiver must be in writing and Participant's Spouse
must consent to it in writing. The Spouse's consent to the waiver (i) must be
witnessed by a Plan representative or notary public and (ii) must be (A) a
general consent to the provision of a form (or forms) of distribution to any
alternative person (or alternative persons); (B) a limited consent to the
provision of a specific form (or specific forms) of distribution to a specific
alternate person (or specific alternate persons); or (iii) a limited consent
which is specific with respect to form or alternative payee. Notwithstanding the
foregoing consent requirement, if the Participant establishes to the
satisfaction of a Plan representative that such written consent may not be
obtained because there
<PAGE>
is no Spouse or the Spouse cannot be located, a waiver will nonetheless be
deemed a Qualified Election. Any consent necessary for a Qualified Election will
be valid only with respect to the Spouse who signs the consent, or in the event
of a deemed Qualified Election, the Spouse whose consent could not be obtained
or who could not be located. Additionally, a revocation of a prior waiver may be
made by a Participant without the consent of the Spouse at any time before the
commencement of distributions or benefits. The number of revocations shall be
unlimited. Each such revocation shall once again make the Qualified Joint and
Survivor Annuity or Qualified Preretirement Survivor Annuity applicable, as the
case may be. No consent obtained pursuant to this Section shall be valid unless
the Participant has received the relevant notice as provided in Sections 24.09
and 24.10.
(c) "Qualified Joint and Survivor Annuity" shall mean, in the case
------------------------------------
of a married Participant, an annuity which can be purchased with the
Participant's Vested Account Balance for the life of the Participant with a
survivor annuity for the life of the Spouse equal to 50% of the amount of the
annuity which is payable during the joint lives of the Participant and the
Spouse. In the case of an unmarried Participant, Qualified Joint and Survivor
Annuity shall mean an annuity which can be purchased with a Participant's Vested
Account Balance for the life of the Participant.
(d) "Special Qualified Election" shall mean a valid waiver of a
--------------------------
Qualified Preretirement Survivor Annuity for the period beginning on the date of
such election and ending on the first day of the Plan Year in which the
Participant attains age 35. To be valid, the waiver must be (i) in writing, (ii)
made prior to the first day of the Plan Year in which the Participant attains
age 35, and (iii) preceded by a written explanation to the Participant of the
Qualified Preretirement Survivor Annuity in such terms as are comparable to the
explanation required by
<PAGE>
Section 24.09 and 24.10. Any election made pursuant to this Section shall be
void as of the first day of the Plan Year in which the Participant attains age
35 and Qualified Preretirement Survivor Annuity coverage shall be automatically
reinstated as of such date. Any future election to waive the Qualified
Preretirement Survivor Annuity must be a Qualified Election.
(e) "Vested Account Balance" shall mean the Participant's vested
----------------------
portion of his or her Account consisting of the sum of the balances of
Participant's Nondeductible Voluntary Contributions Account, Deductible
Voluntary Contribution Account, Rollover Account, Salary Reduction Contributions
Account, Deferred Cash Contribution Account and Nonelective Contribution Account
and the vested portions of a Participant's Employer Profit Sharing Account and
Employer Matching Account, reduced by any loans outstanding on the Annuity
Starting Date which are secured by the Participant's Account balance.
24.03 Distributions upon Death.
------------------------
(a) Qualified Preretirement Survivor Annuity.
----------------------------------------
(i) Unless either paragraph (ii) below applies or the
Participant has selected an optional form of distribution within the Election
Period pursuant to a Qualified Election or a Special Qualified Election, if the
Participant dies before the earlier of (A) his or her Annuity Starting Date or
(B) his or her First Required Distribution Date, then the Trustee shall, upon
the direction of the Administrator, apply 50% of the Participant's Vested
Account Balance toward the purchase of an annuity contract for the life of the
Spouse.
