<PAGE>
As filed with the Securities and Exchange Commission on October 1, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
NEW PLAN EXCEL REALTY TRUST, INC.
(Exact name of registrant as specified in its charter)
Maryland 33-0160389
(State of incorporation) (I.R.S. Employer
Identification No.)
1120 Avenue of the Americas
New York, New York 10036
(Address of principal executive offices) (Zip Code)
New Plan Realty Trust
Retirement and 401(k) Savings Plan
(Full title of the plan)
----------------------------------------
Arnold Laubich
Chief Executive Officer
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
(Name and address of agent for service)
(212) 869-3000
(Telephone number, including area code, of agent for service)
----------------------------------------
Calculation of Registration Fee
<TABLE>
<CAPTION>
================================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of Registration
to be Registered Registered (1) Offering Price Per Aggregated Offering Fee (2)(3)
Unit (2) Price (2)
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 250,000 Shares $22.11 $5,527,500 $1,630.61
$.01 per share
- ----------------------------------------------------------------------------------------------------------------
Interest in the Plan (3) (3) (3) (3)
================================================================================================================
</TABLE>
(1) Also includes stock purchase rights. Prior to the occurrence of certain
events, these rights will not be exercisable or evidenced separately from the
Common Stock.
(2) Estimated solely for the purpose of registration fee. Pursuant to Rule
457(c), the offering price and registration fee are computed on the basis of the
average of the high and low prices of the Registrant's Shares, as reported on
the New York Stock Exchange Composite Transaction on September 25, 1998.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the plan,
such interests constituting separate securities required to be registered under
the Securities Act and not requiring a separate registration fee.
<PAGE>
PART II
-------
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The following documents filed by the New Plan Realty Trust Retirement and
401(k) Savings Plan ("Plan"), New Plan Excel Realty Trust, Inc. ("Excel" or
"Registrant") or New Plan Realty Trust ("New Plan") with the Securities and
Exchange Commission (the "Commission") are incorporated in this Registration
Statement by reference:
(i) Annual Report of New Plan Realty Trust Retirement and 401(k)
Savings Plan on Form 11-K;
(ii) Joint Proxy Statement/Prospectus dated August 12, 1998, contained
in Registration Statement on Form S-4, filed by Excel with the
Commission on August 11, 1998 (file number 333-61131);
(iii) Annual Report of Excel on Form 10-K for the year ended December 31,
1997;
(iv) Annual Report of New Plan on Form 10-K for the year ended July 31,
1997;
(v) Quarterly Report of Excel on Form 10-Q for the three-month period
ended March 31, 1998 and June 30, 1998;
(vi) Quarterly Report of New Plan on Form 10-Q for the three-month
period ended October 31, 1997, January 31, 1998 and April 30, 1998;
(vii) Current Reports of Excel on Form 8-K filed January 14, 1998, April
2, 1998, May 22, 1998, May 28, 1998 and July 14, 1998;
(viii) Current Reports of New Plan on Form 8-K filed July 31, 1997,
September 19, 1997, January 23, 1998, April 24, 1998, May 19, 1998,
May 22, 1998 and August 13, 1998;
(ix) the description of common stock of Excel contained in Registration
Statement on Form 8-A, filed by Excel with the Commission on
July 30, 1993 (file number 112244); and
(x) the description of stock purchase rights contained in Registration
Statement on Form 8-A, filed by Excel with the Commission on May
22, 1998 (file number 112244).
All documents filed subsequent to the filing date of this Registration
Statement with the Commission by the Registrant or the Plan pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered hereby have been
sold, or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be incorporated by reference herein modifies or supersedes such prior
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement, except as indicated herein.
Item 6. Indemnification of Directors and Officers.
The Registrant's charter and bylaws require the Registrant to indemnify
its directors, officers and certain other persons to the fullest extent
permitted from time to time by Maryland law. The Maryland General Corporation
Law permits a corporation to indemnify its directors, officers and certain other
persons against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made a party by reason of their service to or at the request of the corporation,
unless it is established that the act or omission of the indemnified party was
material to the matter giving rise to the proceedings and (i) was committed in
bad faith or was the result of active and deliberate dishonesty, (ii) the
indemnified party actually received an improper personal benefit or (iii) in the
case of any criminal proceeding the indemnified party had reasonable cause to
believe that the act or omission was unlawful. Indemnification may be made
against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by the director or officer in connection with the proceeding;
provided, however, that if the proceeding is one by or in the right of the
corporation, indemnification may not be made with respect to any proceeding in
which the director or
1
<PAGE>
officer has been adjudged to be liable to the corporation. In addition, a
director or officer may not be indemnified with respect to any proceeding
charging improper personal benefit to the director or officer in which the
director or officer was adjudged to be liable on the basis that personal benefit
was improperly received. The termination of any proceeding by conviction, or
upon a plea of nolo contendere or its equivalent, or an entry of any order of
probation prior to judgment, creates a rebuttable presumption that the director
or officer did not meet the requisite standard of conduct required for
indemnification to be permitted. It is the position of the Commission that
indemnification of directors and officers for liabilities arising under the
Securities Act is against public policy as expressed in the Securities Act and
is therefore unenforceable.
Item 8. Exhibits
Exhibit Number Description
-------------- -----------
4.1 New Plan Realty Trust Retirement and 401(k) Savings
Plan, amended and restated as of March 1 ("Plan").
4.2 New Plan Realty Trust Retirement and 401(k) Savings
Trust, effective February 27, 1998.
4.3 Articles of Amendment and Restatement, incorporated
by reference to Amendment No. 1 to the Registrant's
Registration Statement on Form S-3 filed with the
Commission on May 25, 1995, file number 33-59195.
4.4 Articles Supplementary (Series A Preferred Stock),
incorporated by reference to the Registrant's Current
Report on Form 8-K filed with the Commission on
February 7, 1997.
4.5 Articles Supplementary (Series B Preferred Stock),
incorporated by reference to the Registrant's Current
Report on Form 8-K filed with the Commission on
January 14, 1998.
4.6 Stockholder Rights Agreement, dated as of May 15,
1998 between Excel Realty Trust, Inc. and BankBoston,
N.A., which includes the form of Articles Supplementary
of the Series C Preferred Stock as Exhibit A, the form
of Right Certificate as Exhibit B and the Summary of
Rights to Purchase Preferred Shares as Exhibit C,
incorporated by reference to the Registrant's
Registration Statement on Form 8-A filed with the
Commission on May 22, 1998, file number 112234.
4.7 Articles of Amendment, incorporated by reference to the
Registrant's Registration Statement on Form S-3 filed
with the Commission on October 1, 1998.
4.8 Articles Supplementary (Series D Preferred Stock),
incorporated by reference to the Registrant's
Registration Statement on Form S-3 filed with the
Commission on October 1, 1998.
4.9 Amended and Restated Bylaws, incorporated by reference
to the Registrant's Registration Statement on Form S-3
filed with the Commission on October 1, 1998.
5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP as
to the legality of the shares to be registered.
5.2 New Plan Realty Trust has submitted the Plan and will
submit any amendment thereto to the Internal Revenue
Service ("IRS") in a timely manner and has made or will
make all changes required by the IRS in order to
qualify the Plan.
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP
(contained in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
Item 9. Undertakings.
(i) The undersigned Registrant hereby undertakes:
(a) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
2
<PAGE>
(1) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(2) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement; and
(3) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (1) and (2) above will not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement;
(b) that, for the purpose of determining any liability under the
Securities Act, each 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;
(c) 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) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(iii) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
3
<PAGE>
SIGNATURES
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 New York, State of New York, on the 28th day of
September, 1998.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Arnold Laubich
--------------------------
Arnold Laubich
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following in the capacities and on
the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ William Newman Chairman of the Board September 28,1998
- ------------------------
William Newman
/s/ Arnold Laubich Chief Executive Officer and
- ------------------------ Director
Arnold Laubich (Principal Executive Officer) September 28,1998
/s/ Gary B. Sabin President and Director September 28,1998
- ------------------------
Gary B. Sabin
/s/ James M. Steuterman Executive Vice President,
- ------------------------ Co-Chief Operating Officer and
James M. Steuterman Director September 28,1998
/s/ Richard B. Muir Executive Vice President,
- ------------------------ Co-Chief Operating Officer and
Richard B. Muir Director September 28,1998
/s/ David A. Lund Chief Financial Officer
- ------------------------ (Principal Financial and
David A. Lund Accounting Officer) September 28,1998
/s/ Dean Bernstein Senior Vice President - Finance
- ------------------------ and Multifamily and Director September 28,1998
Dean Bernstein
/s/ Raymond A. Bottorf Director September 28,1998
- ------------------------
Raymond A. Bottorf
/s/ Norman Gold Director September 28,1998
- ------------------------
Norman Gold
/s/ Melvin Newman Director September 28,1998
- ------------------------
Melvin Newman
Director September __,1998
- ------------------------
John Wetzler
/s/ Gregory White Director September 28,1998
- ------------------------
Gregory White
/s/ Boyd A. Lindqist Director September 28,1998
- ------------------------
Boyd A. Lindquist
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Robert E. Parsons, Jr. Director September 28,1998
- ------------------------
Robert E. Parsons, Jr.
/s/ Bruce A. Staller Director September 28,1998
- ------------------------
Bruce A. Staller
/s/ John H. Wilmot Director September 28,1998
- ------------------------
John H. Wilmot
</TABLE>
Pursuant to the requirements of the Securities Act, the Plan Administrator
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York on the 28th day of September, 1998.
NEW PLAN REALTY TRUST RETIREMENT
AND 401(k) SAVINGS PLAN
By: NEW PLAN REALTY TRUST,
as Plan Administrator
By: /s/ Steven F. Siegel
---------------------------
Steven F. Siegel
Its: Senior Vice President
---------------------------
5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
-------------
Exhibit Description Page Number in Signed
No. ----------- Registration Statement
- ------- ----------------------
<C> <S> <C>
4.1 New Plan Realty Trust Retirement and 401(k) Savings Plan,
amended and restated as of March 1, 1998 ........................... 8
4.2 New Plan Realty Trust Retirement and 401(k) Savings Trust,
effective February 27, 1998 ........................................ 84
4.3 Articles of Amendment and Restatement, incorporated
by reference to Amendment No. 1 to the Registrant's
Registration Statement on Form S-3 filed with the
Commission on May 25, 1995, file number 33-59195.
4.4 Articles Supplementary (Series A Preferred Stock),
incorporated by reference to the Registrant's Current
Report on Form 8-K filed with the Commission
on February 7, 1997.
4.5 Articles Supplementary (Series B Preferred Stock),
incorporated by reference to the Registrant's Current
Report on Form 8-K filed with the Commission on
January 14, 1998.
4.6 Stockholder Rights Agreement, dated as of May 15,
1998 between Excel Realty Trust, Inc. and BankBoston,
N.A., which includes the form of Articles Supplementary
of the Series C Preferred Stock as Exhibit A, the form of
Right Certificate as Exhibit B and the Summary
of Rights to Purchase Preferred Shares as Exhibit C,
incorporated by reference to the Registrant's Registration
Statement on Form 8-A filed with the Commission on
May 22, 1998, file number 112234.
4.7 Articles of Amendment, incorporated by reference to
the Registrant's Registration Statement on Form S-3 filed
with the Commission on October 1, 1998.
4.8 Articles Supplementary (Series D Preferred Stock),
incorporated by reference to the Registrant's Registration
Statement on Form S-3 filed with the Commission on
October 1, 1998.
4.9 Amended and Restated Bylaws, incorporated by reference
to the Registrant's Registration Statement on Form S-3
filed with the Commission on October 1, 1998.
5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP as to the
legality of the Shares to be registered ............................ 108
5.2 New Plan Realty Trust has submitted the Plan and will submit
any amendment thereto to the IRS in a timely manner and has
made or will make all changes required by the IRS in order to
qualify the Plan.
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (contained
in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP .............................. 112
</TABLE>
6
<PAGE>
EXHIBIT 4.1
NEW PLAN REALTY TRUST
RETIREMENT AND 401(K) SAVINGS PLAN
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
ARTICLE I DEFINITIONS............................................1
ARTICLE II ADMINISTRATION........................................16
2.1 POWERS AND RESPONSIBILITIES OF THE EMPLOYER...........16
2.2 DESIGNATION OF ADMINISTRATIVE AUTHORITY...............17
2.3 POWERS AND DUTIES OF THE ADMINISTRATOR................17
2.4 RECORDS AND REPORTS...................................19
2.5 APPOINTMENT OF ADVISERS...............................19
2.6 PAYMENT OF EXPENSES...................................19
2.7 CLAIMS PROCEDURE......................................19
2.8 CLAIMS REVIEW PROCEDURE...............................19
ARTICLE III ELIGIBILITY...........................................20
3.1 CONDITIONS OF ELIGIBILITY.............................20
3.2 EFFECTIVE DATE OF PARTICIPATION.......................20
3.3 DETERMINATION OF ELIGIBILITY..........................21
3.4 TERMINATION OF ELIGIBILITY............................21
3.5 OMISSION OF ELIGIBLE EMPLOYEE.........................21
3.6 INCLUSION OF INELIGIBLE EMPLOYEE......................21
3.7 ELECTION NOT TO PARTICIPATE...........................22
ARTICLE IV CONTRIBUTION AND ALLOCATION...........................22
4.1 FORMULA FOR DETERMINING EMPLOYER CONTRIBUTION.........22
4.2 PARTICIPANT'S SALARY REDUCTION ELECTION...............22
4.3 TIME OF PAYMENT OF EMPLOYER CONTRIBUTION..............26
4.4 ALLOCATION OF CONTRIBUTION, FORFEITURES AND
EARNINGS..............................................27
4.5 ACTUAL DEFERRAL PERCENTAGE TESTS......................30
4.6 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS........33
4.7 ACTUAL CONTRIBUTION PERCENTAGE TESTS..................34
4.8 ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE
TESTS.................................................37
4.9 MAXIMUM ANNUAL ADDITIONS..............................39
4.10 ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS.............41
4.11 TRANSFERS FROM QUALIFIED PLANS........................42
4.12 DIRECTED INVESTMENT ACCOUNT...........................43
ARTICLE V VALUATIONS............................................45
5.1 VALUATION OF THE TRUST FUND...........................45
5.2 METHOD OF VALUATION...................................45
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
ARTICLE VI DETERMINATION AND DISTRIBUTION OF BENEFITS............46
6.1 DETERMINATION OF BENEFITS UPON RETIREMENT.............46
6.2 DETERMINATION OF BENEFITS UPON DEATH..................46
6.3 DETERMINATION OF BENEFITS IN EVENT OF DISABILITY......47
6.4 DETERMINATION OF BENEFITS UPON TERMINATION............47
6.5 DISTRIBUTION OF BENEFITS..............................51
6.6 DISTRIBUTION OF BENEFITS UPON DEATH...................53
6.7 TIME OF SEGREGATION OR DISTRIBUTION...................54
6.8 DISTRIBUTION FOR MINOR BENEFICIARY....................54
6.9 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN........54
6.10 PRE-RETIREMENT DISTRIBUTION...........................55
6.11 ADVANCE DISTRIBUTION FOR HARDSHIP.....................55
6.12 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION.......57
6.13 DIRECT ROLLOVER.......................................57
ARTICLE VII AMENDMENT, TERMINATION, MERGERS AND LOANS.............58
7.1 AMENDMENT.............................................58
7.2 TERMINATION...........................................59
7.3 MERGER OR CONSOLIDATION...............................59
7.4 LOANS TO PARTICIPANTS.................................59
ARTICLE VIII TOP HEAVY.............................................61
8.1 TOP HEAVY PLAN REQUIREMENTS...........................61
8.2 DETERMINATION OF TOP HEAVY STATUS.....................61
ARTICLE IX MISCELLANEOUS.........................................64
9.1 PARTICIPANT'S RIGHTS..................................64
9.2 ALIENATION............................................65
9.3 CONSTRUCTION OF PLAN..................................65
9.4 GENDER AND NUMBER.....................................66
9.5 LEGAL ACTION..........................................66
9.6 PROHIBITION AGAINST DIVERSION OF FUNDS................66
9.7 BONDING...............................................66
9.8 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE............67
9.9 INSURER'S PROTECTIVE CLAUSE...........................67
9.10 RECEIPT AND RELEASE FOR PAYMENTS......................67
9.11 ACTION BY THE EMPLOYER................................67
9.12 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY....67
9.13 UNIFORMITY............................................68
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
ARTICLE X PARTICIPATING EMPLOYERS...............................68
10.1 ADOPTION BY OTHER EMPLOYERS...........................68
10.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS...............68
10.3 DESIGNATION OF AGENT..................................69
10.4 EMPLOYEE TRANSFERS....................................69
10.5 PARTICIPATING EMPLOYER CONTRIBUTION...................70
10.6 AMENDMENT.............................................70
10.7 DISCONTINUANCE OF PARTICIPATION.......................70
10.8 ADMINISTRATOR'S AUTHORITY.............................70
10.9 TRUST EXCULPATION CLAUSE..............................71
</TABLE>
iii
<PAGE>
NEW PLAN REALTY TRUST
RETIREMENT AND 401(K) SAVINGS PLAN
THIS PLAN, hereby adopted this 27th day of February, 1998, by New
Plan Realty Trust (herein referred to as the "Employer").
W I T N E S S E T H:
WHEREAS, the Employer heretofore established a 401(k) Plan effective
August 1, 1989, (hereinafter called the "Effective Date") known as New Plan
Realty Trust Retirement Savings Plan and which plan shall hereinafter be known
as New Plan Realty Trust Retirement and 401(k) Savings Plan (herein referred to
as the "Plan") in recognition of the contribution made to its successful
operation by its employees and for the exclusive benefit of its eligible
employees; and
WHEREAS, under the terms of the Plan, the Employer has the ability to
amend the Plan, provided the Trustee joins in such amendment if the provisions
of the Plan affecting the Trustee are amended;
NOW, THEREFORE, effective March 1, 1998, except as otherwise provided,
the Employer in accordance with the provisions of the Plan pertaining to
amendments thereof, hereby amends the Plan in its entirety and restates the Plan
to provide as follows:
ARTICLE I
DEFINITIONS
1.1 "Act" means the Employee Retirement Income Security Act of 1974, as it
may be amended from time to time.
1.2 "Administrator" means the Employer unless another person or entity has
been designated by the Employer pursuant to Section 2.2 to administer the Plan
on behalf of the Employer.
1.3 "Affiliated Employer" means any corporation which is a member of a
controlled group of corporations (as defined in Code Section 414(b)) which
includes the Employer; any trade or business (whether or not incorporated) which
is under common control (as defined in Code Section 414(c)) with the Employer;
any organization (whether or not incorporated) which is a member of an
affiliated service group (as defined in Code Section 414(m)) which includes the
Employer; and any other entity required to be aggregated with the Employer
pursuant to Regulations under Code Section 414(o).
1.4 "Aggregate Account" means, with respect to each Participant, the value
of all accounts maintained on behalf of a Participant, whether attributable to
Employer or Employee contributions, subject to the provisions of Section 8.2.
1.5 "Anniversary Date" means December 31st.
<PAGE>
1.6 "Beneficiary" means the person to whom the share of a deceased
Participant's total account is payable, subject to the restrictions of Sections
6.2 and 6.6.
1.7 "Code" means the Internal Revenue Code of 1986, as amended or replaced
from time to time.
1.8 "Compensation" with respect to any Participant means such
Participant's wages as defined in Code Section 3401(a) and all other payments of
compensation by the Employer (in the course of the Employer's trade or business)
for a Plan Year for which the Employer is required to furnish the Participant a
written statement under Code Sections 6041(d), 605l(a)(3) and 6052. Compensation
must be determined without regard to any rules under Code 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 Code Section 3401(a)(2)).
For purposes of this Section, the determination of Compensation shall
be made by:
(a) including amounts which are contributed by the Employer
pursuant to a salary reduction agreement and which are not includible
in the gross income of the Participant under Code Sections 125,
402(e)(3), 402(h)(1)(B), 403(b) or 457(b), and Employee contributions
described in Code Section 414(h)(2) that are treated as Employer
contributions.
For a Participant's initial year of participation, Compensation shall
be recognized for the entire Plan Year.
Compensation in excess of $150,000 shall be disregarded. Such amount
shall be adjusted for increases in the cost of living in accordance with Code
Section 401(a)(17), except that the dollar increase in effect on January 1 of
any calendar year shall be effective for the Plan Year beginning with or within
such calendar year. For any short Plan Year the Compensation limit shall be an
amount equal to the Compensation limit for the calendar year in which the Plan
Year begins multiplied by the ratio obtained by dividing the number of full
months in the short Plan Year by twelve (12). In applying this limitation, the
family group of a Highly Compensated Participant who is subject to the Family
Member aggregation rules of Code Section 414(q)(6) because such Participant is
either a "five percent owner" of the Employer or one of the ten (10) Highly
Compensated Employees paid the greatest "415 Compensation" during the year,
shall be treated as a single Participant, except that for this purpose Family
Members shall include only the affected Participant's spouse and any lineal
descendants who have not attained age nineteen (19) before the close of the
year. If, as a result of the application of such rules the adjusted limitation
is exceeded, then the limitation shall be prorated among the affected Family
Members in proportion to each such Family Member's Compensation prior to the
application of this limitation, or the limitation shall be adjusted in
accordance with any other method permitted by Regulation.
2
<PAGE>
If, as a result of such rules, the maximum "annual addition" limit of
Section 4.9(a) would be exceeded for one or more of the affected Family Members,
the prorated Compensation of all affected Family Members shall be adjusted to
avoid or reduce any excess. The prorated Compensation of any affected Family
Member whose allocation would exceed the limit shall be adjusted downward to the
level needed to provide an allocation equal to such limit. The prorated
Compensation of affected Family Members not affected by such limit shall then be
adjusted upward on a pro rata basis not to exceed each such affected Family
Member's Compensation as determined prior to application of the Family Member
rule. The resulting allocation shall not exceed such individual's maximum
"annual addition" limit. If, after these adjustments, an "excess amount" still
results, such "excess amount" shall be disposed of in the manner described in
Section 4.10(a) pro rata among all affected Family Members.
For purposes of this Section, if the Plan is a plan described in Code
Section 413(c) or 414(f) (a plan maintained by more than one Employer), the
limitation applies separately with respect to the Compensation of any
Participant from each Employer maintaining the Plan.
If, in connection with the adoption of this amendment and restatement,
the definition of Compensation has been modified, then, for Plan Years prior to
the Plan Year which includes the adoption date of this amendment and
restatement, Compensation means compensation determined pursuant to the Plan
then in effect.
1.9 "Contract" or "Policy" means any life insurance policy, retirement
income or annuity policy, or annuity contract (group or individual) issued
pursuant to the terms of the Plan.
1.10 "Deferred Compensation" with respect to any Participant means the
amount of the Participant's total Compensation which has been contributed to the
Plan in accordance with the Participant's deferral election pursuant to Section
4.2 excluding any such amounts distributed as excess "annual additions" pursuant
to Section 4.10(a).
1.11 "Designated Investment Alternative" means a specific investment
identified by name by a Fiduciary as an available investment under the Plan
which may be acquired or disposed of by the Trustee pursuant to the investment
direction by a Participant.
1.12 "Directed Investment Option" means one or more of the following:
(a) a Designated Investment Alternative.
(b) any other investment permitted by the Plan and the
Participant Direction Procedures and acquired or disposed of by the
Trustee pursuant to the investment direction of a Participant.
1.13 "Early Retirement Date." This Plan does not provide for a retirement
date prior to Normal Retirement Date.
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1.14 "Elective Contribution" means the Employer contributions to the Plan
of Deferred Compensation excluding any such amounts distributed as excess
"annual additions" pursuant to Section 4.10(a). In addition, any Employer
Qualified Non-Elective Contribution made pursuant to Section 4.l(c) and Section
4.6(b) which is used to satisfy the "Actual Deferral Percentage" tests shall be
considered an Elective Contribution for purposes of the Plan. Any contributions
deemed to be Elective Contributions (whether or not used to satisfy the "Actual
Deferral Percentage" tests) shall be subject to the requirements of Sections
4.2(b) and 4.2(c) and shall further be required to satisfy the nondiscrimination
requirements of Regulation 1.401(k)-1(b)(5), the provisions of which are
specifically incorporated herein by reference.
1.15 "Eligible Employee" means any Employee.
Employees whose employment is governed by the terms of a collective
bargaining agreement between Employee representatives (within the meaning of
Code Section 7701(a)(46)) and the Employer under which retirement benefits were
the subject of good faith bargaining between the parties will not be eligible to
participate in this Plan unless such agreement expressly provides for coverage
in this Plan.
Employees of Affiliated Employers shall not be eligible to participate
in this Plan unless such Affiliated Employers have specifically adopted this
Plan in writing.
1.16 "Employee" means any person who is employed by the Employer or
Affiliated Employer. Employee shall include Leased Employees within the meaning
of Code Sections 414(n)(2) and 414(o)(2) unless such Leased Employees are
covered by a plan described in Code Section 414(n)(5) and such Leased Employees
do not constitute more than 20% of the recipient's non-highly compensated work
force.
1.17 "Employer" means New Plan Realty Trust and any successor which shall
maintain this Plan; and any predecessor which has maintained this Plan. The
Employer is a Massachusetts Business Trust, with principal offices in the State
of New York. In addition, where appropriate, the term Employer shall include
any Participating Employer (as defined in Section 10.1) which shall adopt this
Plan.
1.18 "Excess Aggregate Contributions" means, with respect to any Plan Year,
the excess of the aggregate amount of the Employer matching contributions made
pursuant to Section 4.1(b) and any qualified non-elective contributions or
elective deferrals taken into account pursuant to Section 4.7(c) on behalf of
Highly Compensated Participants for such Plan Year, over the maximum amount of
such contributions permitted under the limitations of Section 4.7(a).
1.19 "Excess Contributions" means, with respect to a Plan Year, the excess
of Elective Contributions used to satisfy the "Actual Deferral Percentage" tests
made on behalf of Highly Compensated Participants for the Plan Year over the
maximum amount of such contributions
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permitted under Section 4.5(a). Excess Contributions shall be treated as an
"annual addition" pursuant to Section 4.9(b).
