<PAGE> 1
As filed with the Securities and Exchange Commission on May 31, 1995
Registration No. 33-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_________________________________
CASH AMERICA INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
TEXAS 75-2018239
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1600 WEST 7TH STREET
FORT, WORTH, TEXAS 76102
(Address of principal executive offices) (Zip Code)
_________________________________
CASH AMERICA INTERNATIONAL, INC.
1994 LONG-TERM INCENTIVE PLAN
AND
CASH AMERICA INTERNATIONAL, INC.
401(K) EMPLOYEES SAVINGS PLAN
(Full title of the plans)
_________________________________
DANIEL R. FEEHAN
PRESIDENT AND CHIEF OPERATING OFFICER
CASH AMERICA INTERNATIONAL, INC.
1600 WEST 7TH STREET
FORT WORTH, TEXAS 76102
(Name and address of agent for service)
(817) 335-1100
(Telephone number including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Amount Proposed maximum Proposed maximum
Title of securities to be offering price aggregate Amount of
to be registered registered(1) per share(2) offering price(2) registration fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.10 per share 1,600,000 shares $7.50 $12,000,000 $4,138
====================================================================================================================================
</TABLE>
(1) Consists of 1,400,000 shares and 200,000 shares of Common Stock
reserved for issuance to employees of Cash America International, Inc.
and its subsidiaries pursuant to the Cash America International, Inc.
1994 Long- Term Incentive Plan and the Cash America International,
Inc. 401(k) Employees Savings Plan, respectively. In addition,
pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminant amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Estimated pursuant to Rule 457(c) and (h) solely for the purposes of
computing the registration fee based upon the average of the high and
low prices for the Common Stock quoted on the New York Stock Exchange,
Inc. on May 26, 1995 under the Securities Act of 1933, as amended.
________________________________________________________________________________
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
PART II
INFORMATION REQUIRED IN Registration Statement
Item 3. Incorporation of Certain Documents by Reference.
Cash America International, Inc. (the "Corporation") hereby
incorporates by reference in this Registration Statement the following
documents previously filed with the Securities and Exchange Commission (the
"Commission");
(1) The Corporation's Annual Report on Form 10-K for the year
ended December 31, 1994;
(2) The Corporation's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1995;
(3) All documents subsequently filed by the Corporation with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the Registration Statement and to be a part
thereof from the date of filing of such documents;
(4) The description of the Corporation's common stock contained in
the Corporation's Registration Statement on Form 8-A filed with the Commission
on October 5, 1987; and
(5) Any statement contained in this Registration Statement, in an
amendment hereto or in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein, in any subsequently filed
amendment to this Registration Statement or in any document that also is
incorporated by reference herein modifies or supersedes such 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.
Item 4. Description of Securities.
Not Applicable.
__________________________________
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 of the Securities Act of 1933, as amended, and the
Note to Part I of Form S-8.
1
<PAGE> 3
Item 5. Interest of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers.
The Corporation has authority under Articles 2.02(A)16 and 2.02-1 of
the Texas Business Corporation Act to indemnify its directors and officers to
the extent provided for in such statute. The Corporation's Bylaws provide for
indemnification of directors and officers to the full extent permitted by said
provisions of the Texas Business Corporation Act. The Corporation believes
that indemnification under its Bylaws covers at least negligence by indemnified
parties, and permits the Corporation to advance litigation expenses in the case
of shareholder derivative actions or other actions, against an undertaking by
the indemnified party to repay such advances if it is ultimately determined
that the indemnified party is not entitled to indemnification. The
Corporation's Bylaws permit the Corporation to purchase and maintain liability,
indemnification and/or other similar insurance.
Item 7. Exemption from Registration Statement Claimed.
Not Applicable
Item 8. Exhibits.
The following documents are filed as a part of this Registration
Statement. Those exhibits previously filed and incorporated herein by
reference are identified below by footnotes.
<TABLE>
<CAPTION>
Exhibit Description
------- -----------
<S> <C>
4.1 Articles of Incorporation of Cash America Investments, Inc. filed in the office of the
Secretary of State of Texas on October 4, 1984. (a) (Exhibit 3.1)
4.2 Articles of Amendment to the Articles of Incorporation of Cash America Investments, Inc. filed
in the office of the Secretary of State of Texas on October 26, 1984. (a) (Exhibit 3.2)
4.3 Articles of Amendment to the Articles of Incorporation of Cash America Investments, Inc. filed
in the office of the Secretary of State of Texas on September 24, 1986. (a) (Exhibit 3.3)
4.4 Articles of Amendment to the Articles of Incorporation of Cash America Investments, Inc. filed
in the office of the Secretary of State of Texas on September 30, 1987. (b) (Exhibit 3.4)
4.5 Articles of Amendment to the Articles of Incorporation of Cash America Investments, Inc. filed
in the office of the Secretary of State of Texas on April 23, 1992 to change the Corporation's
name to "Cash America International, Inc." (c) (Exhibit 3.5)
4.6 Articles of Amendment to Articles of Incorporation of Cash America International, Inc. filed
in the office of the Secretary of State of Texas on May 31, 1993. (d) (Exhibit 3.6)
</TABLE>
2
<PAGE> 4
<TABLE>
<S> <C>
4.7 Bylaws of Cash America International, Inc. (e) (Exhibit 3.5)
4.8 Amendment to Bylaws of Cash America International, Inc. dated effective September 26, 1990.
(f) (Exhibit 3.6)
4.9 Amendment to Bylaws of Cash America International, Inc. dated effective April 22, 1992. (c)
(Exhibit 3.8)
4.10 Form of Stock Certificate. (a) (Exhibit 4.1)
4.11 Form of Stock Certificate. (f) (Exhibit 4.1a)
4.12 Form of Stock Certificate. (c) (Exhibit 4.1b)
4.13 The Corporation's 1994 Long-Term Incentive Plan. (g) (Exhibit 10.5)
4.14 The Corporation's 401(k) Employees Savings Plan.
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation.