(ii) Notwithstanding the provisions of paragraph (i) above,
prior to the earlier of (A) Spouse's Annuity Starting Date or (B) the Spouse's
First Required Distribution Year, the Spouse of a Participant may deliver a
written election to the Administrator whereby the Spouse elects not to have 50%
of the Participant's Vested Account Balance applied toward the
<PAGE>
purchase of an annuity contract for the Spouse's life. Similarly, after the
earlier of (A) the Spouse's Annuity Starting Date or (B) the Spouse's First
Required Distribution Year, the Spouse may deliver a written election to the
Administrator whereby the Spouse elects to terminate distributions pursuant to
the Qualified Preretirement Survivor Annuity and to receive the liquidated value
of the remainder of the Qualified Preretirement Survivor Annuity in an
alternative form. In the case where a Spouse makes either of such elections, the
portion of the deceased Participant's Vested Account Balance which would
otherwise have been distributed pursuant to this subsection shall be distributed
pursuant to the provisions of subsection (b) below.
(iii) In the case of a Spouse of a deceased Participant who is
scheduled to receive a Qualified Preretirement Survivor Annuity and who does not
otherwise elect, at the instruction of the Administrator, the Trustee shall
apply 50% of the deceased Participant's Vested Account Balance toward an annuity
under which payments begin as of the later of the Participant's separation from
Service or (what would have been) the Participant's Normal Retirement Date. A
Spouse of a deceased Participant may elect a commencement date which is earlier
than the date discussed in the previous sentence by filing a written election to
that effect with the Administrator; the Trustee shall begin to make payments on
such earlier date upon instruction from the Administrator.
(b) Other Distributions at Death. If the Participant dies after he
----------------------------
or she has begun to receive distributions pursuant to Section 24.04 below, this
subsection shall apply with respect to the Participant's entire Vested Account
Balance. With respect to any Vested Account Balance, or portion thereof, to
which subsection (a) did not apply, the provisions of Article IX shall govern
the distribution thereof.
<PAGE>
24.04 Timing of Annuity Payments and Normal Distributions. Payment of
---------------------------------------------------
benefits under the Qualified Joint and Survivor Annuity or distributions
pursuant to the normal form of distribution discussed in Section 24.05(b) below
shall commence within 60 days after the close of the Plan Year during which
occurs the later of (a) the Participant's Normal Retirement Date or (b) the
earlier of (i) the Participant's separation from Service or (ii) the end of his
or her First Required Distribution Year. Payment of benefits may, at the
discretion of the Trustee, be paid directly to the Participant or to the
Administrator, as payee agent. If the Participant's vested Account balance
(exclusive of his or her Rollover Account and Deductible Voluntary Contribution
Account) is greater than $3,500, written consent of the Participant is required
for any earlier distribution. A Participant may file an election with the
Administrator to request that distributions commence in accordance with one of
the following options provided that the distribution shall otherwise comply with
the requirements of the Plan (including, but not limited to, Section 10.03):
(A) Distributions commencing before the Participant's
Normal Retirement Date if the Participant is Disabled or experiences a
separation from Service.
(B) Distributions commencing after the normal time of
distribution described above; provided, however, that any such deferred
distribution must commence no later than 60 days after the end of the
Participant's First Required Distribution Year.
24.05 Form of Distribution and Optional Times for Commencement of
-----------------------------------------------------------
Distribution. The Vested Account Balance of a Participant to which Section 24.03
- ------------
above does not apply, shall be distributed in a form determined according to
this Section.
<PAGE>
(a) Unless the Participant elects an optional form of distribution
pursuant to a Qualified Election or a Special Qualified Election within 90 days
before his or her Annuity Starting Date, the Participant's Vested Account
Balance shall be paid in the form of a Qualified Joint and Survivor Annuity.
(b) If the Participant was eligible to receive a Qualified Joint
and Survivor Annuity and he or she elects an optional form of distribution set
forth in Article X pursuant to a Qualified Election or a Special Qualified
Election within 90 days before his or her Annuity Starting Date, then the
Participant's Vested Account Balance will be distributed in the form selected by
the Participant and the provisions of Article X shall apply.