1.20 "Excess Deferred Compensation" means, with respect to any taxable year
of a Participant, the excess of the aggregate amount of such Participant's
Deferred Compensation and the elective deferrals pursuant to Section 4.2(f)
actually made on behalf of such Participant for such taxable year, over the
dollar limitation provided for in Code Section 402(g), which is incorporated
herein by reference. Excess Deferred Compensation shall be treated as an
"annual addition" pursuant to Section 4.9(b) when contributed to the Plan unless
distributed to the affected Participant not later than the first April 15th
following the close of the Participant's taxable year. Additionally, for
purposes of Sections 8.2 and 4.4(h), Excess Deferred Compensation shall continue
to be treated as Employer contributions even if distributed pursuant to Section
4.2(f). However, Excess Deferred Compensation of Non-Highly Compensated
Participants is not taken into account for purposes of Section 4.5(a) to the
extent such Excess Deferred Compensation occurs pursuant to Section 4.2(d).
1.21 "Family Member" means, with respect to an affected Participant, such
Participant's spouse and such Participant's lineal descendants and ascendants
and their spouses, all as described in Code Section 414(q)(6)(B).
1.22 "Fiduciary" means any person who (a) exercises any discretionary
authority or discretionary control respecting management of the Plan or
exercises any authority or control respecting management or disposition of its
assets, (b) renders investment advice for a fee or other compensation, direct or
indirect, with respect to any monies or other property of the Plan or has any
authority or responsibility to do so, or (c) has any discretionary authority or
discretionary responsibility in the administration of the Plan, including, but
not limited to, the Trustee, the Employer and its representative body, and the
Administrator.
1.23 "Fiscal Year" means the Employer's accounting year of 12 months
commencing on August 1st of each year and ending the following July 3lst.
1.24 "Forfeiture" means that portion of a Participant's Account that is not
Vested, and occurs on the earlier of:
(a) the distribution of the entire Vested portion of a
Terminated Participant's Account, or
(b) the last day of the Plan Year in which the Participant
incurs five (5) consecutive 1-Year Break in Service.
Furthermore, for purposes of paragraph (a) above, in the case of a
Terminated Participant whose Vested benefit is zero, such Terminated Participant
shall be deemed to have received a distribution of his Vested benefit upon his
termination of employment. Restoration of
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such amounts shall occur pursuant to Section 6.4(f)(2). In addition, the term
Forfeiture shall also include amounts deemed to be Forfeitures pursuant to any
other provision of this Plan.
1.25 "Former Participant" means a person who has been a Participant, but
who has ceased to be a Participant for any reason.
1.26 "415 Compensation" with respect to any Participant means such
Participant's wages as defined in Code Section 3401(a) and all other payments of
compensation by the Employer (in the course of the Employer's trade or business)
for a Plan Year for which the Employer is required to furnish the Participant a
written statement under Code Sections 6041(d), 6051(a)(3) and 6052. "415
Compensation" must be determined without regard to any rules under Code 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 Code Section 3401(a)(2)).
If, in connection with the adoption of this amendment and restatement,
the definition of "415 Compensation" has been modified, then, for Plan Years
prior to the Plan Year which includes the adoption date of this amendment and
restatement, "415 Compensation" means compensation determined pursuant to the
Plan then in effect.
1.27 "414(s) Compensation" with respect to any Participant means such
Participant's "415 Compensation" paid during a Plan Year. The amount of "414(s)
Compensation" with respect to any Participant shall include "414(s)
Compensation" for the entire twelve (12) month period ending on the last day of
such Plan Year.
For purposes of this Section, the determination of "414(s)
Compensation" shall be made by including amounts which are contributed by the
Employer pursuant to a salary reduction agreement and which are not includible
in the gross income of the Participant under Code Sections 125, 402(e)(3),
402(h)(1)(B), 403(b) or 457(b), and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer contributions.
"414(s) Compensation" in excess of $150,000 shall be disregarded. Such
amount shall be adjusted for increases in the cost of living in accordance with
Code Section 401(a)(17), except that the dollar increase in effect on January 1
of any calendar year shall be effective for the Plan Year beginning with or
within such calendar year. For any short Plan Year the "414(s) Compensation"
limit shall be an amount equal to the "414(s) Compensation" limit for the
calendar year in which the Plan Year begins multiplied by the ratio obtained by
dividing the number of full months in the short Plan Year by twelve (12). In
applying this limitation, the family group of a Highly Compensated Participant
who is subject to the Family Member aggregation rules of Code Section 414(q)(6)
because such Participant is either a "five percent owner" of the Employer or one
of the ten (10) Highly Compensated Employees paid the greatest "415
Compensation" during the year, shall be treated as a single Participant, except
that for this purpose Family Members shall include only the affected
Participant's spouse and any lineal descendants who have not attained age
nineteen (19) before the close of the year.
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If, in connection with the adoption of this amendment and restatement,
the definition of "414(s) Compensation" has been modified, then, for Plan Years
prior to the Plan Year which includes the adoption date of this amendment and
restatement, "414(s) Compensation" means compensation determined pursuant to the
Plan then in effect.
1.28 "Highly Compensated Employee" means an Employee described in Code
Section 414(q) and the Regulations thereunder, and generally means an Employee
who performed services for the Employer during the "determination year" and is
in one or more of the following groups:
(a) Employees who at any time during the "determination year" or
"look-back year" were "five percent owners" as defined in Section
1.34(c).
(b) Employees who received "415 Compensation" during the "look-
back year" from the Employer in excess of $75,000.
(c) Employees who received "415 Compensation" during the "look-
back year" from the Employer in excess of $50,000 and were in the Top
Paid Group of Employees for the Plan Year.
(d) Employees who during the "look-back year" were officers of
the Employer (as that term is defined within the meaning of the
Regulations under Code Section 416) and received "415 Compensation"
during the "look-back year" from the Employer greater than 50 percent
of the limit in effect under Code Section 415(b)(1)(A) for any such
Plan Year. The number of officers shall be limited to the lesser of
(i) 50 employees; or (ii) the greater of 3 employees or 10 percent of
all employees. For the purpose of determining the number of officers,
Employees described in Section 1.59(a), (b), (c) and (d) shall be
excluded, but such Employees shall still be considered for the purpose
of identifying the particular Employees who are officers. If the
Employer does not have at least one officer whose annual "415
Compensation" is in excess of 50 percent of the Code Section
415(b)(1)(A) limit, then the highest paid officer of the Employer will
be treated as a Highly Compensated Employee.
(e) Employees who are in the group consisting of the 100
Employees paid the greatest "415 Compensation" during the
"determination year" and are also described in (b), (c) or (d) above
when these paragraphs are modified to substitute "determination year"
for "look-back year."
The "determination year" shall be the Plan Year for which testing is
being performed, and the "look-back year" shall be the immediately preceding
twelve-month period.
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If an Employee is, during a "determination year" or "look-back year",
a Family Member of either a "five percent owner" (whether active or former) or a
Highly Compensated Employee who is one of the 10 most Highly Compensated
Employees ranked on the basis of "415 Compensation" paid by the Employer during
such year, then the Family Member and the "five percent owner" or top-ten Highly
Compensated Employee shall be aggregated. In such case, the Family Member and
"five percent owner" or top-ten Highly Compensated Employee shall be treated as
a single Employee receiving "415 Compensation" and Plan contributions or
benefits equal to the sum of such "415 Compensation" and contributions or
benefits of the Family Member and "five percent owner" or top-ten Highly
Compensated Employee.
For purposes of this Section, the determination of "415 Compensation"
shall be made by including amounts which are contributed by the Employer
pursuant to a salary reduction agreement and which are not includible in the
gross income of the Participant under Code Sections 125, 402(e)(3),
402(h)(1)(B), 403(b) or 457(b), and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer contributions. Additionally, the
dollar threshold amounts specified in (b) and (c) above shall be adjusted at
such time and in such manner as is provided in Regulations. In the case of such
an adjustment, the dollar limits which shall be applied are those for the
calendar year in which the "determination year" or "look-back year" begins.
In determining who is a Highly Compensated Employee, Employees who are
non-resident aliens and who received no earned income (within the meaning of
Code Section 911(d)(2)) from the Employer constituting United States source
income within the meaning of Code Section 861(a)(3) shall not be treated as
Employees. Additionally, all Affiliated Employers shall be taken into account as
a single Employer and Leased Employees within the meaning of Code Sections
414(n)(2) and 414(o)(2) shall be considered Employees unless such Leased
Employees are covered by a plan described in Code Section 414(n)(5) and are not
covered in any qualified plan maintained by the Employer. The exclusion of
Leased Employees for this purpose shall be applied on a uniform and consistent
basis for all of the Employer's retirement plans. Highly Compensated Former
Employees shall be treated as Highly Compensated Employees without regard to
whether they performed services during the "determination year."
1.29 "Highly Compensated Former Employee" means a former Employee who had a
separation year prior to the "determination year" and was a Highly Compensated
Employee in the year of separation from service or in any "determination year"
after attaining age 55. Notwithstanding the foregoing, an Employee who separated
from service prior to 1987 will be treated as a Highly Compensated Former
Employee only if during the separation year (or year preceding the separation
year) or any year after the Employee attains age 55 (or the last year ending
before the Employee's 55th birthday), the Employee either received "415
Compensation" in excess of $50,000 or was a "five percent owner." For purposes
of this Section, "determination year," "415 Compensation" and "five percent
owner" shall be determined in accordance with Section 1.28. Highly Compensated
Former Employees shall be treated as Highly Compensated Employees. The method
set forth in this Section for determining who is a "Highly Compensated Former
Employee"
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<PAGE>
shall be applied on a uniform and consistent basis for all purposes for which
the Code Section 414(q) definition is applicable.
1.30 "Highly Compensated Participant" means any Highly Compensated Employee
who is eligible to participate in the Plan.
1.31 "Hour of Service" means (1) each hour for which an Employee is
directly or indirectly compensated or entitled to compensation by the Employer
for the performance of duties (these hours will be credited to the Employee for
the computation period in which the duties are performed); (2) each hour for
which an Employee is directly or indirectly compensated or entitled to
compensation by the Employer (irrespective of whether the employment
relationship has terminated) for reasons other than performance of duties (such
as vacation, holidays, sickness, jury duty, disability, lay-off, military duty
or leave of absence) during the applicable computation period (these hours will
be calculated and credited pursuant to Department of Labor regulation 2530.200b-
2 which is incorporated herein by reference); (3) each hour for which back pay
is awarded or agreed to by the Employer without regard to mitigation of damages
(these hours will 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). The same Hours of
Service shall not be credited both under (1) or (2), as the case may be, and
under (3).
Notwithstanding the above, (i) no more than 501 Hours of Service are
required to be credited to an Employee on account of any single continuous
period during which the Employee performs no duties (whether or not such period
occurs in a single computation period); (ii) an hour for which an Employee is
directly or indirectly paid, or entitled to payment, on account of a period
during which no duties are performed is not required to be credited to the
Employee if such payment is made or due under a plan maintained solely for the
purpose of complying with applicable worker's compensation, or unemployment
compensation or disability insurance laws; and (iii) Hours of Service are not
required to be credited for a payment which solely reimburses an Employee for
medical or medically related expenses incurred by the Employee.
For purposes of this Section, a payment shall be deemed to be made by
or due from the Employer regardless of whether such payment is made by or due
from the Employer directly, or indirectly through, among others, a trust fund,
or insurer, to which the Employer contributes or pays premiums and regardless of
whether contributions made or due to the trust fund, insurer, or other entity
are for the benefit of particular Employees or are on behalf of a group of
Employees in the aggregate.
For purposes of this Section, Hours of Service will be credited for
employment with other Affiliated Employers. The provisions of Department of
Labor regulations 2530.200b-2(b) and (c) are incorporated herein by reference.
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1.32 "Income" means the income or losses allocable to Excess Deferred
Compensation, Excess Contributions or Excess Aggregate Contributions which
amount shall be allocated in the same manner as income or losses are allocated
pursuant to Section 4.4(f).
1.33 "Investment Manager" means an entity that (a) has the power to manage,
acquire, or dispose of Plan assets and (b) acknowledges fiduciary responsibility
to the Plan in writing. Such entity must be person, firm, or corporation
registered as an investment adviser under the Investment Advisers Act of 1940, a
bank, or an insurance company.
1.34 "Key Employee" means an Employee as defined in Code Section 416(i) and
the Regulations thereunder. Generally, any Employee or former Employee (as well
as each of his Beneficiaries) is considered a Key Employee if he, at any time
during the Plan Year that contains the "Determination Date" or any of the
preceding four (4) Plan Years, has been included in one of the following
categories:
(a) an officer of the Employer (as that term is defined within
the meaning of the Regulations under Code Section 416) having annual
"415 Compensation" greater than 50 percent of the amount in effect
under Code Section 415(b)(1)(A) for any such Plan Year.
(b) one of the ten employees having annual "415 Compensation"
from the Employer for a Plan Year greater than the dollar limitation
in effect under Code Section 415(c)(1)(A) for the calendar year in
which such Plan Year ends and owning (or considered as owning within
the meaning of Code Section 318) both more than one-half percent
interest and the largest interests in the Employer.
(c) a "five percent owner" of the Employer. "Five percent owner"
means any person who owns (or is considered as owning within the
meaning of Code Section 318) more than five percent (5%) of the
outstanding stock of the Employer or stock possessing more than five
percent (5%) of the total combined voting power of all stock of the
Employer or, in the case of an unincorporated business, any person who
owns more than five percent (5%) of the capital or profits interest in
the Employer. In determining percentage ownership hereunder, employers
that would otherwise be aggregated under Code Sections 414(b), (c),
(m) and (o) shall be treated as separate employers.
(d) a "one percent owner" of the Employer having an annual "415
Compensation" from the Employer of more than $150,000. "One percent
owner" means any person who owns (or is considered as owning within
the meaning of Code Section 318) more than one percent (1%) of the
outstanding stock of the Employer or stock possessing more than one
percent (1%) of the total combined voting power of all stock of the
Employer or, in the case of an unincorporated business, any person who
owns more than one percent (1%) of the capital or profits interest in
the
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Employer. In determining percentage ownership hereunder, employers
that would otherwise be aggregated under Code Sections 414(b), (c),
(m) and (o) shall be treated as separate employers. However, in
determining whether an individual has "415 Compensation" of more than
$150,000, "415 Compensation" from each Employer required to be
aggregated under Code Sections 414(b), (c), (m) and (o) shall be taken
into account.
For purposes of this Section, the determination of "415 Compensation"
shall be made by including amounts which are contributed by the Employer
pursuant to a salary reduction agreement and which are not includible in
the gross income of the Participant under Code Sections 125, 402(e)(3),
402(h)(1)(B), 403(b) or 457(b), and Employee contributions described in
Code Section 414(h)(2) that are treated as Employer contributions.
1.35 "Late Retirement Date" means the first day of the month coinciding
with or next following a Participant's actual Retirement Date after having
reached his Normal Retirement Date.
1.36 "Leased Employee" means any person (other than an Employee of the
recipient) who pursuant to an agreement between the recipient and any other
person ("leasing organization") has performed services for the recipient (or for
the recipient 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 recipient employer. Contributions or benefits provided a
Leased Employee by the leasing organization which are attributable to services
performed for the recipient Employer shall be treated as provided by the
recipient employer. A Leased Employee shall not be considered an Employee of the
recipient:
(a) if such employee is covered by a money purchase pension plan
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 which are contributed by the Employer pursuant
to a salary reduction agreement and which are not includible in
the gross income of the Participant under Code Sections 125,
402(e)(3), 402(h)(1)(B), 403(b) or 457(b), and Employee
contributions described in Code Section 414(h)(2) that are
treated as Employer contributions.
(2) immediate participation; and
(3) full and immediate vesting; and
(b) if Leased Employees do not constitute more than 20% of the
recipient's non-highly compensated work force.
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1.37 "Non-Elective Contribution" means the Employer contributions to the
Plan excluding, however, contributions made pursuant to the Participant's
deferral election provided for in Section 4.2 and any Qualified Non-Elective
Contribution used in the "Actual Deferral Percentage" tests.
1.38 "Non-Highly Compensated Participant" means any Participant who is
neither a Highly Compensated Employee nor a Family Member.
1.39 "Non-Key Employee" means any Employee or former Employee (and his
Beneficiaries) who is not a Key Employee.
1.40 "Normal Retirement Age" means the Participant's sixty-fifth (65th)
birthday. A Participant shall become fully Vested in his Participant's Account
upon attaining his Normal Retirement Age.
1.41 "Normal Retirement Date" means the first day of the month coinciding
with or next following the Participant's Normal Retirement Age.
1.42 "l-Year Break in Service" means the applicable computation period
during which an Employee has not completed more than 500 Hours of Service with
the Employer. Further, solely for the purpose of determining whether a
Participant has incurred a 1-Year Break in Service, Hours of Service shall be
recognized for "authorized leaves of absence" and "maternity and paternity
leaves of absence." Years of Service and 1-Year Breaks in Service shall be
measured on the same computation period.
"Authorized leave of absence" means an unpaid, temporary cessation
from active employment with the Employer pursuant to an established
nondiscriminatory policy, whether occasioned by illness, military service, or
any other reason.
A "maternity or paternity leave of absence" means, for Plan Years
beginning after December 31, 1984, an absence from work for any period by reason
of the Employee's pregnancy, birth of the Employee's child, placement of a child
with the Employee in connection with the adoption of such child, or any absence
for the purpose of caring for such child for a period immediately following such
birth or placement. For this purpose, Hours of Service shall be credited for the
computation period in which the absence from work begins, only if credit
therefore is necessary to prevent the Employee from incurring a 1-Year Break in
Service, or, in any other case, in the immediately following computation period.
The Hours of Service credited for a "maternity or paternity leave of absence"
shall be those which would normally have been credited but for such absence, or,
in any case in which the Administrator is unable to determine such hours
normally credited, eight (8) Hours of Service per day. The total Hours of
Service required to be credited for a "maternity or paternity leave of absence"
shall not exceed 501.
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1.43 "Participant" means any Eligible Employee who participates in the Plan
and has not for any reason become ineligible to participate further in the Plan.
1.44 "Participant Direction Procedures" means such instructions, guidelines
or policies, the terms of which are incorporated herein, as shall be established
pursuant to Section 4.12 and observed by the Administrator and applied and
provided to Participants who have Participant Directed Accounts.
1.45 "Participant's Account" means the account established and maintained
by the Administrator for each Participant with respect to his total interest in
the Plan and Trust resulting from the Employer Non-Elective Contributions.
A separate accounting shall be maintained with respect to that portion
of the Participant's Account attributable to Employer matching contributions
made pursuant to Section 4.1(b), Employer discretionary contributions made
pursuant to Section 4.1(d) and any Employer Qualified Non-Elective
Contributions.
1.46 "Participant's Combined Account" means the total aggregate amount of
each Participant's Elective Account and Participant's Account.
1.47 "Participant's Directed Account" means that portion of a Participant's
interest in the Plan with respect to which the Participant has directed the
investment in accordance with the Participant Direction Procedure.
1.48 "Participant's Elective Account" means the account established and
maintained by the Administrator for each Participant with respect to his total
interest in the Plan and Trust resulting from the Employer Elective
Contributions used to satisfy the "Actual Deferral Percentage" tests. A separate
accounting shall be maintained with respect to that portion of the Participant's
Elective Account attributable to such Elective Contributions pursuant to Section
4.2 and any Employer Qualified Non-Elective Contributions.
1.49 "Plan" means this instrument, including all amendments thereto.
1.50 "Plan Year" means the Plan's accounting year of twelve (12) months
commencing on January 1st of each year and ending the following December 31st.
1.51 "Qualified Non-Elective Contribution" means any Employer contributions
made pursuant to Section 4.1(c) and Section 4.6(b) and Section 4.8(h). Such
contributions shall be considered an Elective Contribution for the purposes of
the Plan and may be used to satisfy the "Actual Deferral Percentage" tests or
the "Actual Contribution Percentage" tests.
1.52 "Regulation" means the Income Tax Regulations as promulgated by the
Secretary of the Treasury or his delegate, and as amended from time to time.
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1.53 "Retired Participant" means a person who has been a Participant, but
who has become entitled to retirement benefits under the Plan.
1.54 "Retirement Date" means the date as of which a Participant retires for
reasons other than Total and Permanent Disability, whether such retirement
occurs on a Participant's Normal Retirement Date or Late Retirement Date (see
Section 6.1).
1.55 "Super Top Heavy Plan" means a plan described in Section 8.2(b).
1.56 "Terminated Participant" means a person who has been a Participant,
but whose employment has been terminated other than by death, Total and
Permanent Disability or retirement.
1.57 "Top Heavy Plan" means a plan described in Section 8.2(a).
1.58 "Top Heavy Plan Year" means a Plan Year during which the Plan is a Top
Heavy Plan.
1.59 "Top Paid Group" means the top 20 percent of Employees who performed
services for the Employer during the applicable year, ranked according to the
amount of "415 Compensation" (determined for this purpose in accordance with
Section 1.28) received from the Employer during such year. All Affiliated
Employers shall be taken into account as a single Employer, and Leased Employees
within the meaning of Code Sections 414(n)(2) and 414(o)(2) shall be considered
Employees unless such Leased Employees are covered by a plan described in Code
Section 414(n)(5) and are not covered in any qualified plan maintained by the
Employer. Employees who are non-resident aliens and who received no earned
income (within the meaning of Code Section 911(d)(2)) from the Employer
constituting United States source income within the meaning of Code Section
861(a)(3) shall not be treated as Employees. Additionally, for the purpose of
determining the number of active Employees in any year, the following additional
Employees shall also be excluded; however, such Employees shall still be
considered for the purpose of identifying the particular Employees in the Top
Paid Group:
(a) Employees with less than six (6) months of service;
(b) Employees who normally work less than 17 1/2 hours per week;
(c) Employees who normally work less than six (6) months during a
year; and
(d) Employees who have not yet attained age 21.
In addition, if 90 percent or more of the Employees of the Employer
are covered under agreements the Secretary of Labor finds to be collective
bargaining agreements between Employee representatives and the Employer, and the
Plan covers only Employees who are not
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<PAGE>
covered under such agreements, then Employees covered by such agreements shall
be excluded from both the total number of active Employees as well as from the
identification of particular Employees in the Top Paid Group.
The foregoing exclusions set forth in this Section shall be applied on
a uniform and consistent basis for all purposes for which the Code Section
414(q) definition is applicable.
1.60 "Total and Permanent Disability" means a physical or mental condition
of a Participant resulting from bodily injury, disease, or mental disorder which
renders him incapable of continuing any gainful occupation and which condition
constitutes total disability under the federal Social Security Acts.
1.61 "Trustee" means the person or entity named as trustee herein or in any
separate trust forming a part of this Plan, and any successors.
1.62 "Trust Fund" means the assets of the Plan and Trust as the same shall
exist from time to time.
1.63 "USERRA" means the Uniformed Services Employment and Reemployment
Rights Act of 1994. Notwithstanding any provision of this Plan to the contrary,
contributions, benefits and service credit with respect to qualified military
service will be provided in accordance with Code Section 414(u).
1.64 "Valuation Date" means the Anniversary Date and such other date or
dates deemed necessary by the Administrator. The Valuation Date may include any
day during the Plan Year that the Trustee, any transfer agent appointed by the
Trustee or the Employer and any stock exchange used by such agent are open for
business.
1.65 "Vested" means the nonforfeitable portion of any account maintained on
behalf of a Participant.
1.66 "Year of Service" means the computation period of twelve (12)
consecutive months, herein set forth, during which an Employee has at least 1000
Hours of Service.
For purposes of eligibility for participation, the initial computation
period shall begin with the date on which the Employee first performs an Hour of
Service. The participation computation period beginning after a 1-Year Break in
Service shall be measured from the date on which an Employee again performs an
Hour of Service. The participation computation period shall shift to the Plan
Year which includes the anniversary of the date on which the Employee first
performed an Hour of Service. An Employee who is credited with the required
Hours of Service in both the initial computation period (or the computation
period beginning after a 1-Year Break in Service) and the Plan Year which
includes the anniversary of the date on which the Employee first
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performed an Hour of Service, shall be credited with two (2) Years of Service
for purposes of eligibility to participate.
For vesting purposes, the computation periods shall be the Plan Year,
including periods prior to the Effective Date of the Plan.
The computation period shall be the Plan Year if not otherwise set
forth herein.
Notwithstanding the foregoing, for any short Plan Year, the
determination of whether an Employee has completed a Year of Service shall be
made in accordance with Department of Labor regulation 2530.203-2(c). However,
in determining whether an Employee has completed a Year of Service for benefit
accrual purposes in the short Plan Year, the number of the Hours of Service
required shall be proportionately reduced based on the number of full months in
the short Plan Year.
Years of Service with any Affiliated Employer shall be recognized.
ARTICLE II
ADMINISTRATION
2.1 POWERS AND RESPONSIBILITIES OF THE EMPLOYER
(a) In addition to the general powers and responsibilities
otherwise provided for in this Plan, the Employer shall be empowered
to appoint and remove the Trustee and the Administrator from time to
time as it deems necessary for the proper administration of the Plan
to ensure that the Plan is being operated for the exclusive benefit of
the Participants and their Beneficiaries in accordance with the terms
of the Plan, the Code, and the Act. The Employer may appoint counsel,
specialists, advisers, agents (including any nonfiduciary agent) and
other persons as the Employer deems necessary or desirable in
connection with the exercise of its fiduciary duties under this Plan.
The Employer may compensate such agents or advisers from the assets of
the Plan as fiduciary expenses (but not including any business
(settlor) expenses of the Employer), to the extent not paid by the
Employer.
(b) The Employer may, by written agreement or designation,
appoint at its option an Investment Manager (qualified under the
Investment Company Act of 1940 as amended), investment adviser, or
other agent to provide direction to the Trustee with respect to any or
all of the Plan assets. Such appointment shall be given by the
Employer in writing in a form acceptable to the Trustee and shall
specifically identify the Plan assets with respect to which the
Investment Manager or other agent shall have authority to direct the
investment.