24.1 Consent of Jenkens & Gilchrist, a Professional Corporation. (included in their opinion filed as
Exhibit 5.1)
24.2 Consent of Coopers & Lybrand L.L.P.
25.1 Power of Attorney. (see signature page of this Registration Statement)
</TABLE>
Certain Exhibits are incorporated by reference to the Exhibits show in
parenthesis contained in the Corporation's following filings with the
Securities and Exchange Commission:
(a) Registration Statement on Form S-1, File No. 33-10752.
(b) Amendment No. 1 to its Registration Statement on Form S-4,
File No. 33-17275.
(c) Annual Report on Form 10-K for the year ended December 31,
1992.
(d) Annual Report on Form 10-K for the year ended December 31,
1993.
(e) Post-Effective Amendment No. 1 to its Registration Statement
on Form S-4, File No. 33-17275.
(f) Annual Report on Form 10-K for the year ended December 31,
1990.
(g) Annual Report on Form 10-K for the year ended December 31,
1994.
The Corporation hereby undertakes that it will submit in a timely manner the
Cash America International 401(k) Employees Savings Plan (the "Plan") and any
amendment thereto to the Internal Revenue Service for purposes of obtaining a
determination letter that the Plan is qualified under Section 401 of the
Internal Revenue Code of 1986, as amended, and will make all changes required
by the Internal Revenue Service in order to qualify the Plan.
3
<PAGE> 5
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement on Form S-8, and 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 the Registration Statement.
(2) 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; and
(3) To remove from the Registration Statement by means of a
post-effective amendment any securities being registered which remain unsold at
the termination of the offering.
B. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, 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 the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. 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 of whether such
4
<PAGE> 6
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
5
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all 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 Fort Worth, Texas, on May 31, 1995:
CASH AMERICA INTERNATIONAL, INC.
By: /s/ Daniel R. Feehan
-------------------------------------
Daniel R. Feehan
President and Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints Daniel R. Feehan and Jack R.
Daugherty, and each of them, each with full power to act without the other, his
true and lawful attorneys-in-fact and agents, each with full power of
substitution and resubstitution for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments to this Registration
Statement, and to file the same with all exhibits thereto and other documents
in connection therewith, with the Commission, granting unto each of said
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he might or could do in
person hereby ratifying and confirming that each of said attorneys-in-fact and
agents or his substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates included:
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- --------- -------- ----
<S> <C> <C>
/s/ Jack R. Daugherty Chairman of the Board May 31, 1995
- -------------------------- of Directors and Chief
Jack R. Daugherty Executive Officer (Principal
Executive Officer)
/s/ Daniel R. Feehan President, Chief Operating May 31, 1995
- -------------------------- Officer and Director
Daniel R. Feehan
/s/ Dale R. Westerfeld Vice President, Chief May 31, 1995
- -------------------------- Financial Officer
Dale R. Westerfeld (Principal Financial
and Accounting Officer)
/s/ Morton A. Cohn Director May 31, 1995
- ----------------------------------
Morton A. Cohn
/s/ A. R. Dike Director May 31, 1995
- --------------------------
A. R. Dike
</TABLE>
<PAGE> 8
<TABLE>
<S> <C> <C>
/s/ James H. Greer Director May 31, 1995
- ----------------------------------
James H. Greer
Director May 31, 1995
- ----------------------------------
B. D. Hunter
/s/ Clifton H. Morris, Jr. Director May 31, 1995
- ----------------------------------
Clifton H. Morris, Jr.
/s/ Carl P. Motheral Director May 31, 1995
- ----------------------------------
Carl P. Motheral
/s/Samuel W. Rizzo Director May 31, 1995
- ----------------------------------
Samuel W. Rizzo
/s/ R. L. Waltrip Director May 31, 1995
- ----------------------------------
R. L. Waltrip
</TABLE>
<PAGE> 9
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
as amended, the trustee of the Cash America International, Inc. 401(k)
Employees Savings Plan has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Fort Worth, State of Texas, on May 31, 1995.
CASH AMERICA INTERNATIONAL, INC.
401(K) EMPLOYEES SAVINGS PLAN
By: Cash America International, Inc.
Plan Administrator
By: /s/ Hugh Simpson
----------------------------
Hugh Simpson, Vice President
<PAGE> 10
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Description
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<S> <C>
4.14 The Corporation's 401(k) Employees Savings Plan.
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation.