(c) All annuity contracts purchased and distributed by the Plan to
a Participant or a Beneficiary shall be nontransferable when distributed and the
terms of such contracts shall comply with the requirements of the Plan.
24.06 Elections for Former Participants. An opportunity to make the
---------------------------------
applicable distribution elections discussed in this Section must be given to any
living former Participant who had not begun receiving benefits from this Plan on
August 23, 1984 and who would not otherwise receive the benefit forms prescribed
by Section 24.05 above.
(a) In the case of a former Participant who:
(i) would have been entitled to receive his or her benefits in
the form of a life annuity had he or she completed an Hour of Service during a
Plan Year commencing after December 31, 1984,
(ii) was credited with Service under this Plan or a predecessor
plan in a plan year beginning after December 31, 1975, and
<PAGE>
(iii) had at least ten years of Vesting Service when he or she
separated from Service,
the former Participant must be given an opportunity to elect to receive his or
her benefits in accordance with the provisions of Section 24.05 above.
(b) In the case of a former Participant:
(i) who was credited with service under this Plan or a
predecessor plan after September 1, 1974;
(ii) who was not credited with service under this plan or a
predecessor plan in a plan year beginning after December 31, 1975; and
(iii) whose benefits would have been payable in the form of a
life annuity, the Participant must be given an opportunity to elect to receive
his or her benefits in accordance with the provisions of Section 24.08 below.
(c) In the case of a former Participant who:
(i) satisfies the requirements of subsection (a) but does not
exercise the election made available to him or her in subsection (a), or
(ii) satisfies the requirements of subsection (a) other than
the requirement of paragraph (iii), the former Participant shall have his or her
benefits distributed in accordance with the provisions of Section 24.08 below.
24.07 Election Period for Certain Elections by Separated Participants. The
---------------------------------------------------------------
period during which a former Participant entitled to make an election pursuant
to Section 24.06 above shall commence on August 23, 1984 and end on the earlier
of the former Participant's death or the date benefits would otherwise commence
to said former Participant.
<PAGE>
24.08 Benefit Form for Certain Former Participants. The benefits of a
--------------------------------------------
former Participant who is entitled to elect, and has elected to have his or her
benefits distributed pursuant to this Section or a former Participant whose
benefits are required to be distributed in accordance with the provisions of
this Section shall be distributed in accordance with the following provisions:
(a) If benefits in the form of a life annuity become payable to a
married former Participant who:
(i) begins to receive payments under the Plan on or after
Normal Retirement Age; or
(ii) dies on or after Normal Retirement Age while still
working for the Employer; or
(iii) begins to receive payments prior to Normal Retirement
Age; or
(iv) separates from Service on or after attaining Normal
Retirement Age (or the qualified early retirement age) after satisfying the
eligibility requirement for the payment of benefits under the Plan and
thereafter dies before beginning to receive such benefits; then such benefits
will be received under this plan in the form of a Qualified Joint and Survivor
Annuity, unless the former Participant has elected otherwise during the election
period. For this purpose, the election period must begin at least six months
before the Participant attains qualified early retirement age and end not more
than 90 days before the commencement of benefit distributions. Any election
hereunder must be in writing and delivered to the Administrator; such election
may be changed by the former Participant at any time by delivery of written
notification of such change and/or a separate written election to the
Administrator.
(b) A former Participant who is employed at the start of the
election period defined below will be given the opportunity to elect, during
such election period, to have a
<PAGE>
survivor annuity payable on death. If the former Participant elects the survivor
annuity, payments under such annuity must not be less than the payments which
would have been made to the Spouse under the Qualified Joint and Survivor
Annuity if the former Participant had retired on the day before his or her
death. Any election under this provision must be in writing and delivered to the
Administrator; such election may be changed by the former Participant at any
time by delivery of written notification of such change and/or a separate
written election to the Administrator. The election period begins on the later
of (i) the 90th day before the former Participant attains the qualified early
retirement age or (ii) the date on which participation begins, and ends on the
date the former Participant terminates employment with the Employer.