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(c) The Employer shall establish a "funding policy and method,"
i.e., it shall determine whether the Plan has a short run need for
liquidity (e.g., to pay benefits) or whether liquidity is a long run
goal and investment growth (and stability of same) is a more current
need, or shall appoint a qualified person to do so. The Employer or
its delegate shall communicate such needs and goals to the Trustee,
who shall coordinate such Plan needs with its investment policy. The
communication of such a "funding policy and method" shall not,
however, constitute a directive to the Trustee as to investment of the
Trust Funds. Such "funding policy and method" shall be consistent with
the objectives of this Plan and with the requirements of Title I of
the Act.
(d) The Employer shall periodically review the performance of
any Fiduciary or other person to whom duties have been delegated or
allocated by it under the provisions of this Plan or pursuant to
procedures established hereunder. This requirement may be satisfied by
formal periodic review by the Employer or by a qualified person
specifically designated by the Employer, through day-to-day conduct
and evaluation, or through other appropriate ways.
2.2 DESIGNATION OF ADMINISTRATIVE AUTHORITY
The Employer shall be the Administrator. The Employer may appoint any
person, including, but not limited to, the Employees of the Employer, to perform
the duties of the Administrator. Any person so appointed shall signify his
acceptance by filing written acceptance with the Employer. Upon the resignation
or removal of any individual performing the duties of the Administrator, the
Employer may designate a successor.
2.3 POWERS AND DUTIES OF THE ADMINISTRATOR
The primary responsibility of the Administrator is to administer the
Plan for the exclusive benefit of the Participants and their Beneficiaries,
subject to the specific terms of the Plan. The Administrator shall administer
the Plan in accordance with its terms and shall have the power and discretion to
construe the terms of the Plan and to determine all questions arising in
connection with the administration, interpretation, and application of the Plan.
Any such determination by the Administrator shall be conclusive and binding upon
all persons. The Administrator may establish procedures, correct any defect,
supply any information, or reconcile any inconsistency in such manner and to
such extent as shall be deemed necessary or advisable to carry out the purpose
of the Plan; provided, however, that any procedure, discretionary act,
interpretation or construction shall be done in a nondiscriminatory manner based
upon uniform principles consistently applied and shall be consistent with the
intent that the Plan shall continue to be deemed a qualified plan under the
terms of Code Section 401(a), and shall comply with the terms of the Act and all
regulations issued pursuant thereto. The Administrator shall have all powers
necessary or appropriate to accomplish his duties under this Plan.
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The Administrator shall be charged with the duties of the general
administration of the Plan, including, but not limited to, the following:
(a) the discretion to determine all questions relating to the
eligibility of Employees to participate or remain a Participant
hereunder and to receive benefits under the Plan;
(b) to compute, certify, and direct the Trustee with respect to
the amount and the kind of benefits to which any Participant shall be
entitled hereunder;
(c) to authorize and direct the Trustee with respect to all
nondiscretionary or otherwise directed disbursements from the Trust;
(d) to maintain all necessary records for the administration of
the Plan;
(e) to interpret the provisions of the Plan and to make and
publish such rules for regulation of the Plan as are consistent with
the terms hereof;
(f) to determine the size and type of any Contract to be
purchased from any insurer, and to designate the insurer from which
such Contract shall be purchased;
(g) to compute and certify to the Employer and to the Trustee
from time to time the sums of money necessary or desirable to be
contributed to the Plan;
(h) to consult with the Employer and the Trustee regarding the
short and long-term liquidity needs of the Plan in order that the
Trustee can exercise any investment discretion in a manner designed to
accomplish specific objectives;
(i) to prepare and implement a procedure to notify Eligible
Employees that they may elect to have a portion of their Compensation
deferred or paid to them in cash;
(j) to act as the named Fiduciary responsible for communications
with Participants as needed to maintain Plan compliance with ERISA
Section 404(c), including but not limited to the receipt and
transmitting of Participant's directions as to the investment of their
account(s) under the Plan and the formulation of policies, rules, and
procedures pursuant to which Participants may give investment
instructions with respect to the investment of their accounts;
(k) to assist any Participant regarding his rights, benefits, or
elections available under the Plan.
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2.4 RECORDS AND REPORTS
The Administrator shall keep a record of all actions taken and shall
keep all other books of account, records, policies, and other data that may be
necessary for proper administration of the Plan and shall be responsible for
supplying all information and reports to the Internal Revenue Service,
Department of Labor, Participants, Beneficiaries and others as required by law.
2.5 APPOINTMENT OF ADVISERS
The Administrator, or the Trustee with the consent of the
Administrator, may appoint counsel, specialists, advisers, agents (including
nonfiduciary agents) and other persons as the Administrator or the Trustee deems
necessary or desirable in connection with the administration of this Plan,
including but not limited to agents and advisers to assist with the
administration and management of the Plan, and thereby to provide, among such
other duties as the Administrator may appoint, assistance with maintaining Plan
records and the providing of investment information to the Plan's investment
fiduciaries and to Plan Participants.
2.6 PAYMENT OF EXPENSES
All expenses of administration may be paid out of the Trust Fund
unless paid by the Employer. Such expenses shall include any expenses incident
to the functioning of the Administrator, or any person or persons retained or
appointed by any Named Fiduciary incident to the exercise of their duties under
the Plan, including, but not limited to, fees of accountants, counsel,
Investment Managers, agents (including nonfiduciary agents) appointed for the
purpose of assisting the Administrator or the Trustee in carrying out the
instructions of Participants as to the directed investment of their accounts and
other specialists and their agents, and other costs of administering the Plan.
Until paid, the expenses shall constitute a liability of the Trust Fund.
2.7 CLAIMS PROCEDURE
Claims for benefits under the Plan may be filed in writing with the
Administrator. Written notice of the disposition of a claim shall be furnished
to the claimant within 90 days after the application is filed. In the event the
claim is denied, the reasons for the denial shall be specifically set forth in
the notice in language calculated to be understood by the claimant, pertinent
provisions of the Plan shall be cited, and, where appropriate, an explanation as
to how the claimant can perfect the claim will be provided. In addition, the
claimant shall be furnished with an explanation of the Plan's claims review
procedure.
2.8 CLAIMS REVIEW PROCEDURE
Any Employee, former Employee, or Beneficiary of either, who has been
denied a benefit by a decision of the Administrator pursuant to Section 2.7
shall be entitled to request the Administrator to give further consideration to
his claim by filing with the Administrator (on a form
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which may be obtained from the Administrator) a request for a hearing. Such
request, together with a written statement of the reasons why the claimant
believes his claim should be allowed, shall be filed with the Administrator no
later than 60 days after receipt of the written notification provided for in
Section 2.7. The Administrator shall then conduct a hearing within the next 60
days, at which the claimant may be represented by an attorney or any other
representative of his choosing and at which the claimant shall have an
opportunity to submit written and oral evidence and arguments in support of his
claim. At the hearing (or prior thereto upon 5 business days written notice to
the Administrator) the claimant or his representative shall have an opportunity
to review all documents in the possession of the Administrator which are
pertinent to the claim at issue and its disallowance. Either the claimant or the
Administrator may cause a court reporter to attend the hearing and record the
proceedings. In such event, a complete written transcript of the proceedings
shall be furnished to both parties by the court reporter. The full expense of
any such court reporter and such transcripts shall be borne by the party causing
the court reporter to attend the hearing. A final decision as to the allowance
of the claim shall be made by the Administrator within 60 days of receipt of the
appeal (unless there has been an extension of 60 days due to special
circumstances, provided the delay and the special circumstances occasioning it
are communicated to the claimant within the 60 day period). Such communication
shall be written in a manner calculated to be understood by the claimant and
shall include specific reasons for the decision and specific references to the
pertinent Plan provisions on which the decision is based.
ARTICLE III
ELIGIBILITY
3.1 CONDITIONS OF ELIGIBILITY
Any Eligible Employee who commenced employment on or after March 1,
1998 and has completed one (1) Year of Service and has attained age 21 shall be
eligible to participate hereunder as of the date he has satisfied such
requirements. However, any Employee who was a Participant in the Plan prior to
the effective date of this amendment and restatement shall continue to
participate in the Plan and any Employee who commenced employment prior to March
1, 1998 and has completed six (6) Months of Service and attained age 21 shall be
eligible to participate in the Plan. An Employee shall have completed six (6)
Months of Service if he is in the employ of the Employer on his 6-month
anniversary of his employment commencement date with the Employer.
3.2 EFFECTIVE DATE OF PARTICIPATION
An Eligible Employee shall become a Participant effective as of the
earlier of the first day of the Plan Year or the first day of the fourth,
seventh or tenth month of such Plan Year coinciding with or next following the
date such Employee met the eligibility requirements of Section 3.1, provided
said Employee was still employed as of such date (or if not employed on such
date, as of the date of rehire if a 1-Year Break in Service has not occurred).
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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 will participate
immediately if such Employee has satisfied the minimum age and service
requirements and would have otherwise previously become a Participant.
3.3 DETERMINATION OF ELIGIBILITY
The Administrator shall determine the eligibility of each Employee for
participation in the Plan based upon information furnished by the Employer. Such
determination shall be conclusive and binding upon all persons, as long as the
same is made pursuant to the Plan and the Act. Such determination shall be
subject to review per Section 2.8.
3.4 TERMINATION OF ELIGIBILITY
(a) In the event a Participant shall go from a classification of
an Eligible Employee to an ineligible Employee, such Former
Participant shall continue to vest in his interest in the Plan for
each Year of Service completed while a noneligible Employee, until
such time as his Participant's Account shall be forfeited or
distributed pursuant to the terms of the Plan. Additionally, his
interest in the Plan shall continue to share in the earnings of the
Trust Fund.
(b) In the event a Participant is no longer a member of an
eligible class of Employees and becomes ineligible to participate,
such Employee will participate immediately upon returning to an
eligible class of Employees.
3.5 OMISSION OF ELIGIBLE EMPLOYEE
If, in any Plan Year, any Employee who should be included as a
Participant in the Plan is erroneously omitted and discovery of such omission is
not made until after a contribution by his Employer for the year has been made,
the Employer shall make a subsequent contribution with respect to the omitted
Employee in the amount which the said Employer would have contributed with
respect to him had he not been omitted. Such contribution shall be made
regardless of whether or not it is deductible in whole or in part in any taxable
year under applicable provisions of the Code.
3.6 INCLUSION OF INELIGIBLE EMPLOYEE
If, in any Plan Year, any person who should not have been included as
a Participant in the Plan is erroneously included and discovery of such
incorrect inclusion is not made until after a contribution for the year has been
made, the Employer shall not be entitled to recover the contribution made with
respect to the ineligible person regardless of whether or not a deduction is
allowable with respect to such contribution. In such event, the amount
contributed with respect to the ineligible person shall constitute a Forfeiture
(except for Deferred Compensation which shall be distributed to the ineligible
person) for the Plan Year in which the discovery is made.
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3.7 ELECTION NOT TO PARTICIPATE
An Employee may, subject to the approval of the Employer, elect
voluntarily not to participate in the Plan. The election not to participate must
be communicated to the Employer, in writing, at least thirty (30) days before
the beginning of a Plan Year.
ARTICLE IV
CONTRIBUTION AND ALLOCATION
4.1 FORMULA FOR DETERMINING EMPLOYER CONTRIBUTION
For each Plan Year, the Employer shall contribute to the Plan:
(a) The amount of the total salary reduction elections of all
Participants made pursuant to Section 4.2(a), which amount shall be
deemed an Employer Elective Contribution.
(b) On behalf of each Participant who is eligible to share in
matching contributions for the Plan Year, a discretionary matching
contribution equal to a uniform percentage of each such Participant's
Deferred Compensation, the exact percentage, if any, to be determined
each year by the Employer, which amount, if any, shall be deemed an
Employer Non-Elective Contribution.
(c) On behalf of each Non-Highly Compensated Participant who is
eligible to share in the Qualified Non-Elective Contribution for the
Plan Year, a discretionary Qualified Non-Elective Contribution equal
to a uniform percentage of each eligible individual's Compensation,
the exact percentage, if any, to be determined each year by the
Employer. Any Employer Qualified Non-Elective Contribution shall be
deemed an Employer Elective Contribution.
(d) A discretionary amount, which amount, if any, shall be
deemed an Employer Non-Elective Contribution.
(e) Additionally, to the extent necessary, the Employer shall
contribute to the Plan the amount necessary to provide the top heavy
minimum contribution. All contributions by the Employer shall be made
in cash.
4.2 PARTICIPANT'S SALARY REDUCTION ELECTION
(a) Each Participant may elect to defer from 1% to 10% of his
Compensation which would have been received in the Plan Year, but for
the deferral election. A deferral election (or modification of an
earlier election) may not be made with respect to Compensation which
is currently available on or before the date the
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Participant executed such election. For purposes of this Section,
Compensation shall be determined prior to any reductions made pursuant
to Code Sections 125, 402(e)(3), 402(h)(1)(B), 403(b) or 457(b), and
Employee contributions described in Code Section 414(h)(2) that are
treated as Employer contributions.
The amount by which Compensation is reduced shall be that
Participant's Deferred Compensation and be treated as an Employer
Elective Contribution and allocated to that Participant's Elective
Account.
(b) The balance in each Participant's Elective Account shall be
fully Vested at all times and shall not be subject to Forfeiture for
any reason.
(c) Notwithstanding anything in the Plan to the contrary,
amounts held in the Participant's Elective Account may not be
distributable (including any offset of loans) earlier than:
(1) a Participant's separation from service, Total and Permanent
Disability, or death;
(2) a Participant's attainment of age 59 1/2;
(3) the termination of the Plan without the establishment or
existence of a "successor plan," as that term is described in
Regulation 1.401(k)-l(d)(3);
(4) the date of disposition by the Employer to an entity that is
not an Affiliated Employer of substantially all of the assets
(within the meaning of Code Section 409(d)(2)) used in a trade or
business of such corporation if such corporation continues to
maintain this Plan after the disposition with respect to a
Participant who continues employment with the corporation
acquiring such assets;
(5) the date of disposition by the Employer or an Affiliated
Employer who maintains the Plan of its interest in a subsidiary
(within the meaning of Code Section 409(d)(3)) to an entity which
is not an Affiliated Employer but only with respect to a
Participant who continues employment with such subsidiary; or
(6) the proven financial hardship of a Participant, subject to
the limitations of Section 6.11.
(d) For each Plan Year, a Participant's Deferred Compensation
made under this Plan and all other plans, contracts or arrangements of
the Employer maintaining this Plan shall not exceed, during any
taxable year of the Participant, the
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limitation imposed by Code Section 402(g), as in effect at the
beginning of such taxable year. If such dollar limitation is exceeded,
a Participant will be deemed to have notified the Administrator of
such excess amount which shall be distributed in a manner consistent
with Section 4.2(f). The dollar limitation shall be adjusted annually
pursuant to the method provided in Code Section 415(d) in accordance
with Regulations.
(e) In the event a Participant has received a hardship
distribution from his Participant's Elective Account pursuant to
Section 6.11(b) or pursuant to Regulation 1.401(k)-l(d)(2)(iv)(B) from
any other plan maintained by the Employer, then such Participant shall
not be permitted to elect to have Deferred Compensation contributed to
the Plan on his behalf for a period of twelve (12) months following
the receipt of the distribution. Furthermore, the dollar limitation
under Code Section 402(g) shall be reduced, with respect to the
Participant's taxable year following the taxable year in which the
hardship distribution was made, by the amount of such Participant's
Deferred Compensation, if any, pursuant to this Plan (and any other
plan maintained by the Employer) for the taxable year of the hardship
distribution.
(f) If a Participant's Deferred Compensation under this Plan
together with any elective deferrals (as defined in Regulation
1.402(g)-l(b)) under another qualified cash or deferred arrangement
(as defined in Code Section 401(k)), a simplified employee pension (as
defined in Code Section 408(k)), a salary reduction arrangement
(within the meaning of Code Section 3121(a)(5)(D)), a deferred
compensation plan under Code Section 457(b), or a trust described in
Code Section 501(c)(18) cumulatively exceed the limitation imposed by
Code Section 402(g) (as adjusted annually in accordance with the
method provided in Code Section 415(d) pursuant to Regulations) for
such Participant's taxable year, the Participant may, not later than
March 1 following the close of the Participant's taxable year, notify
the Administrator in writing of such excess and request that his
Deferred Compensation under this Plan be reduced by an amount
specified by the Participant. In such event, the Administrator may
direct the Trustee to distribute such excess amount (and any Income
allocable to such excess amount) to the Participant not later than the
first April 15th following the close of the Participant's taxable
year. Any distribution of less than the entire amount of Excess
Deferred Compensation and Income shall be treated as a pro rata
distribution of Excess Deferred Compensation and Income. The amount
distributed shall not exceed the Participant's Deferred Compensation
under the Plan for the taxable year (and any Income allocable to such
excess amount). Any distribution on or before the last day of the
Participant's taxable year must satisfy each of the following
conditions:
(1) the distribution must be made after the date on which the
Plan received the Excess Deferred Compensation;
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(2) the Participant shall designate the distribution as Excess
Deferred Compensation; and
(3) the Plan must designate the distribution as a distribution
of Excess Deferred Compensation.
Matching contributions which relate to Excess Deferred
Compensation which is distributed pursuant to this Section 4.2(f)
shall be forfeited.
(g) Notwithstanding Section 4.2(f) above, a Participant's Excess
Deferred Compensation shall be reduced, but not below zero, by any
distribution of Excess Contributions pursuant to Section 4.6(a) for
the Plan Year beginning with or within the taxable year of the
Participant.
(h) At Normal Retirement Date, or such other date when the
Participant shall be entitled to receive benefits, the fair market
value of the Participant's Elective Account shall be used to provide
additional benefits to the Participant or his Beneficiary.
(i) Employer Elective Contributions made pursuant to this
Section may be segregated into a separate account for each Participant
in a federally insured savings account, certificate of deposit in a
bank or savings and loan association, money market certificate, or
other short-term debt security acceptable to the Trustee until such
time as the allocations pursuant to Section 4.4 have been made.
(j) The Employer and the Administrator shall implement the
salary reduction elections provided for herein in accordance with the
following:
(1) A Participant must make his initial salary deferral election
within a reasonable time, not to exceed thirty (30) days, after
entering the Plan pursuant to Section 3.2. If the Participant
fails to make an initial salary deferral election within such
time, then such Participant may thereafter make an election in
accordance with the rules governing modifications. The
Participant shall make such an election by entering into a
written salary reduction agreement with the Employer and filing
such agreement with the Administrator. Such election shall
initially be effective beginning with the pay period following
the acceptance of the salary reduction agreement by the
Administrator, shall not have retroactive effect and shall remain
in force until revoked.
(2) A Participant may modify a prior election during the Plan
Year and concurrently make a new election by filing a written
notice with the Administrator. However, modifications to a salary
deferral election shall
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only be permitted four times per year, during the election
periods established by the Administrator with 14 days advance
notice prior to the first day of each calendar quarter. Any
modification shall not have retroactive effect and shall remain
in force until revoked.
(3) A Participant may elect to prospectively revoke his salary
reduction agreement in its entirety at any time during the Plan
Year by providing the Administrator with 14 days prior written
notice of such revocation (or upon such notice period as may be
acceptable to the Administrator). Such revocation shall become
effective as of the beginning of the first pay period coincident
with or next following the expiration of the 14-day notice
period. Furthermore, the termination of the Participant's
employment, or the cessation of participation for any reason,
shall be deemed to revoke any salary reduction agreement then in
effect, effective immediately following the close of the pay
period within which such termination or cessation occurs. The
Participant shall be eligible to reactivate salary reduction
contributions again with 14 days advance notice prior to the
first day of any calendar quarter following a six-month
suspension.
4.3 TIME OF PAYMENT OF EMPLOYER CONTRIBUTION
The Employer shall generally pay to the Trustee its contribution to
the Plan for each Plan Year within the time prescribed by law, including
extensions of time, for the filing of the Employer federal income tax return for
the Fiscal Year.
However, Employer Elective Contributions accumulated through payroll
deductions shall be paid to the Trustee as of the earliest date on which such
contributions can reasonably be segregated from the Employer's general assets,
but in any event within ninety (90) days from the date on which such amounts
would otherwise have been payable to the Participant in cash. The provisions of
Department of Labor regulations 2510.3-102 are incorporated herein by reference.
Furthermore, any additional Employer contributions which are allocable to the
Participant's Elective Account for a Plan Year shall be paid to the Plan no
later than the twelve-month period immediately following the close of such Plan
Year.
Notwithstanding the foregoing, Employer Elective Contributions
accumulated through payroll deductions shall be paid to the Trustee as of the
earliest date on which such contributions can reasonably be segregated from the
Employer's general assets, but in any event no later than the fifteenth (15)
business day of the month immediately following the month in which the
Participant contributions are received by the Employer or in which such amounts
would otherwise have been payable to the Participant in cash.
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4.4 ALLOCATION OF CONTRIBUTION, FORFEITURES AND EARNINGS
(a) The Administrator shall establish and maintain an account in
the name of each Participant to which the Administrator shall credit
as of each Anniversary Date all amounts allocated to each such
Participant as set forth herein.
(b) The Employer shall provide the Administrator with all
information required by the Administrator to make a proper allocation
of the Employer contributions for each Plan Year. Within a reasonable
period of time after the date of receipt by the Administrator of such
information, the Administrator shall allocate such contribution as
follows:
(1) With respect to the Employer Elective Contribution made
pursuant to Section 4.l(a), to each Participant's Elective
Account in an amount equal to each such Participant's Deferred
Compensation for the year.
(2) With respect to the Employer Non-Elective Contribution made
pursuant to Section 4.1(b), to each Participant's Account in
accordance with Section 4.1(b).
Only Participants who have completed a Year of Service during the
Plan Year and are actively employed on the last day of the Plan
Year shall be eligible to share in the matching contribution for
the year.
(3) With respect to the Employer Qualified Non-Elective
Contribution made pursuant to Section 4.1(c), to each
Participant's Elective Account when used to satisfy the "Actual
Deferral Percentage" tests or Participant's Account in accordance
with Section 4.l(c).
Only Non-Highly Compensated Participants who have completed a
Year of Service during the Plan Year and are actively employed on
the last day of the Plan Year shall be eligible to share in the
Qualified Non-Elective Contribution for the year.
(4) With respect to the Employer Non-Elective Contribution made
pursuant to Section 4.l(d), to each Participant's Account in the
same proportion that each such Participant's Compensation for the
year bears to the total Compensation of all Participants for such
year.
Only Participants who have completed a Year of Service during the
Plan Year and are actively employed on the last day of the Plan
Year shall be eligible to share in the discretionary contribution
for the year.
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(c) As of each Anniversary Date any amounts which became
Forfeitures since the last Anniversary Date shall first be made
available to reinstate previously forfeited account balances of Former
Participants, if any, in accordance with Section 6.4(f)(2). The
remaining Forfeitures, if any, shall be allocated to Participants'
Accounts and used to reduce the contribution of the Employer hereunder
for the Plan Year in which such Forfeitures occur in the following
manner:
(1) Forfeitures attributable to Employer matching contributions
made pursuant to Section 4.1(b) shall be used to reduce the
Employer contribution for the Plan Year in which such Forfeitures
occur.
(2) Forfeitures attributable to Employer discretionary
contributions made pursuant to Section 4.1(d) shall be added to
any Employer discretionary contribution for the Plan Year in
which such Forfeitures occur and allocated among the
Participants' Accounts in the same manner as any Employer
discretionary contribution.
Provided, however, that in the event the allocation of
Forfeitures provided herein shall cause the "annual addition" (as
defined in Section 4.9) to any Participant's Account to exceed the
amount allowable by the Code, the excess shall be reallocated in
accordance with Section 4.10.
(d) For any Top Heavy Plan Year, Non-Key Employees not otherwise
eligible to share in the allocation of contributions and Forfeitures
as provided above, shall receive the minimum allocation provided for
in Section 4.4(h) if eligible pursuant to the provisions of Section
4.4(j).
(e) Notwithstanding the foregoing, Participants who are not
actively employed on the last day of the Plan Year due to Retirement
(Normal or Late), Total and Permanent Disability or death shall share
in the allocation of contributions and Forfeitures for that Plan Year.
(f) As of each Valuation Date, any earnings or losses (net
appreciation or net depreciation) of the Trust Fund shall be allocated
in the same proportion that each Participant's and Former
Participant's time weighted average (based on beginning year base)
nonsegregated accounts bear to the total of all Participants' and
Former Participants' time weighted average (based on beginning year
base) nonsegregated accounts as of such date. Earnings or losses with
respect to a Participant's Directed Account shall be allocated in
accordance with Section 4.12.
Participants' transfers from other qualified plans deposited
in the general Trust Fund shall share in any earnings and losses (net
appreciation or net depreciation) of the Trust Fund in the same manner
provided above. Each segregated
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account maintained on behalf of a Participant shall be credited or
charged with its separate earnings and losses.
(g) Participants' accounts shall be debited for any insurance in
force on March 1, 1998 or annuity premiums paid, if any, and credited
with any dividends received on such insurance contracts. However, no
new insurance policies shall be issued on the life of any Participant,
effective as of March 1, 1998.
(h) Minimum Allocations Required for Top Heavy Plan Years:
Notwithstanding the foregoing, for any Top Heavy Plan Year, the sum of
the Employer contributions and Forfeitures allocated to the
Participant's Combined Account of each Non-Key Employee shall be equal
to at least three percent (3%) of such Non-Key Employee's "415
Compensation" (reduced by contributions and forfeitures, if any,
allocated to each Non-Key Employee in any defined contribution plan
included with this plan in a Required Aggregation Group). However, if
(1) the sum of the Employer contributions and Forfeitures allocated to
the Participant's Combined Account of each Key Employee for such Top
Heavy Plan Year is less than three percent (3%) of each Key Employee's
"415 Compensation" and (2) this Plan is not required to be included in
an Aggregation Group to enable a defined benefit plan to meet the
requirements of Code Section 401(a)(4) or 410, the sum of the Employer
contributions and Forfeitures allocated to the Participant's Combined
Account of each Non-Key Employee shall be equal to the largest
percentage allocated to the Participant's Combined Account of any Key
Employee. However, in determining whether a Non-Key Employee has
received the required minimum allocation, such Non-Key Employee's
Deferred Compensation and matching contributions needed to satisfy the
"Actual Contribution Percentage" tests pursuant to Section 4.7(a)
shall not be taken into account.