24.2 Consent of Coopers & Lybrand L.L.P.
</TABLE>
<PAGE> 1
EXHIBIT 4.14
<PAGE> 2
<TABLE>
<S> <C> <C>
PLAN 001
ADOPTION AGREEMENT
FOR
BANK ONE TRUST GROUP ("BANK ONE")
PROTOTYPE RETIREMENT PLAN NO. 1
For the benefit of its employees, the undersigned adopts this 401(k) Plan and in connection therewith makes the following statements
and designations, which designations are subject to change as required to obtain approval by the Internal Revenue Service. This
Adoption Agreement has been designated as Plan No. 001 by the IRS and should only be used with Bank One Basic Plan Document No. 01.
NON-STANDARDIZED 401(k) PLAN - NON-INTEGRATED AND INTEGRATED
ALLOCATION FORMULAS
- ------------------------------------------------------------------------------------------------------------------------------------
1. - Name of Employer:
CASH AMERICA INTERNATIONAL, INC.
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2. Address of Employer: | 3. Employer's Telephone Number:
1600 W. 7TH STREET | (817) 335-1100
FORT WORTH, TX 76102-2599 |
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4. Name, Address and EIN/Tax I.D. Numbers of Other Participating Employers Adopting Plan:
- ------------------------------------------------------------------------------------------------------------------------------------
5. Name of Employer's 401(k) Plan:
CASH AMERICA INTERNATIONAL, INC 401(K) EMPLOYEES SAVINGS PLAN
- ------------------------------------------------------------------------------------------------------------------------------------
6.(a) Original Effective Date of Plan | 7. Date of Adoption Agreement:
and Trust: |
| MAY 24, 1994
JANUARY 1, 1991 |
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(b) Effective Date of this | 8. Plan Number Assigned by the Employer:
Restated Plan and Trust: | [X]001 [ ]002 [ ]003 [ ]004 [ ] _______
|
APRIL 1, 1994 |
- ------------------------------------------------------------------------------------------------------------------------------------
9. Name and Address of Trustee(s):
[ ] BANK ONE, INDIANAPOLIS,N.A. [X] BANK ONE, TEXAS, N.A.
D/B/A BANK ONE TRUST GROUP D/B/A BANK ONE TRUST GROUP
111 MONUMENT CIRCLE P.O. BOX 1290
INDIANAPOLIS, IN 46277 FORT WORTH, TX 76113
[ ] ____________________________________________________________________________________________________
____________________________________________________________________________________________________
- ------------------------------------------------------------------------------------------------------------------------------------
10. Name, Address and EIN/Tax I.D. Number of Plan Administrator (if other than Employer):
- ------------------------------------------------------------------------------------------------------------------------------------
-1-
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C> <C> <C>
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11. Designation of Retirement Plan Committee (if applicable):
====================================================================================================================================
12. (a) Is the Employer a member of: | 13. Type of Entity:
|
(i) an Affiliated Service Group? | [X] Corporation [ ] Partnership
[ ] Yes [X] No |
| [ ] "Sub S" Corporation [ ] Other (Specify):
(ii) a Control Group? |
[ ] Yes [X] No | [ ] Sole Proprietor _________________________
| _________________________
(b) If the Employer is part of an Affiliated |
Service or Control Group, have all |
affiliated or controlled employers adopted |
the Plan? |
|
[ ] Yes [ ] No |
- ------------------------------------------------------------------------------------------------------------------------------------
14. Nature of Employer's Business and Standard Industrial | 15. Employer Identification Number
Classification No. of Employer: 6744 | (Tax I.D. Number): 75 - 2018239
|
- ------------------------------------------------------------------------------------------------------------------------------------
16. Predecessor Employers (Service with Employers named below shall be treated as Service with the Employer - see Section
2.40 of the Plan): N/A
- ------------------------------------------------------------------------------------------------------------------------------------
17. Employer's Fiscal Year for Federal Income Tax Purposes:
[X] Calendar Year [ ] Year beginning first day of ___________________________ (month)
- ------------------------------------------------------------------------------------------------------------------------------------
18. Plan Anniversary: JANUARY 1
(The first day of each Plan Year that begins after the Plan Effective Date)
====================================================================================================================================
DESIGNATED PLAN PROVISIONS
====================================================================================================================================
Section 2.06 For any Self-Employed Individual covered under the Plan, Compensation means Earned Income. For any
DEFINITION OF other Participant, Compensation means (Check and complete whichever of the following is applicable):
COMPENSATION
[X] (a) his Section 3401 wages (as defined in Section 2.06 of the Plan - generally wages
for federal income tax withholding purposes) actually paid to the Participant
during the applicable period.
[ ] (b) his compensation reported as "Wages, Tips and Other Compensation" on his Form W-2
actually paid to the Participant during the applicable period.
[ ] (c) his Section 415 safe-harbor compensation (as defined in Section 2.06 of the Plan)
actually paid to the Participant during the applicable period.
[X] (d) Compensation or Earned Income [X] shall include [ ] shall not include Employer
contributions made pursuant to a salary reduction agreement which are not
includible in the gross income of the Participant under Sections 125, 402(e)(3),
402(h) or 403(b) of the Code.
* [ ] (e) For purposes of making 401(a) Employer Contributions that are not integrated with
Social Security, the following items shall be excluded in determining a
Participant's Compensation:
[ ] (i) overtime pay
-2-
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C>
[ ] (ii) commissions
[ ] (iii) bonuses
** [X] (f) For the first year of Plan participation, Compensation shall exclude Compensation
paid prior to the date the Employee becomes a Plan Participant.