(c) The qualified early retirement age referred to in this Section
shall mean the latest of:
(i) the earliest date, under the Plan, on which the former
Participant may elect to receive retirement benefits:
(ii) the first day of the 120th month beginning before the
former Participant reaches Normal Retirement Age: or
(iii) the date the former Participant began participation.
24.09 Notice of Waivability of Qualified Preretirement Survivor Annuity.
-----------------------------------------------------------------
(a) In the case of a Participant who is scheduled to receive
Qualified Preretirement Survivor Annuity coverage pursuant to Section 24.03
hereof, the Administrator shall provide to the Participant within the applicable
period as determined pursuant to subsection (b) below, a written explanation of:
(i) the terms and conditions of a Qualified Preretirement Survivor Annuity; (ii)
the Participant's right to make, and the effect of, an election to waive
Qualified Preretirement Survivor Annuity coverage; (iii) the rights of a
Participant's Spouse; and
<PAGE>
(iv) the Participant's right to make, and the effect of, a revocation of a
previous election to waive Qualified Preretirement Survivor Annuity coverage.
(b) The applicable period during which the Administrator shall
provide the written explanation described in subsection (a) above shall mean,
with respect to a given Participant, whichever of the following periods ends
last:
(i) The period beginning when the individual becomes a
Participant and ending a reasonable period of time thereafter;
(ii) The period beginning on the first day of the Plan Year
during which the Participant attains age 32 and ending on the last day of the
Plan Year during which the Participant attains age 34;
(iii) The period that begins with a Participant's separation
from Service when the Participant separates from Service before attaining age 35
and ends a reasonable period of time after such separation from Service;
(iv) The period of time that begins on the effective date of a
Plan amendment which causes the Plan to no longer fully subsidize the cost of
the Qualified Preretirement Survivor Annuity and ends a reasonable period of
time after the effective date of such an amendment; or
(v) The period of time which begins when Section 24.03(a)
above first applies in the case of the Participant and ends a reasonable period
of time thereafter.
For purposes of applying the preceding paragraph, a reasonable period
ending after the enumerated events described in (i), (iv) and (v) is the end of
the two-year period beginning one year prior to the date the applicable event
occurs and ending one year after that date. In the case of a Participant who
separates from service before the Plan Year in which age 35 is attained,
<PAGE>
notice shall be provided within the two-year period beginning one year prior to
separation and ending one year after separation. If such a Participant
thereafter returns to employment with the Employer, the applicable period for
such Participant shall be redetermined.
24.10 Notice of Waivability of Qualified Joint and Survivor Annuity. In
-------------------------------------------------------------
the case of a Participant who is scheduled to receive a Qualified Joint and
Survivor Annuity pursuant to the provisions of Section 24.05 hereof, the
Administrator shall provide to the Participant, no less than 30 days and no more
than 90 days prior to the annuity starting date, a written explanation of: (a)
the terms and conditions of a Qualified Joint and Survivor Annuity; (b) the
Participant's right to make, and the effect of, an election to waive
distribution in the form of a Qualified Joint and Survivor Annuity; (c) the
rights of the Participant's Spouse; and (d) the Participant's right to make, and
the effect of, a revocation of a previous election to waive distribution in the
form of the Qualified Joint and Survivor Annuity. Distribution to a Participant
may commence seven days after the foregoing explanation is given, provided that:
(i) the Administrator clearly informs the Participant that the
Participant has a right to a period of at least 30 days after receiving the
notice to consider the decision of whether or not to elect a distribution (and,
if applicable, a particular distribution option), and
(ii) the Participant, after receiving the explanation,
affirmatively elects a distribution.