However, no such minimum allocation shall be required in
this Plan for any Non-Key Employee who participates in another defined
contribution plan subject to Code Section 412 included with this Plan
in a Required Aggregation Group.
(i) For purposes of the minimum allocations set forth above, the
percentage allocated to the Participant's Combined Account of any Key
Employee shall be equal to the ratio of the sum of the Employer
contributions and Forfeitures allocated on behalf of such Key Employee
divided by the "415 Compensation" for such Key Employee.
(j) For any Top Heavy Plan Year, the minimum allocations set
forth above shall be allocated to the Participant's Combined Account
of all Non-Key Employees who are Participants and who are employed by
the Employer on the last day of the Plan Year, including Non-Key
Employees who have (1) failed to complete
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<PAGE>
a Year of Service; and (2) declined to make mandatory contributions
(if required) or, in the case of a cash or deferred arrangement,
elective contributions to the Plan.
(k) For the purposes of this Section, "415 Compensation" shall
be limited to $150,000. Such amount shall be adjusted for increases in
the cost of living in accordance with Code Section 401(a)(17), except
that the dollar increase in effect on January 1 of any calendar year
shall be effective for the Plan Year beginning with or within such
calendar year. For any short Plan Year the "415 Compensation" limit
shall be an amount equal to the "415 Compensation" limit for the
calendar year in which the Plan Year begins multiplied by the ratio
obtained by dividing the number of full months in the short Plan Year
by twelve (12).
(l) Notwithstanding anything herein to the contrary,
Participants who terminated employment for any reason during the Plan
Year shall share in the salary reduction contributions made by the
Employer for the year of termination without regard to the Hours of
Service credited.
(m) If a Former Participant is reemployed after five (5)
consecutive 1-Year Breaks in Service, then separate accounts shall be
maintained as follows:
(1) one account for nonforfeitable benefits attributable to pre-
break service; and
(2) one account representing his status in the Plan attributable
to post-break service.
4.5 ACTUAL DEFERRAL PERCENTAGE TESTS
(a) Maximum Annual Allocation: For each Plan Year, the annual
allocation derived from Employer Elective Contributions to a
Participant's Elective Account shall satisfy one of the following
tests:
(1) The "Actual Deferral Percentage" for the Highly Compensated
Participant group shall not be more than the "Actual Deferral
Percentage" of the Non-Highly Compensated Participant group
multiplied by 1.25, or
(2) The excess of the "Actual Deferral Percentage" for the
Highly Compensated Participant group over the "Actual Deferral
Percentage" for the Non-Highly Compensated Participant group
shall not be more than two percentage points. Additionally, the
"Actual Deferral Percentage" for the Highly Compensated
Participant group shall not exceed the "Actual Deferral
Percentage" for the Non-Highly Compensated Participant group
multiplied
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by 2. The provisions of Code Section 401(k)(3) and Regulation
1.401(k)-l(b) are incorporated herein by reference.
However, in order to prevent the multiple use of the alternative
method described in (2) above and in Code Section 401(m)(9)(A),
any Highly Compensated Participant eligible to make elective
deferrals pursuant to Section 4.2 and to make Employee
contributions or to receive matching contributions under this
Plan or under any other plan maintained by the Employer or an
Affiliated Employer shall have a combination of his actual
deferral ratio and his actual contribution ratio reduced pursuant
to Section 4.6(a) and Regulation 1.401(m)-2, the provisions of
which are incorporated herein by reference.
(b) For the purposes of this Section "Actual Deferral
Percentage" means, with respect to the Highly Compensated Participant
group and Non-Highly Compensated Participant group for a Plan Year,
the average of the ratios, calculated separately for each Participant
in such group, of the amount of Employer Elective Contributions
allocated to each Participant's Elective Account for such Plan Year,
to such Participant's "414(s) Compensation" for such Plan Year. The
actual deferral ratio for each Participant and the "Actual Deferral
Percentage" for each group shall be calculated to the nearest one-
hundredth of one percent. Employer Elective Contributions allocated to
each Non-Highly Compensated Participant's Elective Account shall be
reduced by Excess Deferred Compensation to the extent such excess
amounts are made under this Plan or any other plan maintained by the
Employer.
(c) For the purpose of determining the actual deferral ratio of
a Highly Compensated Employee who is subject to the Family Member
aggregation rules of Code Section 414(q)(6) because such Participant
is either a "five percent owner" of the Employer or one of the ten
(10) Highly Compensated Employees paid the greatest "415 Compensation"
during the year, the following shall apply:
(1) The combined actual deferral ratio for the family group
(which shall be treated as one Highly Compensated Participant)
shall be determined by aggregating Employer Elective
Contributions and "414(s) Compensation" of all eligible Family
Members (including Highly Compensated Participants). However, in
applying the $150,000 limit to "414(s) Compensation," Family
Members shall include only the affected Employee's spouse and any
lineal descendants who have not attained age 19 before the close
of the Plan Year.
(2) The Employer Elective Contributions and "414(s)
Compensation" of all Family Members shall be disregarded for
purposes of deter mining the
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"Actual Deferral Percentage" of the Non-Highly Compensated
Participant group except to the extent taken into account in
paragraph (1) above.
(3) If a Participant is required to be aggregated as a member of
more than one family group in a plan, all Participants who are
members of those family groups that include the Participant are
aggregated as one family group in accordance with paragraphs (1)
and (2) above.
(d) For the purposes of Sections 4.5(a) and 4.6, a Highly
Compensated Participant and a Non-Highly Compensated Participant shall
include any Employee eligible to make a deferral election pursuant to
Section 4.2, whether or not such deferral election was made or
suspended pursuant to Section 4.2.
(e) For the purposes of this Section and Code Sections
401(a)(4), 410(b) and 401(k), if two or more plans which include cash
or deferred arrangements are considered one plan for the purposes of
Code Section 401(a)(4) or 410(b) (other than Code Section
410(b)(2)(A)(ii)), the cash or deferred arrangements included in such
plans shall be treated as one arrangement. In addition, two or more
cash or deferred arrangements may be considered as a single
arrangement for purposes of determining whether or not such
arrangements satisfy Code Sections 401(a)(4), 410(b) and 401(k). In
such a case, the cash or deferred arrangements included in such plans
and the plans including such arrangements shall be treated as one
arrangement and as one plan for purposes of this Section and Code
Sections 401(a)(4), 410(b) and 401(k). Plans may be aggregated under
this paragraph (e) only if they have the same plan year.
Notwithstanding the above, an employee stock ownership plan
described in Code Section 4975(e)(7) or 409 may not be combined with
this Plan for purposes of determining whether the employee stock
ownership plan or this Plan satisfies this Section and Code Sections
401(a)(4), 410(b) and 401(k).
(f) For the purposes of this Section, if a Highly Compensated
Participant is a Participant under two or more cash or deferred
arrangements (other than a cash or deferred arrangement which is part
of an employee stock ownership plan as defined in Code Section
4975(e)(7) or 409) of the Employer or an Affiliated Employer, all such
cash or deferred arrangements shall be treated as one cash or deferred
arrangement for the purpose of determining the actual deferral ratio
with respect to such Highly Compensated Participant. However, if the
cash or deferred arrangements have different plan years, this
paragraph shall be applied by treating all cash or deferred
arrangements ending with or within the same calendar year as a single
arrangement.
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4.6 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS
In the event that the initial allocations of the Employer Elective
Contributions made pursuant to Section 4.4 do not satisfy one of the tests set
forth in Section 4.5(a), the Administrator shall adjust Excess Contributions
pursuant to the options set forth below:
(a) On or before the fifteenth day of the third month following
the end of each Plan Year, the Highly Compensated Participant having
the highest actual deferral ratio shall have his portion of Excess
Contributions distributed to him until one of the tests set forth in
Section 4.5(a) is satisfied, or until his actual deferral ratio equals
the actual deferral ratio of the Highly Compensated Participant having
the second highest actual deferral ratio. This process shall continue
until one of the tests set forth in Section 4.5(a) is satisfied. For
each Highly Compensated Participant, the amount of Excess
Contributions is equal to the Elective Contributions used to satisfy
the "Actual Deferral Percentage" tests on behalf of such Highly
Compensated Participant (determined prior to the application of this
paragraph) minus the amount determined by multiplying the Highly
Compensated Participant's actual deferral ratio (determined after
application of this paragraph) by his "414(s) Compensation." However,
in determining the amount of Excess Contributions to be distributed
with respect to an affected Highly Compensated Participant as
determined herein, such amount shall be reduced pursuant to Section
4.2(f) by any Excess Deferred Compensation previously distributed to
such affected Highly Compensated Participant for his taxable year
ending with or within such Plan Year.
(1) With respect to the distribution of Excess Contributions
pursuant to (a) above, such distribution:
(i) may be postponed but not later than the close of the
Plan Year following the Plan Year to which they are
allocable;
(ii) shall be adjusted for Income; and
(iii) shall be designated by the Employer as a distribution
of Excess Contributions (and Income).
(2) Any distribution of less than the entire amount of Excess
Contributions shall be treated as a pro rata distribution of
Excess Contributions and Income.
(3) The determination and correction of Excess Contributions of
a Highly Compensated Participant whose actual deferral ratio is
determined under the family aggregation rules shall be
accomplished by reducing the actual deferral ratio as required
herein, and the Excess Contributions for the family
33
<PAGE>
unit shall then be allocated among the Family Members in
proportion to the Elective Contributions of each Family Member
that were combined to determine the group actual deferral ratio.
(4) Matching contributions which relate to Excess Contributions
shall be forfeited unless the related matching contribution is
distributed as an Excess Aggregate Contribution pursuant to
Section 4.8.
(b) Within twelve (12) months after the end of the Plan Year,
the Employer may make a special Qualified Non-Elective Contribution on
behalf of Non-Highly Compensated Participants electing salary
reductions pursuant to Section 4.2 in an amount sufficient to satisfy
one of the tests set forth in Section 4.5(a). Such contribution shall
be allocated to the Participant's Elective Account of each Non-Highly
Compensated Participant electing salary reductions pursuant to Section
4.2 per capita.
(c) If during a Plan Year the projected aggregate amount of
Elective Contributions to be allocated to all Highly Compensated
Participants under this Plan would, by virtue of the tests set forth
in Section 4.5(a), cause the Plan to fail such tests, then the
Administrator may automatically reduce proportionately or in the order
provided in Section 4.6(a) each affected Highly Compensated
Participant's deferral election made pursuant to Section 4.2 by an
amount necessary to satisfy one of the tests set forth in Section
4.5(a).
4.7 ACTUAL CONTRIBUTION PERCENTAGE TESTS
(a) The "Actual Contribution Percentage" for the Highly
Compensated Participant group shall not exceed the greater of:
(1) 125 percent of such percentage for the Non-Highly
Compensated Participant group; or
(2) the lesser of 200 percent of such percentage for the Non-
Highly Compensated Participant group, or such percentage for the
Non-Highly Compensated Participant group plus 2 percentage
points. However, to prevent the multiple use of the alternative
method described in this paragraph and Code Section 401(m)(9)(A),
any Highly Compensated Participant eligible to make elective
deferrals pursuant to Section 4.2 or any other cash or deferred
arrangement maintained by the Employer or an Affiliated Employer
and to make Employee contributions or to receive matching
contributions under this Plan or under any plan maintained by the
Employer or an Affiliated Employer shall have a combination of
his actual deferral ratio and his actual contribution ratio
reduced pursuant to Regulation 1.401(m)-2
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<PAGE>
and Section 4.8(a). The provisions of Code Section 401(m) and
Regulations 1.401(m)-l(b) and 1.401(m)-2 are incorporated herein
by reference.
(b) For the purposes of this Section and Section 4.8, "Actual
Contribution Percentage" for a Plan Year means, with respect to the
Highly Compensated Participant group and Non-Highly Compensated
Participant group, the average of the ratios (calculated separately
for each Participant in each group) of:
(1) the sum of Employer matching contributions made pursuant to
Section 4.1(b) on behalf of each such Participant for such Plan
Year; to
(2) the Participant's "414(s) Compensation" for such Plan Year.
(c) For purposes of determining the "Actual Contribution
Percentage" and the amount of Excess Aggregate Contributions pursuant
to Section 4.8(d), only Employer matching contributions contributed to
the Plan prior to the end of the succeeding Plan Year shall be
considered. In addition, the Administrator may elect to take into
account, with respect to Employees eligible to have Employer matching
contributions pursuant to Section 4.1(b) allocated to their accounts,
elective deferrals (as defined in Regulation 1.402(g)-1(b)) and
qualified non-elective contributions (as defined in Code Section
401(m)(4)(C)) contributed to any plan maintained by the Employer. Such
elective deferrals and qualified non-elective contributions shall be
treated as Employer matching contributions subject to Regulation
1.401(m)-1(b)(5) which is incorporated herein by reference. However,
the Plan Year must be the same as the plan year of the plan to which
the elective deferrals and the qualified non-elective contributions
are made.
(d) For the purpose of determining the actual contribution ratio
of a Highly Compensated Employee who is subject to the Family Member
aggregation rules of Code Section 414(q)(6) because such Employee is
either a "five percent owner" of the Employer or one of the ten (10)
Highly Compensated Employees paid the greatest "415 Compensation"
during the year, the following shall apply:
(1) The combined actual contribution ratio for the family group
(which shall be treated as one Highly Compensated Participant)
shall be determined by aggregating Employer matching
contributions made pursuant to Section 4.1(b) and "414(s)
Compensation" of all eligible Family Members (including Highly
Compensated Participants). However, in applying the $150,000
limit to "414(s) Compensation", Family Members shall include only
the affected Employee's spouse and any lineal descendants who
have not attained age 19 before the close of the Plan Year.
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<PAGE>
(2) The Employer matching contributions made pursuant to Section
4.1(b) and "414(s) Compensation" of all Family Members shall be
disregarded for purposes of determining the "Actual Contribution
Percentage" of the Non-Highly Compensated Participant group
except to the extent taken into account in paragraph (1) above.
(3) If a Participant is required to be aggregated as a member of
more than one family group in a plan, all Participants who are
members of those family groups that include the Participant are
aggregated as one family group in accordance with paragraphs (1)
and (2) above.
(e) For purposes of this Section and Code Sections 401(a)(4),
410(b) and 401(m), if two or more plans of the Employer to which
matching contributions, Employee contributions, or both, are made are
treated as one plan for purposes of Code Sections 401(a)(4) or 410(b)
(other than the average benefits test under Code Section
410(b)(2)(A)(ii)), such plans shall be treated as one plan. In
addition, two or more plans of the Employer to which matching
contributions, Employee contributions, or both, are made may be
considered as a single plan for purposes of determining whether or not
such plans satisfy Code Sections 401(a)(4), 410(b) and 401(m). In such
a case, the aggregated plans must satisfy this Section and Code
Sections 401(a)(4), 410(b) and 401(m) as though such aggregated plans
were a single plan. Plans may be aggregated under this paragraph (e)
only if they have the same plan year.
Notwithstanding the above, an employee stock ownership plan
described in Code Section 4975(e)(7) or 409 may not be aggregated with
this Plan for purposes of determining whether the employee stock
ownership plan or this Plan satisfies this Section and Code Sections
401(a)(4), 410(b) and 401(m).
(f) If a Highly Compensated Participant is a Participant under
two or more plans (other than an employee stock ownership plan as
defined in Code Section 4975(e)(7) or 409) which are maintained by the
Employer or an Affiliated Employer to which matching contributions,
Employee contributions, or both, are made, all such contributions on
behalf of such Highly Compensated Participant shall be aggregated for
purposes of determining such Highly Compensated Participant's actual
contribution ratio. However, if the plans have different plan years,
this paragraph shall be applied by treating all plans ending with or
within the same calendar year as a single plan.
(g) For purposes of Sections 4.7(a) and 4.8, a Highly
Compensated Participant and Non-Highly Compensated Participant shall
include any Employee eligible to have Employer matching contributions
pursuant to Section 4.1(b) (whether
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<PAGE>
or not a deferral election was made or suspended pursuant to Section
4.2(e)) allocated to his account for the Plan Year.
4.8 ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TESTS
(a) In the event that the "Actual Contribution Percentage" for
the Highly Compensated Participant group exceeds the "Actual
Contribution Percentage" for the Non-Highly Compensated Participant
group pursuant to Section 4.7(a), the Administrator (on or before the
fifteenth day of the third month following the end of the Plan Year,
but in no event later than the close of the following Plan Year) shall
direct the Trustee to distribute to the Highly Compensated Participant
having the highest actual contribution ratio, his Vested portion of
Excess Aggregate Contributions (and Income allocable to such
contributions) and, if forfeitable, forfeit such non-Vested Excess
Aggregate Contributions attributable to Employer matching
contributions (and Income allocable to such forfeitures) until either
one of the tests set forth in Section 4.7(a) is satisfied, or until
his actual contribution ratio equals the actual contribution ratio of
the Highly Compensated Participant having the second highest actual
contribution ratio. This process shall continue until one of the tests
set forth in Section 4.7(a) is satisfied.
If the correction of Excess Aggregate Contributions
attributable to Employer matching contributions is not in proportion
to the Vested and non-Vested portion of such contributions, then the
Vested portion of the Participant's Account attributable to Employer
matching contributions after the correction shall be subject to
Section 6.5(f).
(b) Any distribution and/or forfeiture of less than the entire
amount of Excess Aggregate Contributions (and Income) shall be treated
as a pro rata distribution and/or forfeiture of Excess Aggregate
Contributions and Income. Distribution of Excess Aggregate
Contributions shall be designated by the Employer as a distribution of
Excess Aggregate Contributions (and Income).
Forfeitures of Excess Aggregate Contributions shall be treated in
accordance with Section 4.4.
(c) Excess Aggregate Contributions, including forfeited matching
contributions, shall be treated as Employer contributions for purposes
of Code Sections 404 and 415 even if distributed from the Plan.
Forfeited matching contributions that are reallocated to
Participants' Accounts for the Plan Year in which the forfeiture
occurs shall be treated as an "annual addition" pursuant to Section
4.9(b) for the Participants to whose Accounts they are reallocated and
for the Participants from whose Accounts they are forfeited.
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(d) For each Highly Compensated Participant, the amount of
Excess Aggregate Contributions is equal to the Employer matching
contributions made pursuant to Section 4.1(b) and any qualified non-
elective contributions or elective deferrals taken into account
pursuant to Section 4.7(c) on behalf of the Highly Compensated
Participant (determined prior to the application of this paragraph)
minus the amount determined by multiplying the Highly Compensated
Participant's actual contribution ratio (determined after application
of this paragraph) by his "414(s) Compensation." The actual
contribution ratio must be rounded to the nearest one-hundredth of one
percent. In no case shall the amount of Excess Aggregate Contribution
with respect to any Highly Compensated Participant exceed the amount
of Employer matching contributions made pursuant to Section 4.1(b) and
any qualified non-elective contributions or elective deferrals taken
into account pursuant to Section 4.7(c) on behalf of such Highly
Compensated Participant for such Plan Year.
(e) The determination of the amount of Excess Aggregate
Contributions with respect to any Plan Year shall be made after first
determining the Excess Contributions, if any, to be treated as
voluntary Employee contributions due to recharacterization for the
plan year of any other qualified cash or deferred arrangement (as
defined in Code Section 401(k)) maintained by the Employer that ends
with or within the Plan Year.
(f) If the determination and correction of Excess Aggregate
Contributions of a Highly Compensated Participant whose actual
contribution ratio is determined under the family aggregation rules,
then the actual contribution ratio shall be reduced and the Excess
Aggregate Contributions for the family unit shall be allocated among
the Family Members in proportion to the sum of Employer matching
contributions made pursuant to Section 4.1(b) and any qualified non-
elective contributions or elective deferrals taken into account
pursuant to Section 4.7(c) of each Family Member that were combined to
determine the group actual contribution ratio.
(g) If during a Plan Year the projected aggregate amount of
Employer matching contributions to be allocated to all Highly
Compensated Participants under this Plan would, by virtue of the tests
set forth in Section 4.7(a), cause the Plan to fail such tests, then
the Administrator may automatically reduce proportionately or in the
order provided in Section 4.8(a) each affected Highly Compensated
Participant's projected share of such contributions by an amount
necessary to satisfy one of the tests set forth in Section 4.7(a).
(h) Notwithstanding the above, within twelve (12) months after
the end of the Plan Year, the Employer may make a special Qualified
Non-Elective Contribution on behalf of Non-Highly Compensated
Participants in an amount sufficient to satisfy one of the tests set
forth in Section 4.7(a). Such contribution
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<PAGE>
shall be allocated to the Participant's Account of each Non-Highly
Compensated Participant per capita. A separate accounting of any
special Qualified Non-Elective Contribution shall be maintained in the
Participant's Account.
4.9 MAXIMUM ANNUAL ADDITIONS
(a) Notwithstanding the foregoing, the maximum "annual
additions" credited to a Participant's accounts for any "limitation
year" shall equal the lesser of: (1) $30,000 adjusted annually as
provided in Code Section 415(d) pursuant to the Regulations, or (2)
twenty-five percent (25%) of the Participant's "415 Compensation" for
such "limitation year." For any short "limitation year", the dollar
limitation in (1) above shall be reduced by a fraction, the numerator
of which is the number of full months in the short "limitation year"
and the denominator of which is twelve (12).
(b) For purposes of applying the limitations of Code Section
415, "annual additions" means the sum credited to a Participant's
accounts for any "limitation year" of (1) Employer contributions, (2)
Employee contributions, (3) forfeitures, (4) 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 annuity plan
maintained by the Employer and (5) 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
Code Section 419A(d)(3)) under a welfare benefit plan (as defined in
Code Section 419(e)) maintained by the Employer. Except, however, the
"415 Compensation" percentage limitation referred to in paragraph
(a)(2) above shall not apply to: (1) any contribution for medical
benefits (within the meaning of Code Section 419A(f)(2)) after
separation from service which is otherwise treated as an "annual
addition," or (2) any amount otherwise treated as an "annual addition"
under Code Section 415(l)(1).
(c) For purposes of applying the limitations of Code Section
415, the transfer of funds from one qualified plan to another is not
an "annual addition."
In addition, the following are not Employee contributions for the
purposes of Section 4.9(b)(2): (1) rollover contributions (as defined
in Code Sections 402(e)(6), 403(a)(4), 403(b)(8) and 408(d)(3)); (2)
repayments of loans made to a Participant from the Plan; (3)
repayments of distributions received by an Employee pursuant to Code
Section 411(a)(7)(B) (cash-outs); (4) repayments of distributions
received by an Employee pursuant to Code Section 411(a)(3)(D)
(mandatory contributions); and (5) Employee contributions to a
simplified employee pension excludable from gross income under Code
Section 408(k)(6).
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<PAGE>
(d) For purposes of applying the limitations of Code Section
415, the "limitation year" shall be the Plan Year.
(e) For the purpose of this Section, all qualified defined
contribution plans (whether terminated or not) ever maintained by the
Employer shall be treated as one defined contribution plan.
(f) For the purpose of this Section, if the Employer is a member
of a controlled group of corporations, trades or businesses under
common control (as defined by Code Section 1563(a) or Code Section
414(b) and (c) as modified by Code Section 415(h)), is a member of an
affiliated service group (as defined by Code Section 414(m)), or is a
member of a group of entities required to be aggregated pursuant to
Regulations under Code Section 414(o), all Employees of such Employers
shall be considered to be employed by a single Employer.
(g) For the purpose of this Section, if this Plan is a Code
Section 413(c) plan, each Employer who maintains this Plan will be
considered to be a separate Employer.
(h)(1) If a Participant participates in more than one defined
contribution plan maintained by the Employer which have different
Anniversary Dates, the maximum "annual additions" under this Plan
shall equal the maximum "annual additions" for the "limitation year"
minus any "annual additions" previously credited to such Participant's
accounts during the "limitation year."
(2) If a Participant participates in both a defined contribution
plan subject to Code Section 412 and defined contribution plan
not subject to Code Section 412 maintained by the Employer which
have the same Anniversary Date, "annual additions" will be
credited to the Participant's accounts under the defined
contribution plan subject to Code Section 412 prior to crediting
"annual additions" to the Participant's accounts under the
defined contribution plan not subject to Code Section 412.
(3) If a Participant participates in more than one defined
contribution plan not subject to Code Section 412 maintained by
the Employer which have the same Anniversary Date, the maximum
"annual additions" under this Plan shall equal the product of (A)
the maximum "annual additions" for the "limitation year" minus
any "annual additions" previously credited under subparagraphs
(1) or (2) above, multiplied by (B) a fraction (i) the numerator
of which is the "annual additions" which would be credited to
such Participant's accounts under this Plan without regard to the
limitations of Code Section 415 and (ii) the denominator of which
is such "annual additions" for all plans described in this
subparagraph.
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(i) Notwithstanding anything contained in this Section to the
contrary, the limitations, adjustments and other requirements
prescribed in this Section shall at all times comply with the
provisions of Code Section 415 and the Regulations thereunder, the
terms of which are specifically incorporated herein by reference.
4.10 ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS
(a) If, as a result of the allocation of Forfeitures, a
reasonable error in estimating a Participant's Compensation, a
reasonable error in determining the amount of elective deferrals
(within the meaning of Code Section 402(g)(3)) that may be made with
respect to any Participant under the limits of Section 4.9 or other
facts and circumstances to which Regulation 1.415-6(b)(6) shall be
applicable, the "annual additions" under this Plan would cause the
maximum "annual additions" to be exceeded for any Participant, the
Administrator shall (1) distribute any elective deferrals (within the
meaning of Code Section 402(g)(3)) or return any Employee
contributions (whether voluntary or mandatory), and for the
distribution of gains attributable to those elective deferrals and
Employee contributions, to the extent that the distribution or return
would reduce the "excess amount" in the Participant's accounts (2)
hold any "excess amount" remaining after the return of any elective
deferrals or voluntary Employee contributions in a "Section 415
suspense account" (3) use the "Section 415 suspense account" in the
next "limitation year" (and succeeding "limitation years" if
necessary) to reduce Employer contributions for that Participant if
that Participant is covered by the Plan as of the end of the
"limitation year," or if the Participant is not so covered, allocate
and reallocate the "Section 415 suspense account" in the next
"limitation year" (and succeeding "limitation years" if necessary) to
all Participants in the Plan before any Employer or Employee
contributions which would constitute "annual additions" are made to
the Plan for such "limitation year" (4) reduce Employer contributions
to the Plan for such "limitation year" by the amount of the "Section
415 suspense account" allocated and reallocated during such
"limitation year."