[ ] (g) Maximum Compensation for Plan purposes: $______________________
[X] (h) Compensation shall be determined over the following applicable period (Check one):
[X] (i) the Plan Year
[ ] (ii) the calendar year ending with or within the Plan Year
*NOTE: Choice (e) may not be elected if the Plan is a Top Heavy Plan, if the Plan is
intended to benefit a Self-Employed Individual or if the Employer chooses an
Integrated Allocation Formula (i.e., elects Section 5.02(b) below).
**NOTE: Choice (f) may not be elected if the Plan is intended to benefit a Self-Employed
Individual.
NOTE: For Plan Years beginning in 1989 and thereafter, the maximum compensation for plan
purposes cannot exceed $150,000 (as adjusted from time to time by the Secretary of
the Treasury) - See Section 2.06 of the Plan.
- ------------------------------------------------------------------------------------------------------------------------------------
Section 2.18
SIMPLIFIED For Employers that maintain significant business activities (and employ Employees) in at least
DEFINITION two significantly separate geographic areas, the simplified definition of Highly Compensated
OF HIGHLY Employee set forth in Section 2.18 of the Plan [ ] shall [X] shall not apply.
COMPENSATED
EMPLOYEE
- ------------------------------------------------------------------------------------------------------------------------------------
Section 2.19 Hours of Service shall be determined on the basis of the method selected below. The method
HOURS OF selected shall be applied to all Employees covered under the Plan. (Check one of the following):
SERVICE
[X] (a) On the basis of actual hours for which an Employee is paid or entitled to payment.
[ ] (b) On the basis of days worked.
An Employee shall be credited with 10 Hours of Service if under Section 2.19 of the
Plan such Employee would be credited with at least one Hour of Service during the
day.
[ ] (c) On the basis of weeks worked.
An Employee shall be credited with 45 Hours of Service if under Section 2.19 of the
Plan such Employee would be credited with at least one Hour of Service during the
week.
[ ] (d) On the basis of months worked.
An Employee shall be credited with 190 Hours of Service if under Section 2.19 of
the Plan such Employee would be credited with at least one Hour of Service during
the month.
- ------------------------------------------------------------------------------------------------------------------------------------
Section 2.24 The Limitation Year of the Plan shall be (Check or complete one of the following):
LIMITATION
YEAR [X] (a) calendar year.
[ ] (b) Plan Year.
[ ] (c) other 12 consecutive month period (specify):_______________________________
-3-
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C>
----------------------------------------------------------------------------------------
NOTE: All qualified plans of the Employer must use the same Limitation Year.
- ------------------------------------------------------------------------------------------------------------------------------------
Section 2.27 The Normal Retirement Age of a Participant shall be (Check and complete one of the following):
NORMAL
RETIREMENT [X] (a) the date the Participant attains Age 59 1/2 (up to Age 65).
AGE
[ ] (b) the _______ (up to 5th) anniversary of the date the Participant commenced
participation in the Plan or the date he attains Age 65, whichever is later.
[ ] (c) the _______ (up to 5th) anniversary of the date the Participant commenced
participation in the Plan or the date he attains Age 65, whichever is later, but in
no event later than Age 70.
For purposes of (b) and (c) the participation commencement date is the first day of the Plan Year
in which the Participant commenced participation in the Plan.
- ------------------------------------------------------------------------------------------------------------------------------------
Section 3.02(1) The following Employees are eligible to become Participants (Check or complete one of the following):
PARTICIPATION
REQUIREMENTS [ ] (a) All Employees of the Employer maintaining the Plan.
(Classification)
[ ] (b) All Employees of the Employer maintaining the Plan or of any other employer
required to be aggregated under Section 414(b), (c), (m) or (o) of the Internal
Revenue Code. Any individual deemed under Section 414(n) of the Code to be an
employee of any employer described in the previous sentence shall also be
considered an Employee.
[ ] (c) All Employees of the Employer maintaining the Plan compensated on an hourly basis.
[ ] (d) All Employees of the Employer maintaining the Plan compensated on a salaried basis.
[ ] (e) All Employees of the Employer maintaining the Plan not eligible to participate in
another qualified pension or profit sharing plan to which the Employer is making
contributions.
[ ] (f) All Employees of the Employer maintaining the Plan except Employees included in a
unit of Employees covered by a collective bargaining agreement between the Employer
and Employee representatives, if retirement benefits were the subject of good faith
bargaining and if less than two percent of the Employees of the Employer who are
covered pursuant to that agreement are professionals as defined in Section
1.410(b)-9(g) of the proposed Regulations. For this purpose, the term "employee
representative" does not include any organization more than half of whose members
are Employees who are owners, officers or executives of the Employer.
[ ] (g) All Employees of the Employer maintaining the Plan covered by a collective
bargaining agreement between the Employer and Employee representatives (as
described above).
[ ] (h) All Employees of the Employer maintaining the Plan except Employees who are
nonresident aliens (within the meaning of Code Section 7701(b)(1)(B)) and who
receive no earned income (within the meaning of Code Section 911(d)(2)) from the
Employer which constitutes income from sources within the United States (within the
meaning of Code Section 861(a)(3)).