ARTICLE XXV. MISCELLANEOUS
-------------
25.01 Misrepresentation. Notwithstanding any other provision herein, if an
-----------------
Employee misrepresents his or her age or any other fact, any benefit payable
hereunder shall be the smaller
<PAGE>
of: (a) the amount that would be payable if no facts had been misrepresented, or
(b) the amount that would be payable if the facts were as misrepresented.
25.02 No Enlargement of Plan Rights. It is a condition of the Plan, and
-----------------------------
each Participant by participating herein expressly agrees, that he or she shall
look solely to the assets of the Trust for the payment of any benefit under the
Plan.
25.03 No Enlargement of Employment Rights. Nothing appearing in or done
-----------------------------------
pursuant to the Plan shall be construed (a) to give any person a legal or
equitable right or interest in the assets of the Trust or distribution
therefrom, nor against the Employer, except as expressly provided herein or (b)
to create or modify any contract of employment between the Employer and any
Employee or obligate the Employer to continue the services of any Employee.
25.04 Written Orders. In taking or omitting to take any action under this
--------------
Plan, the Trustee may conclusively rely upon and shall be protected in acting
upon any written orders from or determinations by the Employer or the
Administrator as appropriate, or upon any other notices, requests, consents,
certificates or other instruments or papers believed by it to be genuine and to
have been properly executed, and so long as it acts in good faith, in taking or
omitting to take any other action.
25.05 No Release from Liability. Nothing in the Plan shall relieve any
-------------------------
person from liability for any responsibility under Part 4 of Title I of the Act.
Subject thereto, neither Trustee, Loan Trustee, Administrator or Distributor nor
any other person shall have any liability under the Plan, except as a result of
negligence or willful misconduct, and in any event the Employer shall fully
indemnify and save harmless all persons from any liability except that resulting
from their negligence or wilful misconduct.
<PAGE>
25.06 Discretionary Actions. The Administrator shall have discretionary
---------------------
authority to determine eligibility for benefits and construe the terms of the
Plan. Any discretionary action, including the granting of a loan pursuant to
Article XII hereof, to be taken by the Employer or the Administrator under this
Plan shall be non-discriminatory in nature and all Employees similarly situated
shall be treated in a uniform manner.
25.07 Headings. Headings herein are primarily for convenience of
--------
reference, and if they conflict with the text, the text shall control.
25.08 Applicable Law. This Plan and Trust shall, to the extent state law
--------------
is applicable, be construed and enforced in accordance with, and the rights of
the parties shall be governed by, the laws of the state in which (a) if the
Trustee is a corporation, the Trustee has its principal place of business; (b)
if the Trustee is an individual, the Trustee resides; or (c) if the Trustee is
individuals, where a majority of the individuals serving as Trustee reside. The
Employer's execution of the Adoption Agreement may be acknowledged where
required by applicable law.
25.09 No Reversion. Notwithstanding any other contrary provision of the
------------
Plan, but subject nevertheless to Articles V and XVIII, no part of the assets in
the Trust shall revert to the Employer, and no part of such assets, other than
that amount required to pay taxes or administrative expenses, shall be used for
any purpose other than exclusive benefit of Employees or their Beneficiaries.
However, the Employer may request a return, and this Section shall not prohibit
return, of an amount to the Employer under any of the following circumstances:
(a) if the amount was all or part of an Employer Contribution which
was made as a result of a mistake of fact and the amount contributed or, if
less, the then current value is returned to the Employer within one year after
the date on which the mistaken payment of the contribution was made, or
<PAGE>
(b) if the amount was all or part of an Employer Contribution which
was conditioned on deductibility under Code Section 404, such deduction was
disallowed with respect to such amount and this condition is not satisfied and
the amount is returned to the Employer within one year after the date on which
the deduction is disallowed, or
(c) if the amount was all or part of an Employer Contribution which
was conditioned on the initial qualification of the Plan under Code Section 401
(a), the Plan receives an adverse determination with respect to this
qualification and the amount is returned to the Employer within one year after
the date on which such adverse determination is made, but only if the
application for the determination is made by the time prescribed by law for
filing the Employer's return for the taxable year in which the Plan was adopted,
or such later date as the Secretary of Treasury may prescribe.