(b) For purposes of this Article, "excess amount" for any
Participant for a "limitation year" shall mean the excess, if any, of
(1) the "annual additions" which would be credited to his account
under the terms of the Plan without regard to the limitations of Code
Section 415 over (2) the maximum "annual additions" determined
pursuant to Section 4.9.
(c) For purposes of this Section, "Section 415 suspense account"
shall mean an unallocated account equal to the sum of "excess amounts"
for all Participants in the Plan during the "limitation year." The
"Section 415 suspense account" shall not share in any earnings or
losses of the Trust Fund.
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4.11 TRANSFERS FROM QUALIFIED PLANS
(a) With the consent of the Administrator, amounts may be
transferred from other qualified plans by Eligible Employees, provided
that the trust from which such funds are transferred permits the
transfer to be made and the transfer will not jeopardize the tax
exempt status of the Plan or Trust or create adverse tax consequences
for the Employer. The amounts transferred shall be set up in a
separate account herein referred to as a "Participant's Rollover
Account." Such account shall be fully Vested at all times and shall
not be subject to Forfeiture for any reason.
(b) Amounts in a Participant's Rollover Account shall be held by
the Trustee pursuant to the provisions of this Plan and may not be
withdrawn by, or distributed to the Participant, in whole or in part,
except as provided in Section 6.10 and paragraphs (c) and (d) of this
Section.
(c) Except as permitted by Regulations (including Regulation
1.411(d)-4), amounts attributable to elective contributions (as
defined in Regulation 1.401(k)-1(g)(3)), including amounts treated as
elective contributions, which are transferred from another qualified
plan in a plan-to-plan transfer shall be subject to the distribution
limitations provided for in Regulation 1.401(k)-1(d).
(d) At Normal Retirement Date or attainment of age fifty-nine
and one-half, or such other date when the Participant or his
Beneficiary shall be entitled to receive benefits, the fair market
value of the Participant's Rollover Account shall be used to provide
additional benefits to the Participant or his Beneficiary. Any
distributions of amounts held in a Participant's Rollover Account
shall be made in a manner which is consistent with and satisfies the
provisions of Section 6.5, including, but not limited to, all notice
and consent requirements of Code Section 411(a)(11) and the
Regulations thereunder. Furthermore, such amounts shall be considered
as part of a Participant's benefit in determining whether an
involuntary cash-out of benefits without Participant consent may be
made.
(e) The Administrator may direct that employee transfers made
after a valuation date be segregated into a separate account for each
Participant in a federally insured savings account, certificate of
deposit in a bank or savings and loan association, money market
certificate, or other short term debt security acceptable to the
Trustee until such time as the allocations pursuant to this Plan have
been made, at which time they may remain segregated or be invested as
part of the general Trust Fund, to be determined by the Administrator.
(f) For purposes of this Section, the term "qualified plan"
shall mean any tax qualified plan under Code Section 401(a). The term
"amounts transferred from other qualified plans" shall mean: (i)
amounts transferred to this Plan directly from
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another qualified plan; (ii) distributions from another qualified plan
which are eligible rollover distributions and which are either
transferred by the Employee to this Plan within sixty (60) days
following his receipt thereof or are transferred pursuant to a direct
rollover; (iii) amounts transferred to this Plan from a conduit
individual retirement account provided that the conduit individual
retirement account has no assets other than assets which (A) were
previously distributed to the Employee by another qualified plan as a
lump-sum distribution (B) were eligible for tax-free rollover to a
qualified plan and (C) were deposited in such conduit individual
retirement account within sixty (60) days of receipt thereof and other
than earnings on said assets; and (iv) amounts distributed to the
Employee from a conduit individual retirement account meeting the
requirements of clause (iii) above, and transferred by the Employee to
this Plan within sixty (60) days of his receipt thereof from such
conduit individual retirement account.
(g) Prior to accepting any transfers to which this Section
applies, the Administrator may require the Employee to establish that
the amounts to be transferred to this Plan meet the requirements of
this Section and may also require the Employee to provide an opinion
of counsel satisfactory to the Employer that the amounts to be
transferred meet the requirements of this Section.
(h) This Plan shall not accept any direct or indirect transfers
(as that term is defined and interpreted under Code Section 401(a)(11)
and the Regulations thereunder) from a defined benefit plan, money
purchase plan (including a target benefit plan), stock bonus or profit
sharing plan which would otherwise have provided for a life annuity
form of payment to the Participant.
(i) Notwithstanding anything herein to the contrary, a transfer
directly to this Plan from another qualified plan (or a transaction
having the effect of such a transfer) shall only be permitted if it
will not result in the elimination or reduction of any "Section
411(d)(6) protected benefit" as described in Section 7.1.
4.12 DIRECTED INVESTMENT ACCOUNT
(a) Participants may, subject to a procedure established by the
Administrator (the Participant Direction Procedures) and applied in a
uniform nondiscriminatory manner, direct the Trustee to invest all of
their accounts in specific assets, specific funds or other investments
permitted under the Plan and the Participant Direction Procedures.
That portion of the interest of any Participant so directing will
thereupon be considered a Participant's Directed Account.
(b) As of each Valuation Date, all Participant Directed Accounts
shall be charged or credited with the net earnings, gains, losses and
expenses as well as any
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appreciation or depreciation in the market value using publicly listed
fair market values when available or appropriate.
(1) To the extent that the assets in a Participant's Directed
Account are accounted for as pooled assets or investments, the
allocation of earnings, gains and losses of each Participant's
Directed Account shall be based upon the total amount of funds so
invested, in a manner proportionate to the Participant's share of
such pooled investment.
(2) To the extent that the assets in the Participant's Directed
Account are accounted for as segregated assets, the allocation of
earnings, gains and losses from such assets shall be made on a
separate and distinct basis.
(c) The Participant Direction Procedures shall provide an
explanation of the circumstances under which Participants and their
Beneficiaries may give investment instructions, including, but need
not be limited to, the following:
(1) the conveyance of instructions by the Participants and their
Beneficiaries to invest Participant Directed Accounts in Directed
Investments;
(2) the name, address and phone number of the Fiduciary (and, if
applicable, the person or persons designated by the Fiduciary to
act on its behalf) responsible for providing information to the
Participant or a Beneficiary upon request relating to the
investments in Directed Investments;
(3) applicable restrictions on transfers to and from any
Designated Investment Alternative;
(4) any restrictions on the exercise of voting, tender and
similar rights related to a Directed Investment by the
Participants or their Beneficiaries;
(5) a description of any transaction fees and expenses which
affect the balances in Participant Directed Accounts in
connection with the purchase or sale of Directed Investments; and
(6) general procedures for the dissemination of investment and
other information relating to the Designated Investment
Alternatives as deemed necessary or appropriate, including but
not limited to a description of the following:
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(i) the investment vehicles available under the Plan,
including specific information regarding any Designated
Investment Alternative;
(ii) any designated Investment Managers; and
(iii) a description of the additional information which may
be obtained upon request from the Fiduciary designated to
provide such information.
(d) Any information regarding investments available under the
Plan, to the extent not required to be described in the Participant
Direction Procedures, may be provided to the Participant in one or
more written documents which are separate from the Participant
Direction Procedures and are not thereby incorporated by reference
into this Plan.
(e) The Administrator may, at its discretion, include in or
exclude by amendment or other action from the Participant Direction
Procedures such instructions, guidelines or policies as it deems
necessary or appropriate to ensure proper administration of the Plan,
and may interpret the same accordingly.
ARTICLE V
VALUATIONS
5.1 VALUATION OF THE TRUST FUND
The Administrator shall direct the Trustee, as of each Valuation Date,
to determine the net worth of the assets comprising the Trust Fund as it exists
on the Valuation Date. In determining such net worth, the Trustee shall value
the assets comprising the Trust Fund at their fair market value as of the
Valuation Date and shall deduct all expenses for which the Trustee has not yet
obtained reimbursement from the Employer or the Trust Fund. The Trustee may
update the value of any shares held in the Participant Directed Account by
reference to the number of shares held by that Participant, priced at the market
value as of the Valuation Date.
5.2 METHOD OF VALUATION
In determining the fair market value of securities held in the Trust
Fund which are listed on a registered stock exchange, the Administrator shall
direct the Trustee to value the same at the prices they were last traded on such
exchange preceding the close of business on the Valuation Date. If such
securities were not traded on the Valuation Date, or if the exchange on which
they are traded was not open for business on the Valuation Date, then the
securities shall be valued at the prices at which they were last traded prior to
the Valuation Date. Any unlisted security held in the Trust Fund shall be valued
at its bid price next preceding the close of business on the Valuation
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Date, which bid price shall be obtained from a registered broker or an
investment banker. In determining the fair market value of assets other than
securities for which trading or bid prices can be obtained, the Trustee may
appraise such assets itself, or in its discretion, employ one or more appraisers
for that purpose and rely on the values established by such appraiser or
appraisers.
ARTICLE VI
DETERMINATION AND DISTRIBUTION OF BENEFITS
6.1 DETERMINATION OF BENEFITS UPON RETIREMENT
Every Participant may terminate his employment with the Employer and
retire for the purposes hereof on his Normal Retirement Date. However, a
Participant may postpone the termination of his employment with the Employer to
a later date, in which event the participation of such Participant in the Plan,
including the right to receive allocations pursuant to Section 4.4, shall
continue until his Late Retirement Date. Upon a Participant's Retirement Date or
attainment of his Normal Retirement Date without termination of employment with
the Employer, or as soon thereafter as is practicable, the Trustee shall
distribute, at the election of the Participant, all amounts credited to such
Participant's Combined Account in accordance with Section 6.5.
6.2 DETERMINATION OF BENEFITS UPON DEATH
(a) Upon the death of a Participant before his Retirement Date or
other termination of his employment, all amounts credited to such
Participant's Combined Account shall become fully Vested. The
Administrator shall direct the Trustee, in accordance with the
provisions of Sections 6.6 and 6.7, to distribute the value of the
deceased Participant's accounts to the Participant's Beneficiary.
(b) Upon the death of a Former Participant, the Administrator
shall direct the Trustee, in accordance with the provisions of
Sections 6.6 and 6.7, to distribute any remaining Vested amounts
credited to the accounts of a deceased Former Participant to such
Former Participant's Beneficiary.
(c) Any security interest held by the Plan by reason of an
outstanding loan to the Participant or Former Participant shall be
taken into account in determining the amount of the death benefit.
(d) The Administrator may require such proper proof of death and
such evidence of the right of any person to receive payment of the
value of the account of a deceased Participant or Former Participant
as the Administrator may deem desirable. The Administrator's
determination of death and of the right of any person to receive
payment shall be conclusive.
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(e) The Beneficiary of the death benefit payable pursuant to this
Section shall be the Participant's spouse. Except, however, the
Participant may designate a Beneficiary other than his spouse if:
(1) the spouse has waived the right to be the Participant's
Beneficiary, or
(2) the Participant is legally separated or has been abandoned
(within the meaning of local law) and the Participant has a
court order to such effect (and there is no "qualified
domestic relations order" as defined in Code Section 414(p)
which provides otherwise), or
(3) the Participant has no spouse, or
(4) the spouse cannot be located.
In such event, the designation of a Beneficiary shall be
made on a form satisfactory to the Administrator. A Participant may at
any time revoke his designation of a Beneficiary or change his
Beneficiary by filing written notice of such revocation or change with
the Administrator. However, the Participant's spouse must again
consent in writing to any change in Beneficiary unless the original
consent acknowledged that the spouse had the right to limit consent
only to a specific Beneficiary and that the spouse voluntarily elected
to relinquish such right. In the event no valid designation of
Beneficiary exists at the time of the Participant's death, the death
benefit shall be payable to his estate.
(f) Any consent by the Participant's spouse to waive any rights
to the death benefit must be in writing, must acknowledge the effect
of such waiver, and be witnessed by a Plan representative or a notary
public. Further, the spouse's consent must be irrevocable and must
acknowledge the specific nonspouse Beneficiary.
6.3 DETERMINATION OF BENEFITS IN EVENT OF DISABILITY
In the event of a Participant's Total and Permanent Disability prior
to his Retirement Date or other termination of his employment, all amounts
credited to such Participant's Combined Account shall become fully Vested. In
the event of a Participant's Total and Permanent Disability, the Trustee, in
accordance with the provisions of Sections 6.5 and 6.7, shall distribute to such
Participant all amounts credited to such Participant's Combined Account as
though he had retired.
6.4 DETERMINATION OF BENEFITS UPON TERMINATION
(a) If a Participant's employment with the Employer is terminated
for any reason other than death, Total and Permanent Disability or
retirement, such
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Participant shall be entitled to such benefits as are provided
hereinafter pursuant to this Section 6.4.
In the event that the amount of the Vested portion of the
Terminated Participant's Combined Account equals or exceeds the fair
market value of any insurance Contracts, the Trustee, when so directed
by the Administrator and agreed to by the Terminated Participant,
shall assign, transfer, and set over to such Terminated Participant
all Contracts on his life in such form or with such endorsements so
that the settlement options and forms of payment are consistent with
the provisions of Section 6.5. In the event that the Terminated
Participant's Vested portion does not at least equal the fair market
value of the Contracts, if any, the Terminated Participant may pay
over to the Trustee the sum needed to make the distribution equal to
the value of the Contracts being assigned or transferred, or the
Trustee, pursuant to the Participant's election, may borrow the cash
value of the Contracts from the insurer so that the value of the
Contracts is equal to the Vested portion of the Terminated
Participant's Account and then assign the Contracts to the Terminated
Participant.
Distribution of the funds due to a Terminated Participant
shall be made on the occurrence of an event which would result in the
distribution had the Terminated Participant remained in the employ of
the Employer (upon the Participant's death, Total and Permanent
Disability or Normal Retirement). However, at the election of the
Participant, the Administrator shall direct the Trustee to cause the
entire Vested portion of the Terminated Participant's Elective Account
to be payable to such Terminated Participant on or after the daily
valuation date coinciding with or next following termination of
employment. Any distribution under this paragraph shall be made in a
manner which is consistent with and satisfies the provisions of
Section 6.5, including, but not limited to, all notice and consent
requirements of Code Section 411(a)(11) and the Regulations
thereunder.
For purposes of this Section 6.4, if the value of a
Terminated Participant's Vested benefit is zero, the Terminated
Participant shall be deemed to have received a distribution of such
Vested benefit.
(b) The Vested portion of any Participant's Account shall be a
percentage of the total amount credited to his Participant's Account
determined on the basis of the Participant's number of Years of
Service according to the following schedule:
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Vesting Schedule
Years of Service Percentage
Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 100%
(c) Notwithstanding the vesting schedule above, the Vested
percentage of a Participant's Account shall not be less than the
Vested percentage attained as of the later of the effective date or
adoption date of this amendment and restatement.
(d) Notwithstanding the vesting schedule above, upon the complete
discontinuance of the Employer contributions to the Plan or upon any
full or partial termination of the Plan, all amounts credited to the
account of any affected Participant shall become 100% Vested and shall
not thereafter be subject to Forfeiture.
(e) The computation of a Participant's nonforfeitable percentage
of his interest in the Plan shall not be reduced as the result of any
direct or indirect amendment to this Plan. For this purpose, the Plan
shall be treated as having been amended if the Plan provides for an
automatic change in vesting due to a change in top heavy status. In
the event that the Plan is amended to change or modify any vesting
schedule, a Participant with at least three (3) Years of Service as of
the expiration date of the election period may elect to have his
nonforfeitable percentage computed under the Plan without regard to
such amendment. If a Participant fails to make such election, then
such Participant shall be subject to the new vesting schedule. The
Participant's election period shall commence on the adoption date of
the amendment and shall end 60 days after the latest of:
(1) the adoption date of the amendment,
(2) the effective date of the amendment, or
(3) the date the Participant receives written notice of the
amendment from the Employer or Administrator.
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(f)(1) If any Former Participant shall be reemployed by the
Employer before a 1-Year Break in Service occurs, he shall continue to
participate in the Plan in the same manner as if such termination had
not occurred.
(2) If any Former Participant shall be reemployed by the Employer
before five (5) consecutive 1-Year Breaks in Service, and such
Former Participant had received, or was deemed to have received,
a distribution of his entire Vested interest prior to his
reemployment, his forfeited account shall be reinstated only if
he repays the full amount distributed to him before the earlier
of five (5) years after the first date on which the Participant
is subsequently reemployed by the Employer or the close of the
first period of five (5) consecutive 1-Year Breaks in Service
commencing after the distribution, or in the event of a deemed
distribution, upon the reemployment of such Former Participant.
In the event the Former Participant does repay the full amount
distributed to him, or in the event of a deemed distribution, the
undistributed portion of the Participant's Account must be
restored in full, unadjusted by any gains or losses occurring
subsequent to the Valuation Date coinciding with or preceding his
termination. The source for such reinstatement shall first be any
Forfeitures occurring during the year. If such source is
insufficient, then the Employer shall contribute an amount which
is sufficient to restore any such forfeited Accounts provided,
however, that if a discretionary contribution is made for such
year pursuant to Section 4. l(d), such contribution shall first
be applied to restore any such Accounts and the remainder shall
be allocated in accordance with Section 4.4.
(3) If any Former Participant is reemployed after a 1-Year Break
in Service has occurred, Years of Service shall include Years of
Service prior to his 1-Year Break in Service subject to the
following rules:
(i) If a Former Participant has a 1-Year Break in Service,
his pre-break and post-break service shall be used for
computing Years of Service for eligibility and for vesting
purposes only after he has been employed for one (1) Year of
Service following the date of his reemployment with the
Employer;
(ii) Any Former Participant who under the Plan does not have
a nonforfeitable right to any interest in the Plan resulting
from Employer contributions shall lose credits otherwise
allowable under (i) above if his consecutive 1-Year Breaks
in Service equal or exceed the greater of (A) five (5) or
(B) the aggregate number of his pre-break Years of Service;
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(iii) After five (5) consecutive 1-Year Breaks in Service, a
Former Participant's Vested Account balance attributable to
pre-break service shall not be increased as a result of
post-break service;
(iv) If a Former Participant is reemployed by the Employer,
he shall participate in the Plan immediately on his date of
reemployment;
(v) If a Former Participant (a 1-Year Break in Service
previously occurred, but employment had not terminated) is
credited with an Hour of Service after the first eligibility
computation period in which he incurs a 1-Year Break in
Service, he shall participate in the Plan immediately.
6.5 DISTRIBUTION OF BENEFITS
(a) The Administrator, pursuant to the election of the
Participant, shall direct the Trustee to distribute to a Participant
or his Beneficiary any amount to which he is entitled under the Plan
in one lump-sum payment in cash or in property.
(b) Any distribution to a Participant who has a benefit which
exceeds, or has ever exceeded, $5,000 at the time of any prior
distribution shall require such Participant's consent pursuant to this
Section 6.5(b) if such distribution occurs prior to the later of his
Normal Retirement Age or age 62. With regard to this required consent:
(1) The Participant must be informed of his right to defer
receipt of the distribution. If a Participant fails to consent,
it shall be deemed an election to defer the distribution of any
benefit. However, any election to defer the receipt of benefits
shall not apply with respect to distributions which are required
under Section 6.5(c).
(2) Notice of the rights specified under this paragraph shall be
provided no less than 30 days and no more than 90 days before the
date the distribution commences.
(3) Written consent of the Participant to the distribution must
not be made before the Participant receives the notice and must
not be made more than 90 days before the date the distribution
commences.
(4) No consent shall be valid if a significant detriment is
imposed under the Plan on any Participant who does not consent to
the distribution.
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Any such distribution may commence less than 30 days after
the notice required under Regulation 1.411(a)-11(c) is given, provided
that: (1) 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 (2) the Participant, after receiving the notice,
affirmatively elects a distribution.
(c) Notwithstanding any provision in the Plan to the contrary,
the distribution of a Participant's benefits shall be made in
accordance with the following requirements and shall otherwise comply
with Code Section 401(a)(9) and the Regulations thereunder (including
Regulation 1.401(a)(9)-2), the provisions of which are incorporated
herein by reference:
(1) A Participant's benefits shall be distributed or must begin
to be distributed to him not later than April 1st of the calendar
year following the later of (i) the calendar year in which the
Participant attains age 70 1/2 or (ii) the calendar year in which
the Participant retires, provided, however, that this clause (ii)
shall not apply in the case of a Participant who is a "five (5)
percent owner" at any time during the five (5) Plan Year period
ending in the calendar year in which he attains age 70 1/2 or, in
the case of a Participant who becomes a "five (5) percent owner"
during any subsequent Plan Year, clause (ii) shall no longer
apply and the required beginning date shall be the April 1st of
the calendar year following the calendar year in which such
subsequent Plan Year ends. Such distributions shall be equal to
or greater than any required distribution. Notwithstanding the
foregoing, clause (ii) above shall not apply to any Participant
unless the Participant had attained age 70 1/2 before January 1,
1988 and was not a "five (5) percent owner" at any time during
the Plan Year ending with or within the calendar year in which
the Participant attained age 66 1/2 or any subsequent Plan Year.
(2) Distributions to a Participant and his Beneficiaries shall
only be made in accordance with the incidental death benefit
requirements of Code Section 401(a)(9)(G) and the Regulations
thereunder.
(d) For purposes of this Section, the life expectancy of a
Participant and a Participant's spouse may, at the election of the
Participant or the Participant's spouse, be redetermined in accordance
with Regulations. The election, once made, shall be irrevocable. If no
election is made by the time distributions must commence, then the
life expectancy of the Participant and the Participant's spouse shall
not be subject to recalculation. Life expectancy and joint and last
survivor expectancy shall be computed using the return multiples in
Tables V and VI of Regulation 1.72-9.
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(e) All annuity Contracts under this Plan shall be non-
transferable when distributed. Furthermore, the terms of any annuity
Contract purchased and distributed to a Participant or spouse shall
comply with all of the requirements of the Plan.
(f) If a distribution is made at a time when a Participant is not
fully Vested in his Participant's Account and the Participant may
increase the Vested percentage in such account:
(1) a separate account shall be established for the Participant's
interest in the Plan as of the time of the distribution; and
(2) at any relevant time, the Participant's Vested portion of the
separate account shall be equal to an amount ("X") determined by
the formula:
X equals P(AB plus (R x D)) - (R x D)
For purposes of applying the formula: P is the Vested percentage
at the relevant time, AB is the account balance at the relevant
time, D is the amount of distribution, and R is the ratio of the
account balance at the relevant time to the account balance after
distribution.
6.6 DISTRIBUTION OF BENEFITS UPON DEATH
(a) The death benefit payable pursuant to Section 6.2 shall be
paid to the Participant's Beneficiary in one lump-sum payment in cash
or in property subject to the rules of Section 6.6(b).
(b) Notwithstanding any provision in the Plan to the contrary,
distributions upon the death of a Participant shall be made in
accordance with the following requirements and shall otherwise comply
with Code Section 401(a)(9) and the Regulations thereunder. If it is
determined pursuant to Regulations that the distribution of a
Participant's interest has begun and the Participant dies before his
entire interest has been distributed to him, the remaining portion of
such interest shall be distributed at least as rapidly as under the
method of distribution selected pursuant to Section 6.5 as of his date
of death. If a Participant dies before he has begun to receive any
distributions of his interest under the Plan or before distributions
are deemed to have begun pursuant to Regulations, then his death
benefit shall be distributed to his Beneficiaries by December 31st of
the calendar year in which the fifth anniversary of his date of death
occurs.
However, the 5-year distribution requirement of the preceding
paragraph shall not apply to any portion of the deceased Participant's
interest which is payable to or
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for the benefit of a designated Beneficiary. In such event, such
portion may, at the election of the Participant (or the Participant's
designated Beneficiary), be distributed over a period not extending
beyond the life expectancy of such designated Beneficiary provided
such distribution begins not later than December 31st of the calendar
year immediately following the calendar year in which the Participant
died. However, in the event the Participant's spouse (determined as of
the date of the Participant's death) is his Beneficiary, the
requirement that distributions commence within one year of a
Participant's death shall not apply. In lieu thereof, distributions
must commence on or before the later of: (1) December 31st of the
calendar year immediately following the calendar year in which the
Participant died; or (2) December 31st of the calendar year in which
the Participant would have attained age 70 1/2. If the surviving
spouse dies before distributions to such spouse begin, then the 5-year
distribution requirement of this Section shall apply as if the spouse
was the Participant.
6.7 TIME OF SEGREGATION OR DISTRIBUTION
Except as limited by Sections 6.5 and 6.6, whenever the Trustee is to
make a distribution the distribution may be made as soon as is practicable.
However, unless a Former Participant elects in writing to defer the receipt of
benefits (such election may not result in a death benefit that is more than
incidental), the payment of benefits shall occur not later than the 60th day
after the close of the Plan Year in which the latest of the following events
occurs: (a) the date on which the Participant attains the earlier of age 65 or
the Normal Retirement Age specified herein; (b) the 10th anniversary of the year
in which the Participant commenced participation in the Plan; or (c) the date
the Participant terminates his service with the Employer.
6.8 DISTRIBUTION FOR MINOR BENEFICIARY
In the event a distribution is to be made to a minor, then the
Administrator may direct that such distribution be paid to the legal guardian,
or if none, to a parent of such Beneficiary or a responsible adult with whom the
Beneficiary maintains his residence, or to the custodian for such Beneficiary
under the Uniform Gift to Minors Act or Gift to Minors Act, if such is permitted
by the laws of the state in which said Beneficiary resides. Such a payment to
the legal guardian, custodian or parent of a minor Beneficiary shall fully
discharge the Trustee, Employer, and Plan from further liability on account
thereof.