[X] (i) Other Employee classification (specify): ALL EMPLOYEES OF THE EMPLOYER MAINTAINING
THE PLAN, INCLUDING 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(M)(5) AND SUCH LEASED EMPLOYEES DO NOT CONSTITUTE MORE THAN TWENTY
PERCENT (20%) OF THE EMPLOYER'S NON-HIGHLY COMPENSATED WORK FORCE.
- ------------------------------------------------------------------------------------------------------------------------------------
Section 3.02(2) (a) Age and Service Requirements. To become a Participant in the Plan, an eligible Employee must
PARTICIPATION satisfy the following Age and Service Requirements:
REQUIREMENTS
(Age and Service) (i) Age Requirement.
-4-
</TABLE>
<PAGE> 6
<TABLE>
<S> <C> <C>
[ ] (A) No Age Requirement.
[X] (B) The Employee has attained Age 21 (not more than 21 unless (b)(i) below has been
elected and then not more than 20 1/2).
(ii) Service Requirement.
[ ] (A) No Service Requirement.
[X] (B) The Employee has completed 1 Year of Service (not more than 1 unless (b)(i) below
has been elected and then not more than 1/2).
(iii) Special Age and Service Requirements for Participating in 401(a) Employer and/or
401(k) Employer Contribution Allocations, Match Contributions and Forfeitures.
[ ] (A) The requirements of this Subsection (iii) are not applicable, as the Plan only
permits Salary Savings Contributions.
[X] (B) The requirements of this Subsection (iii) apply to participation in (Check all the
applicable boxes below):
[X] (1) The allocation of 401(a) Employer Contributions and forfeitures.
[X] (2) The allocation of 401(a) Employer Match Contributions (including forfeitures
allocated as matching contributions).
[ ] (3) The allocation of 401(k) Employer Match Contributions (including forfeitures
allocated as matching contributions).
[X] (4) The allocation of 401(k) Employer Contributions.
(C) For participation in the allocations described in (B), the Age and Service
Requirements are (Check (1) or check and complete (2) and (3)):
[X] (1) The same Age and Service Requirements elected in (i) and (ii) above (i.e.,
the same Age and Service Requirements applicable to the Salary Savings Plan).
[ ] (2) Age Requirement. The Employee has attained Age ___ (not more than 21
unless (b)(i) below has been elected and then not more than 20 1/2).
[ ] (3) Service Requirement. The Employee has completed ____ Year(s) of Service (if
(b)(i) below is not elected: not more than 1 unless Section 13.01(1)(a)(i)
(100% full and immediate vesting) has been elected and then not more than
2; if (b)(i) below is elected: not more than 1/2 unless Section
13.01(1)(a)(i) has been elected and then not more than 1 1/2).
(iv) Application of Age and Service Requirements.
(A) The Age Requirements of Subsections (a)(i) and (a)(iii)(C)(2) shall not apply
to Employees employed by the Employer:
[ ] (1) on the Plan Effective Date specified in Subsection 6(a) of the
Adoption Agreement
[ ] (2) on the Plan Restatement Date specified in Subsection 6(b) of the
Adoption Agreement
[ ] (3) on ________________________ (insert applicable date)
(B) The Service Requirements of Subsections (a)(ii) and (a)(iii)(C)(3) shall not
apply to
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Employees employed by the Employer:
[ ] (1) on the Plan Effective Date specified in Subsection 6(a) of the
Adoption Agreement
[ ] (2) on the Plan Restatement Date specified in Subsection 6(b) of the
Adoption Agreement
[ ] (3) on _________________________ (insert applicable date)
NOTE: If the Year(s) of Service elected in (a)(ii) or (iii)(C)(3) above is or
includes a fractional year, an Employee shall not be required to complete any
specified number of Hours of Service to receive credit for such fractional
Year.
(Date of
Participation) (b) Plan Entry Date. An eligible Employee who satisfies the Plan Age and Service Requirements
will become a Plan Participant (and, if applicable, will participate in the allocations
described in Subsection (a)(iii)) on the Entry Date elected below, if he is then employed:
[ ] (i) Single Entry Date. The Plan Anniversary coincident with or next following the
date the Plan Age and Service Requirements have been met.
[ ] (ii) Single Entry Date - Retroactive Participation. The Plan Anniversary
coincident with or immediately preceding the date the Plan Age and Service
Requirements have been met.
EMPLOYEES ENTER ON [ ] (iii) Semi-annual Entry Dates. Whichever of the following dates first occurs coincident with or
APRIL 1 AND OCTOBER 1. next following the date the Plan Age and Service Requirements have been met:
(A) the following Plan Anniversary; or
(B) the date 6 months following the Effective Date or thereafter the date six
months following each Plan Anniversary.
[X] (iv) Daily, Monthly or Quarterly Entry Dates.
[ ] (A) the day on which
[ ] (B) the first day of the month coincident with or next following the date
[X] (C) the first day of the
[ ] Plan Quarter [X] Calendar Quarter
[ ] _____________________________ (other quarterly Entry Date)
coincident with or next following the date
the Plan Age and Service Requirements have been met.
Notwithstanding (a) and (b) above, an eligible Employee who satisfies the Plan Age and Service
requirements on the Effective Date and who complies with the requirements set forth in the Plan and
Trust will become a Participant on such date, if he is then employed.