For the purposes of this Section, all Employer Contributions are
conditioned on initial qualification of the Plan under Code Section 401(a),
qualification of the Plan as amended under Code Section 401 (a), and
deductibility under Code Section 404.
25.10 Notices. The Employer will provide the notice to other interested
-------
parties contemplated under Code Section 7476 before requesting a determination
by the Secretary of the Treasury or his or her delegate with respect to the
qualification of the Plan.
25.11 Conflict. In the event of any conflict between the provisions of
--------
this Plan and the ten-ns of any contract or agreement issued thereunder or with
respect thereto, the provisions of the Plan shall control. In particular, the
proceeds of any life insurance contract purchased by the Trustee and not
governed by an effective Designation of Beneficiary form shall be paid to the
Participant's Spouse regardless of who is named as the beneficiary or
beneficiaries in the contract.
<PAGE>
25.12 Prior Benefits. If the optional form of benefits under the Plan
--------------
prior to adoption of the Prototype 401(k) Plan (the "Prior Benefits") were
different than the optional form of benefits as provided in the Prototype 401(k)
Plan, then the portion of a Participants' Account which are attributable to
participation in the Plan prior to adoption of the Prototype 401(k) Plan shall
be subject to such Prior Benefits and, in the discretion of the Administrator
the remaining portion of the Participants' Account shall also be subject to such
Prior Benefits. The Administrator shall notify the Trustee as to what portion,
if any, of the Participants' Account is subject to such Prior Benefits and give
a full description of such Prior Benefits; and, separate accounts shall be
maintained for each type of contribution (as provided in Section 7.03) for such
portion.
<PAGE>
EXHIBIT 5.1
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
1100 COMMERCE STREET
DALLAS, TX 75242 Employer Identification Number:
73-1325906
Date: AUG 12 1993 File Folder Number:
730013134
CHANDLER USA INC Person to Contact:
1006 MANVEL AVENUE JILL RUTHERFORD
CHANDLER, OK 74834 Contact Telephone Number:
(214) 767-1204
Plan Name:
CHANDLER USA INC
401K THRIFT PLAN
Plan Number: 001
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualifications of the plan under its present form will depend on
its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publications.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal
or local statutes.
This determination is subject to your adoption of the proposed amendments
submitted in your letter dated August 4, 1993. The proposed amendments should
be adopted on or before the date prescribed by the regulations under Code
section 401(b).
This determination letter is applicable for the amendment(s) adopted on
November 30, 1992.
This determination letter is also applicable for the amendment(s) adopted
on December 2, 1992.
<PAGE>
CHANDLER U S A INC
This letter is based upon the certification and demonstrations you
submitted pursuant to Revenue Procedure 91-66. Therefore, the certification and
demonstrations are considered an integral part of this letter. Accordingly, YOU
MUST KEEP A COPY OF THESE DOCUMENTS AS A PERMANENT RECORD OR YOU WILL NOT BE
ABLE TO RELY ON THE ISSUES DESCRIBED IN REVENUE PROCEDURE 91-66.
We have sent a copy of this letter to your representative as indicated in
the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ Gary O. Booth
Gary O. Booth
District Director
Enclosures:
Publication 794
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Chandler Insurance Company, Ltd. on Form S-8 of our report dated March 23, 1998
(which expresses an unqualified opinion and includes an explanatory paragraph
relating to litigation) appearing in the Annual Report on Form 10-K of Chandler
Insurance Company, Ltd. for the year ended December 31, 1997.
/s/ DELOITTE & TOUCHE
Grand Cayman, Cayman Islands
February 19, 1999