6.9 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN
In the event that all, or any portion, of the distribution payable to
a Participant or his Beneficiary hereunder shall, at the later of the
Participant's attainment of age 62 or his Normal Retirement Age, remain unpaid
solely by reason of the inability of the Administrator, after sending a
registered letter, return receipt requested, to the last known address, and
after further diligent effort, to ascertain the whereabouts of such Participant
or his Beneficiary, the amount so distributable shall
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be treated as a Forfeiture pursuant to the Plan. In the event a Participant or
Beneficiary is located subsequent to his benefit being reallocated, such benefit
shall be restored unadjusted for earnings or losses.
6.10 PRE-RETIREMENT DISTRIBUTION
At such time as a Participant shall have attained the age of fifty-
nine and one-half (59 1/2) years, the Administrator, at the election of the
Participant, shall direct the Trustee to distribute all or a portion of the
Vested amount then credited to the accounts attributable to salary reduction
contributions and Participant Rollovers maintained on behalf of the Participant.
In the event that the Administrator makes such a distribution, the Participant
shall continue to be eligible to participate in the Plan on the same basis as
any other Employee. Any distribution made pursuant to this Section shall be made
in a manner consistent with Section 6.5, including, but not limited to, all
notice and consent requirements of Code Section 41l(a)(11) and the Regulations
thereunder.
Notwithstanding the above, pre-retirement distributions from a
Participant's Elective Account shall not be permitted prior to the Participant
attaining age 59 1/2 except as otherwise permitted under the terms of the Plan.
6.11 ADVANCE DISTRIBUTION FOR HARDSHIP
(a) The Administrator, at the election of the Participant, shall
direct the Trustee to distribute to any Participant in any one Plan
Year up to the lesser of 100% of his Participant's Elective Account
and Participant's Rollover Account valued as of the last Valuation
Date or the amount necessary to satisfy the immediate and heavy
financial need of the Participant. Any distribution made pursuant to
this Section shall be deemed to be made as of the first day of the
Plan Year or, if later, the Valuation Date immediately preceding the
date of distribution, and the Participant's Elective Account and
Participant's Rollover Account shall be reduced accordingly.
Withdrawal under this Section shall be authorized only if the
distribution is on account of:
(1) Expenses for medical care described in Code Section 213(d)
previously incurred by the Participant, his spouse, or any of his
dependents (as defined in Code Section 152) or necessary for
these persons to obtain medical care;
(2) The costs directly related to the purchase of a principal
residence for the Participant (excluding mortgage payments);
(3) Payment of tuition, related educational fees, and room and
board expenses for the next twelve (12) months of post-secondary
education for the Participant, his spouse, children, or
dependents; or
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(4) Payments necessary to prevent the eviction of the Participant
from his principal residence or foreclosure on the mortgage of
the Participant's principal residence.
(b) No distribution shall be made pursuant to this Section unless
the Administrator, based upon the Participant's representation and
such other facts as are known to the Administrator, determines that
all of the following conditions are satisfied:
(1) The distribution is not in excess of the amount of the
immediate and heavy financial need of the Participant. The amount
of the immediate and heavy financial need may include any amounts
necessary to pay any federal, state, or local income taxes or
penalties reasonably anticipated to result from the distribution;
(2) The Participant has obtained all distributions, other than
hardship distributions, and all nontaxable (at the time of the
loan) loans currently available under all plans maintained by the
Employer;
(3) The Plan, and all other plans maintained by the Employer,
provide that the Participant's elective deferrals and voluntary
Employee contributions will be suspended for at least twelve (12)
months after receipt of the hardship distribution or, the
Participant, pursuant to a legally enforceable agreement, will
suspend his elective deferrals and voluntary Employee
contributions to the Plan and all other plans maintained by the
Employer for at least twelve (12) months after receipt of the
hardship distribution; and
(4) The Plan, and all other plans maintained by the Employer,
provide that the Participant may not make elective deferrals 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 next taxable year less
the amount of such Participant's elective deferrals for the
taxable year of the hardship distribution.
(c) Notwithstanding the above, distributions from the
Participant's Elective Account pursuant to this Section shall be
limited, as of the date of distribution, to the Participant's Elective
Account as of the end of the last Plan Year ending before July 1,
1989, plus the total Participant's Deferred Compensation after such
date, reduced by the amount of any previous distributions pursuant to
this Section and Section 6.10.
(d) Any distribution made pursuant to this Section shall be made
in a manner which is consistent with and satisfies the provisions of
Section 6.5,
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including, but not limited to, all notice and consent requirements of
Code Section 411(a)(11) and the Regulations thereunder.
6.12 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION
All rights and benefits, including elections, provided to a
Participant in this Plan shall be subject to the rights afforded to any
"alternate payee" under a "qualified domestic relations order." Furthermore, a
distribution to an "alternate payee" shall be permitted if such distribution is
authorized by a "qualified domestic relations order," even if the affected
Participant has not separated from service and has not reached the "earliest
retirement age" under the Plan. For the purposes of this Section, "alternate
payee," "qualified domestic relations order" and "earliest retirement age" shall
have the meaning set forth under Code Section 414(p).
6.13 DIRECT ROLLOVER
(a) 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 that is equal to at least $500 paid directly to
an eligible retirement plan specified by the distributee in a direct
rollover.
(b) For purposes of this Section the following definitions shall
apply:
(1) An eligible rollover distribution is any distribution of all
or any portion of the balance to the credit of the distributee,
except that an eligible rollover distribution does not include:
any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified period
of ten years or more; any distribution to the extent such
distribution is required under Code Section 401(a)(9); the
portion of any other distribution that is not includible in gross
income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities); and
any other distribution that is reasonably expected to total less
than $200 during a year.
(2) 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.
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(3) A distributee includes an Employee or former Employee. In
addition, the Employee's or former Employee's surviving spouse
and the Employee's or former Employee's spouse or former spouse
who is the alternate payee under a qualified domestic relations
order, as defined in Code Section 414(p), are distributees with
regard to the interest of the spouse or former spouse.
(4) A direct rollover is a payment by the Plan to the eligible
retirement plan specified by the distributee.
ARTICLE VII
AMENDMENT, TERMINATION, MERGERS AND LOANS
7.1 AMENDMENT
(a) The Employer shall have the right at any time to amend the
Plan, subject to the limitations of this Section. However, any
amendment which affects the rights, duties or responsibilities of the
Trustee and Administrator, other than an amendment to remove the
Trustee or Administrator, may only be made with the Trustee's and
Administrator's written consent. Any such amendment shall become
effective as provided therein upon its execution. The Trustee shall
not be required to execute any such amendment unless the Trust
provisions contained herein are a part of the Plan and the amendment
affects the duties of the Trustee hereunder.
(b) No amendment to the Plan shall be effective if it authorizes
or permits any part of the Trust Fund (other than such part as is
required to pay taxes and administration expenses) to be used for or
diverted to any purpose other than for the exclusive benefit of the
Participants or their Beneficiaries or estates; or causes any
reduction in the amount credited to the account of any Participant; or
causes or permits any portion of the Trust Fund to revert to or become
property of the Employer.
(c) Except as permitted by Regulations, no Plan amendment or
transaction having the effect of a Plan amendment (such as a merger,
plan transfer or similar transaction) shall be effective to the extent
it eliminates or reduces any "Section 411(d)(6) protected benefit" or
adds or modifies conditions relating to "Section 411(d)(6) protected
benefits" the result of which is a further restriction on such benefit
unless such protected benefits are preserved with respect to benefits
accrued as of the later of the adoption date or effective date of the
amendment. "Section 411(d)(6) protected benefits" are benefits
described in Code Section 411(d)(6)(A), early retirement benefits and
retirement-type subsidies, and optional forms of benefit.
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7.2 TERMINATION
(a) The Employer shall have the right at any time to terminate
the Plan by delivering to the Trustee and Administrator written notice
of such termination. Upon any full or partial termination, all amounts
credited to the affected Participants' Combined Accounts shall become
100% Vested as provided in Section 6.4 and shall not thereafter be
subject to forfeiture, and all unallocated amounts shall be allocated
to the accounts of all Participants in accordance with the provisions
hereof.
(b) Upon the full termination of the Plan, the Employer shall
direct the distribution of the assets of the Trust Fund to
Participants in a manner which is consistent with and satisfies the
provisions of Section 6.5. Distributions to a Participant shall be
made in cash or in property or through the purchase of irrevocable
nontransferable deferred commitments from an insurer. Except as
permitted by Regulations, the termination of the Plan shall not result
in the reduction of "Section 411(d)(6) protected benefits" in
accordance with Section 7.1(c).
7.3 MERGER OR CONSOLIDATION
This Plan may be merged or consolidated with, or its assets and/or
liabilities may be transferred to any other plan and trust only if the benefits
which would be received by a Participant of this Plan, in the event of a
termination of the plan immediately after such transfer, merger or
consolidation, are at least equal to the benefits the Participant would have
received if the Plan had terminated immediately before the transfer, merger or
consolidation, and such transfer, merger or consolidation does not otherwise
result in the elimination or reduction of any "Section 411(d)(6) protected
benefits" in accordance with Section 7.l(c).
7.4 LOANS TO PARTICIPANTS
(a) The Trustee may, in the Trustee's discretion, make loans to
Participants and Beneficiaries under the following circumstances: (1)
loans shall be made available to all Participants and Beneficiaries on
a reasonably equivalent basis; (2) loans shall not be made available
to Highly Compensated Employees in an amount greater than the amount
made available to other Participants and Beneficiaries; (3) loans
shall bear a reasonable rate of interest; (4) loans shall be
adequately secured; and (5) shall provide for repayment over a
reasonable period of time.
(b) Loans made pursuant to this Section (when added to the
outstanding balance of all other loans made by the Plan to the
Participant) shall be limited, to the lesser of:
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(1) $50,000 reduced by the excess (if any) of the highest
outstanding balance of loans from the Plan to the Participant
during the one year period ending on the day before the date on
which such loan is made, over the outstanding balance of loans
from the Plan to the Participant on the date on which such loan
was made, or
(2) one-half (1/2) of the present value of the non-forfeitable
accrued benefit of the Participant under the Plan.
For purposes of this limit, all plans of the Employer shall
be considered one plan.
(c) Loans shall provide for level amortization with payments to
be made not less frequently than quarterly over a period not to exceed
five (5) years. However, loans used to acquire any 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 shall
provide for periodic repayment over a reasonable period of time that
may exceed five (5) years. Furthermore, all loans become immediately
due and payable in full upon the termination of service of a
Participant with the Employer.
(d) Any loans granted or renewed on or after the last day of the
first Plan Year beginning after December 31, 1988 shall be made
pursuant to a Participant loan program. Such loan program shall be
established in writing and must include, but need not be limited to,
the following:
(1) the identity of the person or positions authorized to
administer the Participant loan program;
(2) a procedure for applying for loans;
(3) the basis on which loans will be approved or denied;
(4) limitations, if any, on the types and amounts of loans
offered;
(5) the procedure under the program for determining a reasonable
rate of interest;
(6) the types of collateral which may secure a Participant loan;
and
(7) the events constituting default and the steps that will be
taken to preserve Plan assets.
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Such Participant loan program shall be contained in a
separate written document which, when properly executed, is hereby
incorporated by reference and made a part of the Plan. Furthermore,
such Participant loan program may be modified or amended in writing
from time to time without the necessity of amending this Section.
ARTICLE VIII
TOP HEAVY
8.1 TOP HEAVY PLAN REQUIREMENTS
For any Top Heavy Plan Year, the Plan shall provide the special
vesting requirements of Code Section 416(b) pursuant to Section 6.4 of the Plan
and the special minimum allocation requirements of Code Section 416(c) pursuant
to Section 4.4 of the Plan.
8.2 DETERMINATION OF TOP HEAVY STATUS
(a) This Plan shall be a Top Heavy Plan for any Plan Year in
which, as of the Determination Date, (1) the Present Value of Accrued
Benefits of Key Employees and (2) the sum of the Aggregate Accounts of
Key Employees under this Plan and all plans of an Aggregation Group,
exceeds sixty percent (60%) of the Present Value of Accrued Benefits
and the Aggregate Accounts of all Key and Non-Key Employees under this
Plan and all plans of an Aggregation Group.
If any Participant is a Non-Key Employee for any Plan Year,
but such Participant was a Key Employee for any prior Plan Year, such
Participant's Present Value of Accrued Benefit and/or Aggregate
Account balance shall not be taken into account for purposes of
determining whether this Plan is a Top Heavy or Super Top Heavy Plan
(or whether any Aggregation Group which includes this Plan is a Top
Heavy Group). In addition, if a Participant or Former Participant has
not performed any services for any Employer maintaining the Plan at
any time during the five year period ending on the Determination Date,
any accrued benefit for such Participant or Former Participant shall
not be taken into account for the purposes of determining whether this
Plan is a Top Heavy or Super Top Heavy Plan.
(b) This Plan shall be a Super Top Heavy Plan for any Plan Year
in which, as of the Determination Date, (1) the Present Value of
Accrued Benefits of Key Employees and (2) the sum of the Aggregate
Accounts of Key Employees under this Plan and all plans of an
Aggregation Group, exceeds ninety percent (90%) of the Present Value
of Accrued Benefits and the Aggregate Accounts of all Key and Non-Key
Employees under this Plan and all plans of an Aggregation Group.
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(c) Aggregate Account: A Participant's Aggregate Account as of
the Determination Date is the sum of:
(1) his Participant's Combined Account balance as of the most
recent valuation occurring within a twelve (12) month period
ending on the Determination Date;
(2) an adjustment for any contributions due as of the
Determination Date. Such adjustment shall be the amount of any
contributions actually made after the Valuation Date but due on
or before the Determination Date, except for the first Plan Year
when such adjustment shall also reflect the amount of any
contributions made after the Determination Date that are
allocated as of a date in that first Plan Year.
(3) any Plan distributions made within the Plan Year that
includes the Determination Date or within the four (4) preceding
Plan Years. However, in the case of distributions made after the
Valuation Date and prior to the Determination Date, such
distributions are not included as distributions for top heavy
purposes to the extent that such distributions are already
included in the Participant's Aggregate Account balance as of the
Valuation Date. Notwithstanding anything herein to the contrary,
all distributions, including distributions under a terminated
plan which if it had not been terminated would have been required
to be included in an Aggregation Group, will be counted. Further,
distributions from the Plan (including the cash value of life
insurance policies) of a Participant's account balance because of
death shall be treated as a distribution for the purposes of this
paragraph.
(4) any Employee contributions, whether voluntary or mandatory.
However, amounts attributable to tax deductible qualified
voluntary employee contributions shall not be considered to be a
part of the Participant's Aggregate Account balance.
(5) with respect to unrelated rollovers and plan-to-plan
transfers (ones which are both initiated by the Employee and made
from a plan maintained by one employer to a plan maintained by
another employer), if this Plan provides the rollovers or plan-
to-plan transfers, it shall always consider such rollovers or
plan-to-plan transfers as a distribution for the purposes of this
Section. If this Plan is the plan accepting such rollovers or
plan-to-plan transfers, it shall not consider such rollovers or
plan-to-plan transfers as part of the Participant's Aggregate
Account balance.
(6) with respect to related rollovers and plan-to-plan transfers
(ones either not initiated by the Employee or made to a plan
maintained by the same
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employer), if this Plan provides the rollover or plan-to-plan
transfer, it shall not be counted as a distribution for purposes
of this Section. If this Plan is the plan accepting such rollover
or plan-to-plan transfer, it shall consider such rollover or
plan-to-plan transfer as part of the Participant's Aggregate
Account balance, irrespective of the date on which such rollover
or plan-to-plan transfer is accepted.
(7) For the purposes of determining whether two employers are to
be treated as the same employer in (5) and (6) above, all
employers aggregated under Code Section 414(b), (c), (m) and (o)
are treated as the same employer.
(d) "Aggregation Group" means either a Required Aggregation
Group or a Permissive Aggregation Group as hereinafter determined.
(1) Required Aggregation Group: In determining a Required
Aggregation Group hereunder, each plan of the Employer in which a
Key Employee is a participant in the Plan Year containing the
Determination Date or any of the four preceding Plan Years, and
each other plan of the Employer which enables any plan in which a
Key Employee participates to meet the requirements of Code
Sections 401(a)(4) or 410, will be required to be aggregated.
Such group shall be known as a Required Aggregation Group.
In the case of a Required Aggregation Group, each plan in the
group will be considered a Top Heavy Plan if the Required
Aggregation Group is a Top Heavy Group. No plan in the Required
Aggregation Group will be considered a Top Heavy Plan if the
Required Aggregation Group is not a Top Heavy Group.
(2) Permissive Aggregation Group: The Employer may also include
any other plan not required to be included in the Required
Aggregation Group, provided the resulting group, taken as a
whole, would continue to satisfy the provisions of Code Sections
401(a)(4) and 410. Such group shall be known as a Permissive
Aggregation Group.
In the case of a Permissive Aggregation Group, only a plan that
is part of the Required Aggregation Group will be considered a
Top Heavy Plan if the Permissive Aggregation Group is a Top Heavy
Group. No plan in the Permissive Aggregation Group will be
considered a Top Heavy Plan if the Permissive Aggregation Group
is not a Top Heavy Group.
(3) Only those plans of the Employer in which the Determination
Dates fall within the same calendar year shall be aggregated in
order to determine whether such plans are Top Heavy Plans.
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(4) An Aggregation Group shall include any terminated plan of
the Employer if it was maintained within the last five (5) years
ending on the Determination Date.
(e) "Determination Date" means (a) the last day of the preceding
Plan Year, or (b) in the case of the first Plan Year, the last day of
such Plan Year.
(f) Present Value of Accrued Benefit: In the case of a defined
benefit plan, the Present Value of Accrued Benefit for a Participant
other than a Key Employee, shall be as determined using the single
accrual method used for all plans of the Employer and Affiliated
Employers, or if no such single method exists, using a method which
results in benefits accruing not more rapidly than the slowest accrual
rate permitted under Code Section 411(b)(1)(C). The determination of
the Present Value of Accrued Benefit shall be determined as of the
most recent Valuation Date that falls within or ends with the 12-month
period ending on the Determination Date except as provided in Code
Section 416 and the Regulations thereunder for the first and second
plan years of a defined benefit plan.
(g) "Top Heavy Group" means an Aggregation Group in which, as of
the Determination Date, the sum of:
(1) the Present Value of Accrued Benefits of Key Employees under
all defined benefit plans included in the group, and
(2) the Aggregate Accounts of Key Employees under all defined
contribution plans included in the group, exceeds sixty percent
(60%) of a similar sum determined for all Participants.
ARTICLE IX
MISCELLANEOUS
9.1 PARTICIPANT'S RIGHTS
This Plan shall not be deemed to constitute a contract between the
Employer and any Participant or to be a consideration or an inducement for the
employment of any Participant or Employee. Nothing contained in this Plan shall
be deemed to give any Participant or Employee the right to be retained in the
service of the Employer or to interfere with the right of the Employer to
discharge any Participant or Employee at any time regardless of the effect which
such discharge shall have upon him as a Participant of this Plan.
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9.2 ALIENATION
(a) Subject to the exceptions provided below, no benefit which
shall be payable out of the Trust Fund to any person (including a
Participant or his Beneficiary) shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, or charge, and any attempt to anticipate, alienate, sell,
transfer, assign, pledge, encumber, or charge the same shall be void;
and no such benefit shall in any manner be liable for, or subject to,
the debts, contracts, liabilities, engagements, or torts of any such
person, nor shall it be subject to attachment or legal process for or
against such person, and the same shall not be recognized by the
Trustee, except to such extent as may be required by law.
(b) This provision shall not apply to the extent a Participant
or Beneficiary is indebted to the Plan, as a result of a loan from the
Plan. At the time a distribution is to be made to or for a
Participant's or Beneficiary's benefit, such proportion of the amount
distributed as shall equal such loan indebtedness shall be paid by the
Trustee to the Trustee or the Administrator, at the direction of the
Administrator, to apply against or discharge such loan indebtedness.
Prior to making a payment, however, the Participant or Beneficiary
must be given written notice by the Administrator that such loan
indebtedness is to be so paid in whole or part from his Participant's
Combined Account. If the Participant or Beneficiary does not agree
that the loan indebtedness is a valid claim against his Vested
Participant's Combined Account, he shall be entitled to a review of
the validity of the claim in accordance with procedures provided in
Sections 2.7 and 2.8.
(c) This provision shall not apply to a "qualified domestic
relations order" defined in Code Section 414(p), and those other
domestic relations orders permitted to be so treated by the
Administrator under the provisions of the Retirement Equity Act of
1984. The Administrator shall establish a written procedure to
determine the qualified status of domestic relations orders and to
administer distributions under such qualified orders. Further, to the
extent provided under a "qualified domestic relations order," a former
spouse of a Participant shall be treated as the spouse or surviving
spouse for all purposes under the Plan.
9.3 CONSTRUCTION OF PLAN
This Plan shall be construed and enforced according to the Act and the
laws of the State of New York, other than its laws respecting choice of law, to
the extent not preempted by the Act.
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9.4 GENDER AND NUMBER
Wherever any words are used herein in the masculine, feminine or
neuter gender, they shall be construed as though they were also used in another
gender in all cases where they would so apply, and whenever any words are used
herein in the singular or plural form, they shall be construed as though they
were also used in the other form in all cases where they would so apply.
9.5 LEGAL ACTION
In the event any claim, suit, or proceeding is brought regarding the
Trust and/or Plan established hereunder to which the Trustee, the Employer or
the Administrator may be a party, and such claim, suit, or proceeding is
resolved in favor of the Trustee, the Employer or the Administrator, they shall
be entitled to be reimbursed from the Trust Fund for any and all costs,
attorney's fees, and other expenses pertaining thereto incurred by them for
which they shall have become liable.
9.6 PROHIBITION AGAINST DIVERSION OF FUNDS
(a) Except as provided below and otherwise specifically
permitted by law, it shall be impossible by operation of the Plan or
of the Trust, by termination of either, by power of revocation or
amendment, by the happening of any contingency, by collateral
arrangement or by any other means, for any part of the corpus or
income of any trust fund maintained pursuant to the Plan or any funds
contributed thereto to be used for, or diverted to, purposes other
than the exclusive benefit of Participants, Retired Participants, or
their Beneficiaries.
(b) In the event the Employer shall make an excessive
contribution under a mistake of fact pursuant to Act Section
403(c)(2)(A), the Employer may demand repayment of such excessive
contribution at any time within one (1) year following the time of
payment and the Trustees shall return such amount to the Employer
within the one (1) year period. Earnings of the Plan attributable to
the excess contributions may not be returned to the Employer but any
losses attributable thereto must reduce the amount so returned.
9.7 BONDING
Every Fiduciary, except a bank or an insurance company, unless
exempted by the Act and regulations thereunder, shall be bonded in an amount not
less than 10% of the amount of the funds such Fiduciary handles; provided,
however, that the minimum bond shall be $1,000 and the maximum bond, $500,000.
The amount of funds handled shall be determined at the beginning of each Plan
Year by the amount of funds handled by such person, group, or class to be
covered and their predecessors, if any, during the preceding Plan Year, or if
there is no preceding Plan Year, then by the amount of the funds to be handled
during the then current year. The bond shall provide
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protection to the Plan against any loss by reason of acts of fraud or dishonesty
by the Fiduciary alone or in connivance with others. The surety shall be a
corporate surety company (as such term is used in Act Section 412(a)(2)), and
the bond shall be in a form approved by the Secretary of Labor. Notwithstanding
anything in the Plan to the contrary, the cost of such bonds shall be an expense
of and may, at the election of the Administrator, be paid from the Trust Fund or
by the Employer.
9.8 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE
Neither the Employer, the Administrator, nor the Trustee, nor their
successors shall be responsible for the validity of any Contract issued
hereunder or for the failure on the part of the insurer to make payments
provided by any such Contract, or for the action of any person which may delay
payment or render a Contract null and void or unenforceable in whole or in part.
9.9 INSURER'S PROTECTIVE CLAUSE
Any insurer who shall issue Contracts hereunder shall not have any
responsibility for the validity of this Plan or for the tax or legal aspects of
this Plan. The insurer shall be protected and held harmless in acting in
accordance with any written direction of the Trustee, and shall have no duty to
see to the application of any funds paid to the Trustee, nor be required to
question any actions directed by the Trustee. Regardless of any provision of
this Plan, the insurer shall not be required to take or permit any action or
allow any benefit or privilege contrary to the terms of any Contract which it
issues hereunder, or the rules of the insurer.
9.10 RECEIPT AND RELEASE FOR PAYMENTS
Any payment to any Participant, his legal representative, Beneficiary,
or to any guardian or committee appointed for such Participant or Beneficiary in
accordance with the provisions of the Plan, shall, to the extent thereof, be in
full satisfaction of all claims hereunder against the Trustee and the Employer,
either of whom may require such Participant, legal representative, Beneficiary,
guardian or committee, as a condition precedent to such payment, to execute a
receipt and release thereof in such form as shall be determined by the Trustee
or Employer.
9.11 ACTION BY THE EMPLOYER
Whenever the Employer under the terms of the Plan is permitted or
required to do or perform any act or matter or thing, it shall be done and
performed by a person duly authorized by its legally constituted authority.
9.12 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY
The "named Fiduciaries" of this Plan are (1) the Employer, (2) the
Administrator and (3) the Trustee. The named Fiduciaries shall have only those
specific powers, duties, responsibilities, and obligations as are specifically
given them under the Plan or as accepted by or
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assigned to them pursuant to any procedure provided under the Plan, including
but not limited to any agreement allocating or delegating their
responsibilities, the terms of which are incorporated herein by reference. In
general, unless otherwise indicated herein or pursuant to such agreements, the
Employer shall have the duties specified in Article II hereof, as the same may
be allocated or delegated thereunder, including but not limited to the
responsibility for making the contributions provided for under Section 4.1; and
shall have the authority to appoint and remove the Trustee and the
Administrator; to formulate the Plan's "funding policy and method"; and to amend
or terminate, in whole or in part, the Plan. The Administrator shall have the
responsibility for the administration of the Plan, including but not limited to
the items specified in Article II of the Plan, as the same may be allocated or
delegated thereunder. The Administrator shall act as the named Fiduciary
responsible for communicating with the Participant according to the Participant
Direction Procedures. The Trustee shall have the responsibility of management
and control of the assets held under the Trust, except to the extent directed
pursuant to Article II or with respect to those assets, the management of which
has been assigned to an Investment Manager, who shall be solely responsible for
the management of the assets assigned to it, all as specifically provided in the
Plan and any agreement with the Trustee. Each named Fiduciary warrants that any
directions given, information furnished, or action taken by it shall be in
accordance with the provisions of the Plan, authorizing or providing for such
direction, information or action. Furthermore, each named Fiduciary may rely
upon any such direction, information or action of another named Fiduciary as
being proper under the Plan, and is not required under the Plan to inquire into
the propriety of any such direction, information or action. It is intended under
the Plan that each named Fiduciary shall be responsible for the proper exercise
of its own powers, duties, responsibilities and obligations under the Plan as
specified or allocated herein. No named Fiduciary shall guarantee the Trust Fund
in any manner against investment loss or depreciation is asset value. Any person
or group may serve in more than one Fiduciary capacity. In the furtherance of
their responsibilities hereunder, the "named Fiduciaries" shall be empowered to
interpret the Plan and Trust and to resolve ambiguities, inconsistencies and
omissions, which findings shall be binding, final and conclusive.