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Section 3.02(3) In determining when an Employee is eligible to participate, the following periods of Service
PARTICIPATION shall be disregarded (Check (a), (b) or (c)):
REQUIREMENTS
(Service [X] (a) None - All prior Service counts.
Exclusions)
[ ] (b) In the case of a Participant who does not have any nonforfeitable right to an Accrued
Benefit
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derived from Employer contributions, Years of Service before a period of consecutive One Year
Breaks in Service will not be taken into account in computing eligibility service if the number of
consecutive One Year Breaks in Service in such period equals or exceeds the greater of five or the
aggregate number of Years of Service. Such aggregate number of Years of Service will not include
any Years of Service disregarded under the preceding sentence by reason of prior Breaks in Service.
If a Participant's Years of Service are disregarded pursuant to the preceding paragraph,
such Participant will be treated as a new Employee for eligibility purposes. If a
Participant's Years of Service may not be disregarded pursuant to the preceding paragraph,
such Participant shall continue to participate in the Plan, or, if terminated, shall
participate immediately upon reemployment.
[ ] (c) If an Employee had a One Year Break in Service before he had become a Participant,
Service before the Break shall not be counted (applicable only if the Plan provides
full and immediate vesting, i.e., when Section 13.01(1)(a)(i) of the Adoption Agreement
is checked).
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Section 4.01 Complete (1), (2) and (3) below:
401(a)
EMPLOYER (1) 401(a) Employer Contributions (Check or complete (a), (b) or (c) and, if applicable, (d) and
CONTRIBUTIONS, (e) below):
401(k) [ ] (a) The Employer does not intend to make 401(a) Employer Contributions.
EMPLOYER
CONTRIBUTIONS, [X] (b) For each Plan Year the Board of Directors or other governing authority of the Employer shall
determine the amount of 401(a) Employer Contributions.
401(a) and 401(k)
EMPLOYER [ ] (c) For each Plan Year the Board of Directors or other governing authority of the Employer
MATCH shall determine the amount of 401(a) Employer Contributions. However, if no resolve is
CONTRIBUTIONS made, the amount contributed shall be ___ % of each Participant's Plan Compensation
for such Plan Year.
* (d) (i) In order to share in 401(a) Employer Contributions for a Plan Year, a Participant must
complete 1,000 (0-1,000) Hours of Service during such Plan Year.
(ii) A Participant whose employment is terminated before the end of a Plan Year but after
he has completed the Hours of Service specified in (d)(i) above (Check (A) or (B)
below):
[ ] (A) shall share in 401(a) Employer Contributions for such Plan Year.
[X] (B) shall not share in 401(a) Employer Contributions for such Plan Year unless
termination is due to (Check whichever of the following is applicable):
[ ] no exceptions [X] death
[X] disability [X] Early, Normal or Late Retirement
[X] (e) Profits [ ] are [X] are not required for 401(a) Employer Contributions.
(2) 401(k) Employer Contributions (Check or complete (a), (b) or (c) and, if applicable, (d) and
(e) below:
[ ] (a) The Employer does not intend to make 401(k) Employer Contributions.
[X] (b) For each Plan Year the Board of Directors or other governing authority of the Employer
shall determine the amount of 401(k) Employer Contributions.
[ ] (c) For each Plan Year the Board of Directors or other governing authority of the Employer
shall determine the amount of 401(k) Employer Contributions. However, if no resolve is
made, the amount contributed shall be ___ % of each Participant's Plan Compensation
for such Plan Year.
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* (d) (i) In order to share in 401(k) Employer Contributions for a Plan Year, a Participant must
complete ____________ (0-1,000) Hours of Service during such Plan Year.
(ii) A Participant whose employment is terminated before the end of a Plan Year but after
he has completed the Hours of Service specified in (d)(i) above (Check (A) or (B)
below):
[ ] (A) shall share in 401(k) Employer Contributions for such Plan Year.
[ ] (B) shall not share in 401(k) Employer Contributions for such Plan Year unless
termination is due to (Check whichever of the following is applicable):
[ ] no exceptions [ ] death
[ ] disability [ ] Early, Normal or Late Retirement
(e) Profits [ ] are [ ] are not required for 401(k) Employer Contributions.
(3) Employer Match Contributions (Check or complete (a), (b) or (c), and, if applicable, (d), (e)
and (f) below):
[ ] (a) The Employer does not intend to make Employer Match Contributions.
[X] (b) For each Plan Year the Board of Directors or other governing authority of the Employer
shall determine a percentage(s) to contribute of each eligible Participant's Salary
Savings Contributions.
[ ] However, in no event shall Employer Match Contributions exceed ____% of each eligible
Participant's Salary Savings Contributions.
[ ] (c) For each Plan Year the Board of Directors or other governing authority of the Employer
shall determine a percentage(s) to contribute of each eligible Participant's Salary
Savings Contributions; however, if no resolve is made, the amount contributed shall be
___ % of each eligible Participant's Salary Savings Contributions but not in excess of
(Check and complete (i), (ii) or (iii) or (i) or (ii) and (iii) below, if applicable):
[ ] (i) ___ % of Compensation
[ ] (ii) ___ % of Salary Savings Contributions
[ ] (iii) $ _______________
QUARTER
* (d) (i) In order to share in Employer Match Contributions for a Plan Year, a Participant must
complete 0 (0-1,000) Hours of Service during such Plan Year. QUARTER
QUARTER
(ii) A Participant whose employment is terminated before the end of a Plan Year but
after he has completed the Hours of Service specified in (d)(i) above (Check (A) or
(B) below):
QUARTER
[ ] (A) shall share in Employer Match Contributions for such Plan Year.