9.13 HEADINGS
The headings and subheadings of this Plan have been inserted for convenience of
reference and are to be ignored in any construction of the provisions hereof.
9.14 APPROVAL BY INTERNAL REVENUE SERVICE
(A) Notwithstanding anything herein to the contrary, contributions to this Plan
are conditioned upon the initial qualification of the Plan under Code Section
401. If the Plan receives an adverse determination with respect to its initial
qualification, then the Plan may return such contributions to the Employer
within one year after such determination, provided 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 the Treasury may prescribe.
(B) Notwithstanding any provisions to the contrary, except Section 3.5, 3.6, and
4.1(c), any contribution by the Employer to the Trust Fund is conditioned upon
the deductibility of the contribution by the Employer under the Code and, to the
extent any such deduction is disallowed, the Employer may, within one (1) year
following the disallowance of the deduction, demand repayment of such disallowed
contribution and the Trustee shall return such contribution within one (1) year
following the disallowance. Earnings of the Plan attributable to the excess
contribution may not be returned to the Employer, but any losses attributable
thereto must reduce the amount so returned.
9.15 UNIFORMITY
All provisions of this Plan shall be interpreted and applied in a
uniform, nondiscriminatory manner. In the event of any conflict between the
terms of this Plan and any Contract purchased hereunder, the Plan provisions
shall control.
ARTICLE X
PARTICIPATING EMPLOYERS
10.1 ADOPTION BY OTHER EMPLOYERS
Notwithstanding anything herein to the contrary, with the consent of
the Employer and Trustee, any other corporation or entity, whether an affiliate
or subsidiary or not, may adopt this Plan and all of the provisions hereof, and
participate herein and be known as a Participating Employer, by a properly
executed document evidencing said intent and will of such Participating
Employer.
10.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS
(a) Each such Participating Employer shall be required to use
the same Trustee as provided in this Plan.
(b) The Trustee may, but shall not be required to, commingle,
hold and invest as one Trust Fund all contributions made by
Participating Employers, as well as all increments thereof. However,
the assets of the Plan shall, on an ongoing basis, be available to pay
benefits to all Participants and Beneficiaries under the Plan without
regard to the Employer or Participating Employer who contributed such
assets.
(c) The transfer of any Participant from or to an Employer
participating in this Plan, whether he be an Employee of the Employer
or a Participating Employer, shall not affect such Participant's
rights under the Plan, and all amounts credited to such Participant's
Combined Account as well as his accumulated service
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time with the transferor or predecessor, and his length of
participation in the Plan, shall continue to his credit.
(d) All rights and values forfeited by termination of employment
shall inure only to the benefit of the Participants of the Employer or
Participating Employer by which the forfeiting Participant was
employed, except if the Forfeiture is for an Employee whose Employer
is an Affiliated Employer, then said Forfeiture shall inure to the
benefit of the Participants of those Employers who are Affiliated
Employers. Should an Employee of one ("First") Employer be transferred
to an associated ("Second") Employer which is an Affiliated Employer,
such transfer shall not cause his account balance (generated while an
Employee of "First" Employer) in any manner, or by any amount to be
forfeited. Such Employee's Participant Combined Account balance for
all purposes of the Plan, including length of service, shall be
considered as though he had always been employed by the "Second"
Employer and as such had received contributions, forfeitures, earnings
or losses, and appreciation or depreciation in value of assets
totaling the amount so transferred.
(e) Any expenses of the Trust which are to be paid by the
Employer or borne by the Trust Fund shall be paid by each
Participating Employer in the same proportion that the total amount
standing to the credit of all Participants employed by such Employer
bears to the total standing to the credit of all Participants.
10.3 DESIGNATION OF AGENT
Each Participating Employer shall be deemed to be a party to this
Plan; provided, however, that with respect to all of its relations with the
Trustee and Administrator for the purpose of this Plan, each Participating
Employer shall be deemed to have designated irrevocably the Employer as its
agent. Unless the context of the Plan clearly indicates the contrary, the word
"Employer" shall be deemed to include each Participating Employer as related to
its adoption of the Plan.
10.4 EMPLOYEE TRANSFERS
It is anticipated that an Employee may be transferred between
Participating Employers, and in the event of any such transfer, the Employee
involved shall carry with him his accumulated service and eligibility. No such
transfer shall effect a termination of employment hereunder, and the
Participating Employer to which the Employee is transferred shall thereupon
become obligated hereunder with respect to such Employee in the same manner as
was the Participating Employer from whom the Employee was transferred.
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10.5 PARTICIPATING EMPLOYER CONTRIBUTION
Any contribution subject to allocation during each Plan Year shall be
allocated only among those Participants of the Employer or Participating
Employer making the contribution, except if the contribution is made by an
Affiliated Employer, in which event such contribution shall be allocated among
all Participants of all Participating Employers who are Affiliated Employers in
accordance with the provisions of this Plan. On the basis of the information
furnished by the Administrator, the Trustee shall keep separate books and
records concerning the affairs of each Participating Employer hereunder and as
to the accounts and credits of the Employees of each Participating Employer. The
Trustee may, but need not, register Contracts so as to evidence that a
particular Participating Employer is the interested Employer hereunder, but in
the event of an Employee transfer from one Participating Employer to another,
the employing Employer shall immediately notify the Trustee thereof.
10.6 AMENDMENT
Amendment of this Plan by the Employer at any time when there shall be
a Participating Employer hereunder shall only be by the written action of each
and every Participating Employer and with the consent of the Trustee where such
consent is necessary in accordance with the terms of this Plan.
10.7 DISCONTINUANCE OF PARTICIPATION
Any Participating Employer shall be permitted to discontinue or revoke
its participation in the Plan. At the time of any such discontinuance or
revocation, satisfactory evidence thereof and of any applicable conditions
imposed shall be delivered to the Trustee. The Trustee shall thereafter
transfer, deliver and assign Contracts and other Trust Fund assets allocable to
the Participants of such Participating Employer to such new Trustee as shall
have been designated by such Participating Employer, in the event that it has
established a separate pension plan for its Employees, provided however, that no
such transfer shall be made if the result is the elimination or reduction of any
"Section 411(d)(6) protected benefits" in accordance with Section 7.l(c). If no
successor is designated, the Trustee shall retain such assets for the Employees
of said Participating Employer pursuant to the provisions of the Trust. In no
such event shall any part of the corpus or income of the Trust as it relates to
such Participating Employer be used for or diverted to purposes other than for
the exclusive benefit of the Employees of such Participating Employer.
10.8 ADMINISTRATOR'S AUTHORITY
The Administrator shall have authority to make any and all necessary
rules or regulations, binding upon all Participating Employers and all
Participants, to effectuate the purpose of this Article.
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10.9 TRUST EXCULPATION CLAUSE
This Agreement and all documents, agreements, understandings and
arrangements relating to this transaction have been negotiated, executed and
delivered on behalf of New Plan Realty Trust by the Trustees or officers thereof
in their representative capacity under the Amended and Restated Declaration of
Trust of New Plan Realty Trust dated as of January 15, 1996, and not
individually, and bind only the Trust Estate of New Plan Realty Trust, and no
trustee, officer, employee, agent or shareholder of New Plan Realty Trust shall
be bound or held to any personal liability in connection with the obligation of
New Plan Realty Trust thereunder, and any person or entity dealing with New Plan
Realty Trust in connection therewith shall look solely to the Trust Estate for
the payment of any claim or for the performance of any obligation thereunder.
The foregoing shall also apply to any future documents, agreements,
understandings, and arrangements which may relate to this transaction.
IN WITNESS WHEREOF, this Plan has been executed the day and year first
above written.
New Plan Realty Trust
By /s/ James M. Steuterman
------------------------------------
EMPLOYER
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EXHIBIT 4.2
TRUST AGREEMENT
<PAGE>
THIS TRUST AGREEMENT (this "Agreement") is entered into on this 27TH day of
February, 1998 by and between NEW PLAN REALTY TRUST (the "Company") and RELIANCE
TRUST COMPANY (the "Trustee").
W I T N E S S E T H:
-------------------
WHEREAS, the Company maintains, for the benefit of its eligible employees
and those of its participating affiliate companies, the NEW PLAN REALTY TRUST
RETIREMENT AND 401(K) SAVINGS PLAN (the "Plan"), which is intended to qualify
under Section 401(a) of the Internal Revenue Code of 1986, as amended (the
"Code");
WHEREAS, the Company desires to appoint the Trustee as a directed trustee
to hold and administer the assets of the Plan in accordance with this Agreement;
and
WHEREAS, the Trustee has agreed to serve as directed trustee of the trust
established under this Agreement;
NOW, THEREFORE, the Company and the Trustee hereby mutually covenant and
agree as follows:
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I DEFINITIONS.................................................. 1
1.1 Administrator................................................ 1
1.2 Beneficiary.................................................. 1
1.3 Code......................................................... 1
1.4 Company...................................................... 1
1.5 ............................................................. 1
1.6 Company Stock................................................ 1
1.7 Custodian.................................................... 1
1.8 ERISA........................................................ 1
1.9 FBSI......................................................... 1
1.10 FBSI Account................................................. 1
1.11 Investment Committee......................................... 1
1.12 Investment Fund.............................................. 1
1.13 Investment Manager........................................... 2
1.14 Participant.................................................. 2
1.15 Participating Company........................................ 2
1.16 Plan......................................................... 2
1.17 Recordkeeper................................................. 2
1.18 Trust........................................................ 2
1.19 Trust Fund................................................... 2
1.20 Trustee...................................................... 2
ARTICLE II ESTABLISHMENT OF THE TRUST................................... 3
2.1 Trust Established............................................ 3
2.2 Limit of Participating Companies' Interests.................. 3
(a) No Right to Reversion................................... 3
(b) Return of Contributions................................. 3
2.3 Trustee's Conditional Acceptance............................. 3
(a) Directed Trustee........................................ 3
(b) Limitations on Investments.............................. 4
(c) Compensation............................................ 4
ARTICLE III DUTIES OF TRUSTEE............................................ 5
3.1 Duties....................................................... 5
(a) Receipt of Contributions................................ 5
(b) Management of Funds..................................... 5
(c) Payments................................................ 5
(d) Records................................................. 5
(e) Authorized Acts......................................... 5
(f) Acceptance of Rollovers................................. 5
</TABLE>
iii
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<TABLE>
<S> <C> <C>
ARTICLE IV INVESTMENT OF TRUST ASSETS................................... 6
4.1 General Investment Power/Investment Funds.................... 6
(a) Authority of Investment Committee............................ 6
(b) Investment Fund.............................................. 6
(c) Funding Policy............................................... 6
4.2 Participant Direction of Investments......................... 6
4.3 Investment Managers.......................................... 6
(a) Appointment............................................. 6
(b) Contractual Arrangement................................. 7
(c) Trustee's Duties........................................ 7
(d) Failure to Direct....................................... 7
(e) Termination of Appointment.............................. 7
4.4 Manner and Effect of Directions.............................. 8
(a) Delegation of Authority to Custodian.................... 8
(b) Manner of Direction..................................... 8
(c) Liability for Authorized Acts........................... 8
4.5 Authorization of Designee(s)................................. 8
ARTICLE V POWERS OF TRUSTEE............................................ 9
5.1 General Authority............................................ 9
5.2 Specific Powers.............................................. 9
(a) Purchase of Property.................................... 9
(b) Disposition of Property................................. 9
(c) Retention of Cash....................................... 9
(d) Exercise of Owner's Rights.............................. 9
(e) Registration of Investments.............................10
(f) Borrowing...............................................10
(g) Qualified Pooled Investments............................10
(h) Purchase of Contracts...................................10
(i) Execution of Instruments................................10
(j) Settlement of Claims and Debts..........................10
(k) Employment of Agents, Advisers and Counsel..............10
(l) Power to do any Necessary Act...........................11
5.3 Authorized Investments.......................................11
(a) General Definition......................................11
(b) Limitation on Investment in Securities of the Company...11
(c) Responsibility for Compliance...........................11
5.4 Prohibited Transactions......................................11
5.5 Participant Loans............................................12
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C> <C>
ARTICLE VI ADMINISTRATION...............................................13
6.1 Bonds and Reports To Court...................................13
6.2 Accounting by Trustee........................................13
(a) Books and Records.......................................13
(b) Accounting..............................................13
(c) Release.................................................13
(d) Valuations..............................................14
(e) Reliance on Recordkeeper................................14
6.3 Expenses.....................................................14
ARTICLE VII REMOVAL AND RESIGNATION OF TRUSTEE; SUCCESSOR TRUSTEE........15
7.1 Removal and Resignation......................................15
7.2 Final Accounting.............................................15
ARTICLE VIII AMENDMENT OF TRUST; TERMINATION OF PLAN......................16
8.1 Amendment of Trust...........................................16
(a) Right to Amend..........................................16
(b) Exclusive Benefit.......................................16
8.2 Termination of Plan..........................................16
ARTICLE IX MISCELLANEOUS................................................17
9.1 Nonalienation of Benefits....................................17
9.2 Exclusive Benefit............................................17
9.3 Effect of Plan...............................................17
9.4 Entire Agreement.............................................17
9.5 Approval of the Company......................................17
9.6 Notices......................................................18
9.7 Liability for Predecessor or Successor.......................18
9.8 Liability for Acts of Others.................................18
9.9 Indemnification..............................................18
9.10 Controlling Law..............................................19
9.11 Effective Date...............................................19
9.12 Execution in Counterpart.....................................19
9.13 Trust Exculpation Clause.....................................19
</TABLE>
v
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ARTICLE I
DEFINITIONS
The following words and phrases, when used herein with an initial capital
letter, shall have the meanings set forth below unless a different meaning
plainly is required by the context. Any reference to a section number shall
refer to a section of this Agreement unless otherwise specified.
1.1 Administrator means the person, committee or entity appointed by the
Company to serve as plan administrator of the Plan within the meaning of Code
Section 414(g). Unless the Company notifies the Trustee in writing of the
appointment of an Administrator, the Company shall be deemed to the
Administrator.
1.2 Beneficiary means any person designated under the terms of the Plan
to receive benefits payable upon the death of a Participant.
1.3 Code means the Internal Revenue Code of 1986, as amended.
1.4 Company means New Plan Realty Trust and its successors that adopt the
Plan.
1.5
1.6 Company Stock means the common stock of the Company or any other
qualifying employer security within the meaning of ERISA Section 407(d)(5).
1.7 Custodian means National Financial Services Corporation, which shall
serve as custodian for the Trust Fund.
1.8 ERISA means the Employee Retirement Income Security Act of 1974, as
amended.
1.9 FBSI means Fidelity Brokerage Services, Inc.
1.10 FBSI Account means the brokerage account established with FBSI for
the purpose of investing the assets of the Trust.
1.11 Investment Committee means the person, committee or entity appointed
in accordance with the terms of the Plan to make and effect investment decisions
under the Plan and Trust. Unless the Company notifies the Trustee in writing of
the appointment of an Investment Committee, the Administrator shall be deemed to
be the Investment Committee.
1.12 Investment Fund means any of the separate funds established by the
Investment Committee for the investment of Plan assets.
1
<PAGE>
1.13 Investment Manager means any person, corporation or other
organization or association appointed by the Investment Committee pursuant to
the terms of Section 4.3 to manage, acquire or dispose of the assets of an
Investment Fund.
1.14 Participant means an employee or former employee of a Participating
Company who has an account balance under the Plan.
1.15 Participating Company means the Company and any of its affiliates
that has adopted or hereafter may adopt the Plan for the benefit of its
employees and which continues to participate in the Plan.
1.16 Plan means New Plan Realty Trust Retirement and 401(k) Savings Plan,
as such Plan may be amended from time to time.
1.17 Recordkeeper means Geller & Wind, Ltd., the Plan's duly appointed
recordkeeper, or any successor recordkeeper appointed upon written notice from
the Company to the Trustee.
1.18 Trust means the trust established by this Agreement.
1.19 Trust Fund means the total amount of cash and other property held
from time to time under this Agreement.
1.20 Trustee means Reliance Trust Company.
2
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ARTICLE II
ESTABLISHMENT OF THE TRUST
2.1 Trust Established.
The Company hereby establishes with the Trustee, as a funding medium
for the Plan, a Trust consisting of the Trust Fund and such earnings, profits,
increments, additions and appreciation thereto and thereon as may accrue from
time to time.
2.2 Limit of Participating Companies' Interests.
(a) No Right to Reversion. Except as provided in subsection (b)
hereof, the Participating Companies shall not have any right, title,
interest, claim or demand whatsoever in or to the funds held by the
Trustee, other than the right to a proper application thereof and
accounting therefor by the Trustee as provided herein, nor shall any, funds
revert to any Participating Company.
(b) Return of Contributions. Any other provisions of this Agreement
or the Plan notwithstanding, if and to the extent permitted by the Code,
ERISA and other applicable laws and regulations thereunder, upon the
Company's request, a contribution (i) made by a mistake in fact, or (ii)
conditioned upon the deductibility of the contribution under Code Section
404, shall be returned to the specified Participating Company within 1 year
after the mistaken payment of the contribution or the disallowance of the
deduction (to the extent disallowed), whichever is applicable.
2.3 Trustee's Conditional Acceptance.
The Trustee accepts the Trust hereby created and agrees to perform
the duties hereby required of the Trustee, subject, however, to the following
conditions:
(a) Directed Trustee. The parties expressly acknowledge and agree
that the Trustee is a directed trustee as described in ERISA Section
403(a). In the management and control of the Trust Fund, the Trustee shall
be subject to the direction of the Company, the Administrator and the
Investment Committee, and, to the extent applicable under the terms of this
Agreement, the directions of Investment Managers. The Trustee shall not
make any investment review of, consider the propriety of holding or
selling, or vote (other than as directed by the Administrator, the
Investment Committee or an appointed Investment Manager) any assets held in
the Trust Fund. The Trustee shall have no responsibility to review or make
recommendations regarding investments made at the direction of the Company,
Administrator, the Investment Committee or an Investment Manager. The
Company, the Administrator and the Investment Committee shall not issue any
directions to the Trustee that are in violation of the terms of the Plan or
this Agreement or prohibited by ERISA.
3
<PAGE>
(b) Limitations on Investments. Notwithstanding any provision in
this Agreement to the contrary, unless otherwise agreed to in writing by
the Trustee, all of the assets of the Trust shall be invested in shares of
investment companies registered under the Investment Company Act of 1940
and other securities traded on the FBSI trading system, shares of Company
Stock (to the extent directed by the Investment Committee), and such other
investments as the Custodian agrees to hold in custody. The Company hereby
authorizes and directs the Trustee to enter into the Trust Account
Application attached hereto in order to establish an FBSI Account and to
enter into such other agreements with the Custodian or FBSI as the Company
may direct from time to time.
(c) Compensation. The Trustee shall be entitled to compensation for
its services under this Agreement at such rates as from time to time the
Trustee and the Company shall agree in writing.
4
<PAGE>
ARTICLE III
DUTIES OF TRUSTEE
3.1 Duties.
It shall be the duty of the Trustee hereunder:
(a) Receipt of Contributions. To receive any contributions paid to
it under this Agreement in cash, shares of Company Stock or in other
property acceptable to the Trustee. The Trustee shall not be responsible
for the calculation or collection of any Contribution required to be paid
by a Participating Company to the Trustee under the Plan, but shall be
responsible only for property actually received by it pursuant to this
Agreement;
(b) Management of Funds. In accordance with directions received
under the terms of this Agreement, to hold, invest, reinvest, manage and
administer (except as otherwise provided herein) all contributions so
received, together with the income therefrom and any other increment
thereon, for the exclusive benefit of Participants and their Beneficiaries
in accordance with the terms of this Agreement;
(c) Payments. In accordance with the terms of the separate Payment
Agency Agreement between the Company and the Trustee, to make payments out
of the Trust Fund to such persons, in such amounts, in such manner, at such
time and for such purposes as may be specified in written directions of the
Administrator or its authorized designee;
(d) Records. To keep such accounts and records and make such reports
and disclosures as shall be required under this Agreement;
(e) Authorized Acts. To take any action directed by the Company, the
Investment Committee, the Administrator, or the authorized designee of any
of them. The Trustee may rely on any such direction without question and
shall not be liable for any failure to act pending receipt of any such
direction;
(f) Acceptance of Rollovers. At the direction of the Administrator,
to accept a contribution of cash distributed or distributable to a
Participant from another employee benefit plan qualified under Code Section
401(a), or from an individual retirement account or annuity described in
Code Section 408. The Administrator shall be solely responsible for
determining that any such contribution represents an eligible rollover
contribution within the meaning of Code Section 402(C)(4) or Code Section
408(d)(3).
5
<PAGE>
ARTICLE IV
INVESTMENT OF TRUST ASSETS
4.1 General Investment Power/Investment Funds.
(a) Authority of Investment Committee. Except as provided in
Sections 4.2 and 4.3, the Investment Committee shall have all authority and
responsibility for the management, disposition and investment of the Trust
Fund, and the Trustee shall comply with directions of the Investment
Committee. The Investment Committee shall not issue any directions that are
in violation of the terms of the Plan or this Agreement or prohibited by
ERISA.
(b) Investment Fund. The Trust shall be divided into one or more
separate Investment Funds, the number, makeup and description of which
shall be determined from time to time by the Investment Committee. The
Trustee shall implement, terminate, value, transfer to and from and
allocate the gains, losses and expenses among the Investment Funds in
accordance with the proper directions of the Investment Committee, the
Administrator, or their delegatees, and, to the extent applicable under the
terms of this Agreement, the directions of Investment Managers.
(c) Funding Policy. The Investment Committee shall have
responsibility for establishing and carrying out a funding policy and
method as required under ERISA Section 402(b)(1), consistent with the
objectives of the Plan and the requirements of ERISA. The Trustee shall not
be responsible for the proper diversification of the Trust Fund, for the
prudence of any investment of Trust assets, or for compliance with
statutory limitations on the amount of investment in securities or other
property of the Company or its affiliates.
4.2 Participant Direction of Investments.
To the extent provided for under the Plan, each Participant and
Beneficiary shall have investment authority over his or her Account and may
direct the investment and reinvestment of assets among the Investment Funds. The
Administrator or its designee (which may be the Recordkeeper) shall communicate
such directions to the Trustee under procedures established by the Trustee and
the Administrator, and the Trustee shall follow and carry out such directions.
If a Participant or Beneficiary who has investment authority under the terms of
the Plan fails to provide such directions, the Investment Committee shall direct
the investment of the Participant's or Beneficiary's Account among the
Investment Funds. The Trustee shall not be liable for any loss that results from
a Participant or Beneficiary's exercise of investment control.
4.3 Investment Managers.
(a) Appointment. The Investment Committee may, but shall not be
required to, appoint one or more Investment Managers to manage the assets
of all or any one or more of the Investment Funds. Each such Investment
Manager shall be either (i) registered as an
6
<PAGE>
investment adviser under the Investment Advisers Act of 1940; (ii) a bank,
as defined in such Act; or (iii) an insurance company qualified to perform
the services of Investment Manager under the laws of more than one state.
The Investment Committee shall obtain from any Investment Manager so
appointed by it a written statement acknowledging (i) that such Investment
Manager is or on the effective date of its appointment will become a
fiduciary within the meaning of ERISA Section 3(21)(A) with respect to the
Trust assets under its management; (ii) certifying that such Investment
Manager has the power to manage, acquire or dispose of Trust assets in the
manner contemplated by the contract or other written instrument by which
its appointment is or will be effected; and (iii) certifying that it is
either an investment adviser, a bank or an insurance company which is
qualified to be appointed as an Investment Manager under this Agreement.
(b) Contractual Arrangement. The Investment Committee shall enter
into a written contract or agreement with each such Investment Manager in
connection with its appointment as such, and such contract shall be subject
to such terms and conditions and shall grant to the Investment Manager such
authority and responsibilities in the management of the applicable
Investment Fund assets as the Investment Committee deems appropriate under
the circumstances. Without limiting the generality of the foregoing, such
contract may establish investment objectives for the assets of the
Investment Fund(s) under the management of the Investment Manager and may
limit the types of assets that may be acquired or held by such Investment
Fund(s).
(c) Trustee's Duties. With respect to each Investment Fund the
management of which has been delegated to an Investment Manager, the
Trustee shall follow and carry out the instructions of the appointed
Investment Manager with respect to the acquisition, disposition and
reinvestment of assets of such Investment Fund, including instructions
relating to the exercise of all ownership rights in such assets, and the
Trustee shall not be under any obligation to invest or otherwise manage any
assets allocated to such Investment Fund.
(d) Failure to Direct. In the event that an appointed Investment
Manager shall fail to direct the Trustee with respect to investment of all
or any portion of the cash held in an Investment Fund under its management,
the Trustee shall invest such cash only when and as directed by the
Investment Committee.
(e) Termination of Appointment. Upon the termination of the
appointment of an Investment Manager, the Investment Committee shall (i)
appoint a successor Investment Manager with respect to the Investment
Fund(s) formerly under the management of the terminated Investment Manager,
(ii) direct the Trustee to merge or combine such Investment Fund(s) with
other Investment Fund(s) or Trust assets, or (iii) direct the Trustee to
invest the assets of such Investment Fund as the Investment Committee deems
appropriate in accordance with the existing funding policy.
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4.4 Manner and Effect of Directions.
(a) Delegation of Authority to Custodian. With respect to all
assets held by the Custodian in accordance with Section 2.3(b), the Trustee
is authorized and directed to delegate to the Custodian the authority and
responsibility for receiving and carrying out the directions of the
Company, the Administrator, the Investment Committee or their designees,
and, to the extent applicable under the terms of this Agreement, the
directions of any Investment Manager. The Trustee is authorized and
directed to enter into such agreements with the Custodian as are necessary
or appropriate to effect such delegation. The Company represents that all
directions given by it in any capacity under this Agreement, whether to the
Trustee or the Custodian, shall comply with the terms of the Plan, this
Agreement, ERISA and other applicable law.
(b) Manner of Direction. Any direction, request or approval of the
Company, the Administrator, the Investment Committee or any other party to
whom authority to give such directions, requests or approvals is delegated
under the powers conferred under this Agreement (including, without
limitation, the Recordkeeper and its designees) shall be provided to the
Trustee or the Custodian in writing, by automated telephone response
system, electronic data transmission or such other means as is acceptable
to the Trustee or the Custodian, as applicable.
(c) Liability for Authorized Acts. The Trustee shall incur no
liability to anyone for any action which it or the Custodian as its
delegatee takes pursuant to a direction, request or approval given by the
Company, the Investment Committee, the Administrator or by any other party
(including, without limitation, the Recordkeeper and any of its agents) to
whom authority to give such directions, requests or approvals is delegated
under the powers conferred upon the Company, the Investment Committee, the
Administrator or such other party under this Agreement.
4.5 Authorization of Designee(s).
The Administrator and the Investment Committee may each appoint one or
more designees to act on their behalf. If a designee (or designees) is
appointed, the appropriate committee shall furnish the Trustee with written
documentation of the appointment and a specimen signature of each designee. The
Trustee shall be entitled to rely upon such documentation until the Trustee is
otherwise notified in writing.
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ARTICLE V
POWERS OF TRUSTEE
5.1 General Authority.
In accordance with the directions of the Investment Committee,
Participants and Beneficiaries and any Investment Managers as provided in
Article IV, the Trustee shall receive, hold, manage, convert, sell, exchange,
invest, reinvest, disburse and otherwise deal with the assets of the Trust,
including contributions to the Trust and the income and profits therefrom,
without distinction between principal and income and in the manner and for the
uses and purposes set forth in the Plan and as hereinafter provided.
5.2 Specific Powers.
In the management of the Trust, the Trustee shall have the following
powers in addition to the powers customarily vested in trustees by law and in no
way in derogation thereof; provided, all such powers shall be exercised only
upon and in accordance with the directions of the Investment Committee, the
Administrator and, to the extent applicable, any duly appointed Investment
Managers:
(a) Purchase of Property. With any cash at any time held by it, to
purchase or subscribe for any authorized investment (as defined in Section
5.3) and to retain the same in trust;
(b) Disposition of Property. To sell, exchange, transfer or
otherwise dispose of any property at any time held by it;
(c) Retention of Cash. To hold cash without interest in such amounts
as may be reasonable for the proper operation of the Plan and the Trust;
(d) Exercise of Owner's Rights. To give general or special proxies
or powers of attorney with or without power of substitution with respect to
any corporate stock or other security; to exercise any conversion
privileges, subscription rights or other options, and to make any payments
incidental thereto; to oppose, consent to, or otherwise participate in,
reorganizations or other changes affecting any stock, bond, note or other
property, and to delegate discretionary powers and pay any assessments or
charges, in connection therewith; and generally to exercise any of the
powers of an owner with respect to any stock, bond, note or other property
held as part of the Trust; provided, notwithstanding anything herein or in
the Plan to the contrary, the Investment Committee shall instruct the
Trustee with respect to the voting, tendering or exchanging shares of
Company Stock except to the extent that such duties are made the
responsibility of Participants and Beneficiaries under the terms of the
Plan.
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(e) Registration of Investments. To cause any stock, bond, other
security or other property held as part of the Trust to be registered in
its own name or in the name of one or more of its nominees; provided, the
books and records of the Trustee shall at all times show that all such
investments are part of the Trust;
(f) Borrowing. To borrow or raise money for the purposes of the
Trust in such amounts, and upon such terms and conditions, as determined by
the Investment Committee; and, for any sum so borrowed, to issue its
promissory note as Trustee and to secure the repayment thereof by pledging
all or any part of the Trust Fund; and no person lending money to the
Trustee shall be bound to see to the application of the money lent or to
inquire into the validity, expediency or propriety of any such borrowing;
(g) Qualified Pooled Investments. To transfer, at any time and from
time to time, all or any part of the Trust Fund to, or withdraw the same
from, any pooled Investment Fund or group or collective trust, invested in
similar types of securities or other investments, maintained by a bank or
trust company (including, if applicable, the Trustee) supervised by a state
or federal agency, which has been determined by the Internal Revenue
Service to be a qualified trust or fund exempt from federal income tax
under Code Section 501(a) and which has been established to permit separate
pension and profit sharing trusts qualified under Code Section 401(a) to
pool some or all of their funds for investment purposes; to the extent the
Trust Fund is invested in such a pooled fund or group or collective trust,
the terms of the instrument establishing such pooled fund or group or
collective trust are made a part of this Agreement as fully as if set forth
at length herein; the commingling of assets of this Trust with assets of
other qualified participating trusts in such pooled funds or group or
collective trusts is specifically authorized;
(h) Purchase of Contracts. To apply for, purchase, hold, transfer,
surrender and exercise all incidents of ownership of any life insurance or
annuity contract (but not a contract for a life annuity unless the Plan
provides for the distribution of benefits in such form) which the
Investment Committee directs it to purchase;
(i) Execution of Instruments. To make, execute, acknowledge and
deliver any and all documents of transfer and conveyance and any and all
other instruments, which may be necessary or appropriate to carry out the
powers herein granted;
(j) Settlement of Claims and Debts. To settle, compromise or submit
to arbitration any claims, debts or damages due or owing to or from the
Trust, to commence or defend suits or legal or administrative proceedings
and to represent the Trust in all suits and legal and administrative
proceedings;
(k) Employment of Agents, Advisers and Counsel. To employ suitable
agents, actuaries, accountants, investment advisers, brokers and counsel,
and to pay their reasonable expenses and compensation. Counsel may be
counsel to the Company, and such counsel's
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advice may be sought on any legal matter including the interpretation of
this Agreement and the Plan. The Trustee shall be fully protected in acting
on advice of counsel to the Company, if such counsel is acting on behalf of
the Company; and
(l) Power to do any Necessary Act. To do all acts which it may deem
necessary or proper and to exercise any and all powers of the Trustee under
the Plan and this Agreement upon such terms and conditions as it may deem
in the best interests of the Trust.
5.3 Authorized Investments.
(a) General Definition. "Authorized investment" as used in this
Article V shall mean bonds, debentures, notes or other evidences of
indebtedness; stocks (regardless of class) or other evidences of ownership,
in any corporation, mutual investment fund, investment company, association
or business trust; annuity contracts (other than life annuity contracts);
guaranteed income contracts; and savings accounts and certificates and
interest-bearing deposits in any depository institution (including the
Trustee of any affiliate of the Trustee). To the extent directed by the
Investment Committee, "authorized investment" shall include Company Stock.
"Authorized investments" shall not be limited to that class of investments
which are defined as legal investments for trust funds under the laws of
the state in which the Company has its principal place of business or of
any other jurisdiction.
(b) Limitation on Investment in Securities of the Company.
Notwithstanding anything herein to the contrary, no assets of the Trust
Fund shall be invested in securities of the Company or an affiliate unless
the Investment Committee determines that such investment may be made
without registration under the federal Securities Act of 1933, as amended,
and under any applicable state law, or in the alternative, that the
securities have been so registered or qualified. The Investment Committee
shall specify any restrictive legend that is required to be set forth on
the certificates for the securities and the procedures to be followed by
the Trustee to effect a resale of such securities. The Investment Committee
shall only direct the investment of Trust funds in securities of the
Company or an affiliate if those securities are traded on an exchange
permitting a readily ascertainable fair market value.
(c) Responsibility for Compliance. The responsibility for
determining whether any investment of Trust assets complies with the terms
of this Agreement and applicable law shall lie solely with the Investment
Committee, and the Trustee shall have no responsibility to ascertain
whether any investment made at the direction of the Investment Committee or
other authorized person complies with the terms of this Agreement or
applicable law.
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5.4 Prohibited Transactions.
Notwithstanding the provisions of Section 5.2, in no event shall the
Trustee knowingly exercise any powers under the Plan or this Agreement in a
manner that will constitute a prohibited transaction, as defined in Code Section
4975 or in ERISA Section 406, for which an exemption does not exist.
5.5 Participant Loans.
Loans to Participants shall be granted and administered by the
Administrator, provided that the Administrator may delegate some or all
responsibility for granting and administering loans to the Recordkeeper. The
Trustee shall distribute cash to Participants who are granted loans in such
amounts and at such times as directed by the Administrator or the Recordkeeper.
The Trustee shall have no responsibility to ascertain whether a loan complies
with the provisions of the Plan or applicable law, for the decision of the
Administrator or Recordkeeper to grant a loan, or for the collection and
repayment of a loan.
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<PAGE>
ARTICLE VI
ADMINISTRATION
6.1 Bonds and Reports To Court.
The Trustee shall be bonded to the extent required by law, except
that, to the extent the requirement of any such bond may be waived, such waiver
shall be deemed to have been exercised, and no such bond shall be required. The
premiums for such bonds may be treated as expenses of the Plan to the extent not
paid by the Company. The Trustee shall not be required to make any inventory or
appraisal or report to any court or to secure any order of any court for the
exercise of any power herein contained.
6.2 Accounting by Trustee.
(a) Books and Records. The Recordkeeper generally shall be
responsible for keeping accurate and detailed records of all investments,
receipts and disbursements and other transactions hereunder, including such
specific records as shall be required by law and such additional records as
may be agreed upon in writing between the Administrator or the Investment
Committee and the Trustee. All books and records relating thereto shall be
open to inspection and audit at all reasonable times by any person or
persons designated by the Administrator or the Investment Committee. The
Trustee shall promptly provide copies of such books or records to any
persons designated by the Administrator.
(b) Accounting. Following the close of each calendar year, or more
frequently as the Trustee and the Administrator may agree, and after the
effective date of the removal or resignation of the Trustee, the Trustee
shall file with the Administrator and the Investment Committee (and/or
their authorized designees) a written statement, setting forth all
investments, receipts, disbursements and other transactions, effected by it
during such year or during the period beginning as of the close of the last
preceding year to the date of such removal or resignation. The Trustee
shall deliver such statement in a timely manner to permit the preparation
of Participant statements or to provide for the orderly replacement of the
Trustee, as the case may be. Except as may be required by statute or by
regulations published by federal government agencies with respect to
reporting and disclosure, as may be required pursuant to the terms of the
Plan or this Agreement or as reasonably may be requested by the
Administrator or the Investment Committee, no person shall have the right
to demand or to be entitled to any further or different accounting by the
Trustee.
(c) Release. Except with respect to alleged breaches of fiduciary
responsibility under ERISA, upon the expiration of 60 days from the date of
filing such annual or other statement, the Trustee shall be forever
released and discharged from any liability or accountability to anyone as
respects the propriety of its acts or transactions shown in such account,
except with respect to any acts or transactions as to which the
Administrator or Investment Committee, within such 60-day period, shall
file with the Trustee its written
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<PAGE>
disapproval. In the event such a disapproval is filed, and unless the
matter is compromised by agreement between the Trustee and the
Administrator or the Investment Committee, the Trustee shall file its
statement covering the period from the date of the last annual statement to
which no objection was made in any court of competent jurisdiction for
audit or adjudication. With respect to alleged breaches under ERISA, the
Trustee shall be entitled to rely upon the statutes of limitations set
forth therein.
(d) Valuations. The Trustee shall deliver to the Administrator and
the Investment Committees (and their authorized designees) such information
as may be required or requested to permit the Trust Fund to be valued at
such other times as the Administrator or Investment Committee shall deem
appropriate.
(e) Reliance on Recordkeeper. The Trustee shall be entitled to rely
on the Recordkeeper for the maintenance and provision of all records
specified in this Section 6.2.
6.3 Expenses.
The expenses incurred by the Trustee in the performance of its duties
hereunder, including fees for legal services rendered to the Trustee,
compensation of the Trustee and all other proper charges and disbursements of
the Trustee, including all personal property taxes, income taxes and other taxes
of any and all kinds whatsoever, that may be levied or assessed under existing
or future laws upon or in respect of the Trust or any money, property or
security forming a part of the Trust Fund, shall be paid by the Trustee from the
Trust Fund, and the same shall constitute a charge upon the Trust Fund, unless
the Company pays the same or any part thereof. To the extent a Participating
Company pays any expenses that are properly payable from the Trust Fund, the
Trustee shall reimburse the Participating Company from the Trust Fund if
requested to do so by the Participating Company.
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ARTICLE VII
REMOVAL AND RESIGNATION OF TRUSTEE; SUCCESSOR TRUSTEE
7.1 Removal and Resignation.
The Company may remove the Trustee at any time upon 60 days' written
notice delivered to the Trustee. The Trustee may resign at any time upon 60
days' written notice delivered to the Company.
7.2 Final Accounting.
In any such case, the Company shall notify the Trustee of the
appointment of a successor trustee, and the Trustee shall convey and deliver to
such successor trustee all of the assets of the Trust Fund. Within 90 days after
any such removal or resignation of the Trustee, the Trustee shall make a final
accounting to the Company, the Administrator and the Investment Committee as of
the effective date of such removal or resignation pursuant to the terms of
Section 6.2.
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ARTICLE VIII
AMENDMENT OF TRUST; TERMINATION OF PLAN
8.1 Amendment of Trust.
(a) Right to Amend. The Company and the Trustee may by written
agreement amend this Agreement at any time or from time to time, and any
such amendment by its terms may be retroactive.
(b) Exclusive Benefit. Notwithstanding the foregoing, no amendment
shall be made which would authorize or permit any assets of the Trust Fund,
other than such assets as are required to pay taxes and administration
expenses, to be used for or diverted to purposes other than the exclusive
benefit of Participants or their or Beneficiaries, except that this
Agreement may be amended retroactively and to affect the benefits of
Participants and their and Beneficiaries if necessary to cause the Plan and
Trust to be or remain qualified and exempt from income taxes under the
Code.
8.2 Termination of Plan.
In the event of termination of the Plan, the Trustee shall continue to
hold the Trust, to be applied and distributed in accordance with the terms of
the Plan.
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ARTICLE IX
MISCELLANEOUS
9.1 Nonalienation of Benefits.
Except as provided under the provisions of the Plan relating to loans
to Participants and to qualified domestic relations orders and to the extent
permitted by law, neither the benefits payable from the Trust Fund nor any
interest in any of the assets of the Trust Fund shall be subject in any manner
to the claim of any creditor of a Participant, or Beneficiary or to any legal
process by any creditor of such Participant, or Beneficiary; and neither a
Participant nor any or Beneficiary shall have any right to alienate, commute,
anticipate or assign any right to benefits payable from or any interest in the
Trust, except as provided in the Plan.
9.2 Exclusive Benefit.
Except as otherwise provided in the Plan and this Agreement, no part
of the Trust hereunder shall be used for or diverted to any purpose other than
for the exclusive benefit of Participants and Beneficiaries or the payment of
expenses as herein provided.
9.3 Effect of Plan.
The Trustee is not a party to the Plan, and in no event shall the
terms of the Plan, either expressly or by implication, be deemed to impose upon
the Trustee any power or responsibility other than as set forth in this
Agreement. In the event of any conflict between the provisions of the Plan and
this Agreement, this Agreement shall be deemed to be incorporated into and be a
part of the Plan, and the terms of this Agreement shall control over any
inconsistent terms of the Plan. The Trustee shall not be a named fiduciary under
the Plan and shall not have the authority to interpret the Plan.
9.4 Entire Agreement.
This Agreement constitutes the entire Agreement between the parties
hereto with regard to the subject matter hereof, and there are no other
agreements or understandings between the parties relating to the subject matter
hereof other than those set forth or provided for herein.
9.5 Approval of the Company.
The Company, the Administrator and the Investment Committee shall have
the right, on behalf of all individuals at any time having any interest in the
Trust, to approve any action taken or omitted by the Trustee.
17
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9.6 Notices.
Notices, directions and other communications provided in writing shall
be mailed to the parties at the following addresses:
If to the Company: New Plan Realty Trust
1120 Avenue of the Americas
New York, New York 10036
Attn: Valerie A. Burett
If to the Trustee: Reliance Trust Company
3384 Peachtree Road
Suite 900
Atlanta, Georgia 30326
Attn: Employee Benefits
9.7 Liability for Predecessor or Successor.
No successor trustee hereunder in any way shall be liable or
responsible for any actions or omissions of any prior trustee in the
administration of the Trust or the assets comprising the Trust prior to the date
such successor trustee assumes its obligations hereunder, nor shall any prior
trustee in any way be liable or responsible for any actions or omissions of any
successor trustee.
9.8 Liability for Acts of Others.
The Trustee shall not be liable for the acts or omissions of the
Company, the Administrator, the Investment Committee or any Investment Manager
except with respect to any acts or omissions of any such party in which the
Trustee participates knowingly or which the Trustee knowingly undertakes to
conceal, and which the Trustee knows constitutes a breach of fiduciary
responsibility of such party.
9.9 Indemnification.
In the event that the Trustee incurs any liability loss, claim, suit
or expense (including without limitation attorneys' fees) in connection with or
arising out of its provisions of services under this Agreement or its status as
Trustee hereunder, then the Company shall indemnify and hold the Trustee
harmless from and against such liability, loss, claim, suit or expense, except
to the extent such liability, loss, claim, suit or expense arises directly from
a breach by the Trustee of responsibilities specifically allocated to it by the
terms of that Agreement. The indemnification provided by this Section shall
survive the termination of this Agreement.
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9.10 Controlling Law.
This Agreement shall be construed according to the laws of the State
of Georgia except to the extent superseded by ERISA or any other federal law.
9.11 Effective Date.
This Agreement shall be effective on and after March 1, 1998.
9.12 Execution in Counterpart.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
9.13 Trust Exculpation Clause.
This Agreement and all documents, agreements, understandings and
arrangements relating to this transaction have been negotiated, executed and
delivered on behalf of New Plan Realty Trust by the Trustees or officers thereof
in their representative capacity under the Amended and Restated Declaration of
Trust of New Plan Realty Trust dated as of January 15, 1996, and not
individually, and bind only the Trust Estate of New Plan Realty Trust, and no
trustee, officer, employee, agent or shareholder of New Plan Realty Trust shall
be bound or held to any personal liability in connection with the obligation of
New Plan Realty Trust thereunder, and any person or entity dealing with New Plan
Realty Trust in connection therewith shall look solely to the Trust Estate for
the payment of any claim or for the performance of any obligation thereunder.
The foregoing shall also apply to any future documents, agreements,
understandings, and arrangements which may relate to this transaction.
IN WITNESS WHEREOF, the Company and the Trustee have caused this Agreement
to be signed by their duly authorized officers or representatives as of the day
first written above.
COMPANY:
NEW PLAN REALTY TRUST
By: /s/ James M. Steuterman
-------------------------------
Title: Exec. V.P.
----------------------------
TRUSTEE:
RELIANCE TRUST COMPANY
By:
-------------------------------
Title:
----------------------------
19
<PAGE>
EXHIBIT 5.1
CONSENT OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP
September 29, 1998
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Re: New Plan Excel Realty Trust, Inc.
Retirement and 401(k) Savings Plan
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as special Maryland corporate counsel to New Plan Excel
Realty Trust, Inc., a Maryland corporation (the "Company"), in connection with
certain matters arising out of the issuance of up to 250,000 shares (the
"Shares") of common stock, par value $.01 per share, of the Company (the "Common
Stock"), covered by the above-referenced Registration Statement filed on or
about September 29, 1998 (the "Registration Statement"), under the Securities
Act of 1933, as amended. The Shares are to be issued to the Trustees (the
"Trustees") of the New Plan Realty Trust Retirement and 401(k) Savings Plan, as
amended (the "Retirement Plan"), and pursuant to the terms thereof. Capitalized
terms used but not defined herein shall have the meanings assigned to them in
the Registration Statement.
In our capacity as special Maryland corporate counsel to the Company and as
a basis for the opinions hereinafter set forth, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of the following
documents:
(i) The charter of the Company (the "Charter"), consisting of Articles of
Incorporation filed with the State Department of Assessments and Taxation of
Maryland (the "Department") on May 13, 1993, Articles of Amendment and
Restatement of the Company filed with the Department on July 9, 1993, Articles
of Amendment and Restatement of the Company filed with the Department on May 23,
1995, Articles of Amendment filed with the Department on September 28, 1998,
Articles Supplementary filed with the Department on February 4, 1997, Articles
Supplementary filed with the Department on January 12, 1998, Articles
Supplementary filed with the Department on June 5, 1998, and Articles
Supplementary filed with the Department on September 28, 1998;
<PAGE>
New Plan Excel Realty Trust, Inc.
September 29, 1998
Page 2
(ii) The Amended and Restated Bylaws of the Company (the "Bylaws") as
adopted effective as of September 28, 1998;
(iii) Resolutions duly adopted by the Board of Directors of the Company by
unanimous written consent on or as of September 28, 1998 (collectively, the
"Directors' Resolutions");
(iv) The Retirement Plan;
(v) The form of certificate representing the Shares (the "Certificate");
(vi) A Certificate of Officer of the Company, dated as of a recent date, to
the effect that, among other things, the copies of the Charter, Bylaws,
Directors' Resolutions Certificate, and Retirement Plan are true and correct,
have not been rescinded or modified and are in full force and effect as of the
date hereof, and that the Directors' Resolutions were duly adopted at a meeting
of directors of the Company duly called and held or by the unanimous written
consent of all incumbent directors, or a committee thereof, as the case may be,
of the Company;
(vii) A status certificate of recent date issued by the Department to the
effect that the Company is duly incorporated and existing under the laws of the
State of Maryland;
(viii) The Registration Statement, including the related form of
prospectus therein, of the Company; and
(ix) Such other documents, corporate and other records of the Company and
certificates of public officials and officers of the Company as we have deemed
necessary or appropriate to provide a basis for the opinions set forth below,
subject to the limitations, assumptions and qualifications noted below.
In reaching the opinions set forth below, we have assumed the following:
(a) each person executing any instrument, document or agreement on behalf
of any party (other than the Company) is duly authorized to do so;
(b) each natural person executing any instrument, document or agreement is
legally competent to do so;
(c) all documents submitted to us as originals are authentic; all documents
submitted to us as certified, facsimile or photostatic copies conform to the
original document; all signatures on all documents submitted to us for
examination are genuine; the form and content of any documents submitted to us
as unexecuted drafts do not and will not differ in any respect relevant
<PAGE>
New Plan Excel Realty Trust, Inc.
September 29, 1998
Page 3
to this opinion from such documents as executed and delivered; and all public
records reviewed are accurate and complete;
(d) none of the Shares will be issued in violation of the provisions of the
Charter of the Company imposing restrictions on ownership and transfer of shares
of stock of the Company, and the issuance of the Shares will not cause the total
number of shares of Common Stock issued and outstanding to exceed the total
number of shares of Common Stock that the Company is then authorized to issue;
(e) the Shares will be purchased at market value by the Trustees of the
Plan or issued by the Company for good, valuable and sufficient consideration,
for the account of employees of the Company on a "matching", "bonus" or "profit
sharing" basis, all as may be determined by further action of the Board of
Directors or an authorized committee thereof (the "Corporate Proceedings"); and
(f) all certificates received by us are true, correct and complete both
when given and as of the date hereof.
Based on the foregoing, and subject to the assumptions and qualifications
set forth herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and
by virtue of the laws of the State of Maryland and is in good standing with the
SDAT.
2. The Shares have been duly authorized and, upon issuance in accordance
with and subject to the terms of the Retirement Plan and the Directors'
Resolutions relating thereto, and the Corporate Proceedings and upon payment of
the consideration as set forth therein or required thereby, such Shares will be
validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and further consent to the filing of this opinion as an exhibit to
applications to the securities commissioners of the various states of the United
States for registration of the Shares. We also consent to the identification of
our firm as Maryland counsel to the Company in the section of the Prospectus
(which is a part of the Registration Statement) entitled "Legal Matters."
This opinion is limited to the present corporate laws of the State of
Maryland and we express no opinion with respect to the laws of any other
jurisdiction. Furthermore, the opinions presented in this letter are set forth
herein and no other opinion shall be inferred beyond the matters expressly set
forth herein.
<PAGE>
New Plan Excel Realty Trust, Inc.
September 29, 1998
Page 4
The opinions set forth in this letter are rendered as of the date hereof
and are necessarily limited to laws now in effect and facts and circumstances
presently existing and brought to our attention. We assume no obligation to
supplement this opinion if any applicable law is changed after the date hereof
or if we become aware of any facts or circumstances which now exist or which
occur or arise in the future and may change the opinions expressed herein after
the date hereof.
This opinion is being furnished to you solely for your benefit.
Accordingly, it may not be relied upon by, quoted in any manner to or delivered
to any other person or entity without, in each instance, our prior written
consent.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll, LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated February 13, 1998, on our audits of the
consolidated financial statements and financial statement schedules of Excel
Realty Trust, Inc. ("Excel") and subsidiaries as of December 31, 1997 and 1996
and for each of the three years in the period ended December 31, 1997, which are
included in the Annual Report on Form 10-K of Excel for the year ended December
31, 1997. We also consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated September 9, 1997, on our audits of
the consolidated financial statements and financial statement schedules of New
Plan Realty Trust (the "Trust") as of July 31, 1997 and 1996 and for each of the
three years in the period ended July 31, 1997, which are included in the Annual
Report on Form 10-K of the Trust for the year ended July 31, 1997. We also
consent to the reference to our firm under the caption "Experts".
/s/ PricewaterhouseCoopers LLP
New York, New York
September 29, 1998