QUARTER
[X] (B) shall not share in Employer Match Contributions for such Plan Year unless
termination is due to (Check whichever of the following is applicable):
[ ] no exceptions [X] death
[X] disability [X] Early, Normal or Late Retirement
(e) Profits [ ] are [X] are not required for Employer Match Contributions.
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(f) Employer Match Contributions shall be allocated by the Trustee to a Participant's (Check (i)
or (ii) below, whichever is applicable):
[ ] (i) 401(k) Employer Match Contributions Account, and thus shall be 100% vested and
nonforfeitable when made.
[X] (ii) 401(a) Employer Match Contributions Account, and thus shall be subject to the
Match Contribution vesting schedule elected by the Employer in Section
13.01(1).
*NOTE: When Contributions are allocated monthly, for administrative convenience it is recommended
that all Options (d)(i) be completed with "0" and Options (d)(ii)(A) be selected.
Note to Section 4.01: Employer Match and 401(k) Employer Contributions may be reduced to comply
with the Average Deferral and Average Contribution Percentage Tests of Code Sections 401(k) and
401(m). (See Articles VII and IX of the Plan).
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Section 4.02 If the Employer maintains one or more qualified retirement plans in addition to this Plan and if
TOP HEAVY this Plan is or becomes a Top Heavy or Super Top Heavy Plan, the minimum allocation or
PLAN MINIMUM benefit applicable to Non-Key Employees participating in this Plan will be met (Check (a) or (b)
BENEFITS FOR below):
EMPLOYERS
WITH MULTIPLE
PLANS [X] (a) pursuant to the provisions of Subsection 4.02(e) of the Plan.
[ ] (b) under the Employer's other plan or plans.
- ------------------------------------------------------------------------------------------------------------------------------------
Section 4.03 For each Plan Year, Participants may direct the Employer to reduce their Compensation in
SALARY order that the Employer may make Salary Savings Contributions, subject to the following
SAVINGS (Complete (a), (b) and (c) below):
CONTRIBUTION
[X] (a) Minimum Salary Savings Contribution permitted:
[X] (i) no minimum
[ ] (ii) other (specify amount or percentage and period):
________________________________________________________________________
________________________________________________________________________
[X] (b) Maximum Salary Savings Contribution permitted (if any): 15 % of Compensation (not more
than $7,000, or such other amount as is designated by the Secretary of the Treasury as
the limit for the Participant's taxable year under Code Section 402(g)).
[X] (c) Changes in Savings Amount:
[ ] (i) no limit on frequency
[X] (ii) limited to (specify): PLAN ENTRY DATES: JANUARY 1, APRIL 1, JULY 1 AND OCTOBER 1.
(at least once every calendar year)
NOTE: The Plan Administrator may limit Salary Savings Contributions if required to comply with
Code Section 401(k).
- ------------------------------------------------------------------------------------------------------------------------------------
Section 4.04 Voluntary After-Tax Contributions (Check (a) or (b) and, if applicable, (c) and (d)):
VOLUNTARY
AFTER-TAX [ ] (a) are not permitted.
CONTRIBUTIONS
[X] (b) are permitted.
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[ ] (c) minimum permitted (Check and complete, if applicable):
[ ] (i) no minimum
[ ] (ii) ___ % of annual total Compensation
[ ] (iii) $___ per___________ (week, month, year)
[X] (d) will be maintained and accounted for in
[X] (i) one After-Tax Contribution Account.
[ ] (ii) two After-Tax Contribution Accounts, one for Contributions made before 1987
and one for Contributions made after 1986.
NOTE: The maximum a Participant may contribute to the Plan on a voluntary basis is specified in
Section 4.04 of the Plan, and may be limited to comply with Code Section 401(m).
- ------------------------------------------------------------------------------------------------------------------------------------
Section 5.02 Allocation formula (Choose (a) or (b) below):
METHOD OF
ALLOCATING [X] (a) Non-Integrated Allocation Formula:
401(a) EMPLOYER
CONTRIBUTIONS After any minimum contributions have been allocated to the Accounts of Non-Key Employees
pursuant to Section 4.02 of the Plan, any additional 401(a) Employer Contributions for each
Plan Year shall be allocated among the Accounts of eligible Participants in amounts
determined in accordance with the ratio which each eligible Participant's Plan Compensation
bears to the total Plan Compensation of all Participants eligible to share in 401(a)
Employer Contributions for such Plan Year.
[ ] (b) Integrated Allocation Formulas:
For Plan Years beginning in 1989 and thereafter, 401(a) Employer Contributions contributed
to the Trust for each Plan Year shall be allocated among the Accounts of eligible
Participants according to the formula elected below:
[ ] (i) Three-Tiered Integrated Allocation Formula
STEP ONE: First, for any Plan Year the Plan is a Top Heavy Plan, 401(a) Employer
Contributions will be allocated among the Accounts of all eligible Participants in
the ratio that each Participant's total Compensation bears to the sum of all
eligible Participants' total Compensation, but not in excess of the top heavy
minimum contribution to be made to the Accounts of Non-Key Employees pursuant to
Section 4.02 of the Plan.
STEP TWO: Any such Contributions remaining after any allocation in Step One will
be allocated to the Account of each eligible Participant in the ratio that the sum
of each eligible Participant's total Compensation and Compensation in excess of the
Plan Integration Level bears to the sum of all eligible Participant's total
Compensation and Compensation in excess of the Plan Integration Level, but not in
excess of the Maximum Disparity Rate.
STEP THREE: Any such remaining 401(a) Employer Contributions will be allocated to
the Account of each eligible Participant in the ratio that each eligible
Participant's total Compensation bears to the sum of all eligible Participants'
total Compensation for that Plan Year.
[ ] (ii) Four-Tiered Integrated Allocation Formula
STEP ONE: First, for any Plan Year in which the Plan is a Top Heavy Plan to which
a minimum Employer contribution is to be made pursuant to Section 4.02 of the Plan,
that portion of the 401(a) Employer Contributions which does not exceed 3% of the
total Compensation of all eligible Participants (including, solely for purposes of
this STEP ONE
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allocation, Non-Key Employees entitled to a minimum contribution pursuant to Subsection
4.02(d) of the Plan) shall be allocated among the accounts of such Participants and
Non-Key Employees in the ratio that each such Participant's and Non-Key Employee's total
Compensation bears to the total Compensation of all such Participants and Non-Key
Employees.
STEP TWO: For any Plan Year in which this Plan is a Top Heavy Plan to which a
minimum Employer Contribution is to be made pursuant to Section 4.02 of the Plan,
that portion of the 401(a) Employer Contributions which remains after allocations
have been made pursuant to STEP ONE, if any, which does not exceed 3% of the total
Compensation of all eligible Participants in excess of the Plan Integration Level
shall be allocated among the Accounts of such Participants in the ratio that each
Participant's Compensation in excess of the Plan Integration Level bears to the sum
of all eligible Participants' Compensation in excess of the Plan Integration Level.
STEP THREE: That portion of the 401(a) Employer Contributions which remains after
allocations have been made pursuant to STEP TWO, if any, will be allocated to each
eligible Participant's Account in the ratio that the sum of each Participant's
total Compensation and Compensation in excess of the Plan Integration Level bears
to the sum of all eligible Participants' total Compensation and Compensation in
excess of the Plan Integration Level, but not in excess of:
(a) in any Plan Year in which the Plan is a Top Heavy Plan to which a minimum
Employer Contribution is to be made pursuant to Section 4.02 of the Plan: The
percentage determined by subtracting from the Maximum Disparity Rate the
percentage contributed pursuant to STEP ONE; or
(b) in any other Plan Year: the Maximum Disparity Rate.
STEP FOUR: Any remaining 401(a) Employer Contributions will be allocated to the
Account of each eligible Participant in the ratio that each eligible Participant's
total Compensation bears to the sum of all eligible Participants' total
Compensation for that Plan Year.
(iii) The Plan Integration Level is (Check and complete one):
[ ] (1) the Taxable Wage Base
[ ] (2) $_______ (a dollar amount less than the Taxable Wage Base)
[ ] (3) ___ % (not to exceed 100%) of the Taxable Wage Base
The Plan Maximum Disparity Rate shall be determined from the following Table.
The Plan Integration Level Plan Maximum Disparity Rate
-------------------------- ---------------------------
(1) The Taxable Wage Base (TWB) 5.7%
(2) More than 80% but less than 5.4%
100% of the TWB
(3) Not more than 80% of the TWB 4.3%
but greater than both 20% of
the TWB and $10,000
(4) Not more than the greater of 5.7%
20% of the TWB and $10,000
NOTE: All references to the Taxable Wage Base are to the Base in effect at the beginning
of the Plan Year.
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NOTE: In no event will the amount allocated to a Participant's Account exceed the maximum
permitted under Article VII of the Plan.
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Section 5.03 Amounts forfeited for each Plan Year shall be applied as follows (Check one):
METHOD OF
ALLOCATING [X] (a) Forfeitures shall be allocated per the same method as Employer contributions are allocated for the
PLAN Plan Year in which the forfeiture occurs.
FORFEITURES
[ ] (b) Forfeitures shall be applied to reduce Employer contributions or to pay Plan
administrative expenses for the Plan Year following the Plan Year in which the forfeiture
occurs.
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Section 6.01(b) Once a Plan becomes a Top Heavy Plan, the Top Heavy Plan minimum contribution requirements set
TOP HEAVY forth in Section 4.02 of the Plan [ ] shall [X] shall not be applicable in all subsequent Plan Years,
PLAN ELECTION regardless of whether such years are Top Heavy Plan Years.
- ------------------------------------------------------------------------------------------------------------------------------------
Section 6.02(g) For purposes of computing the top heavy ratio described in Section 6.02 of the Plan, the valuation
TOP HEAVY date shall be (Check or complete one of the following):
VALUATION
DATE [ ] (a) the last day of the Plan Year.
[X] (b) other (specify): THE LAST DAY OF THE PLAN YEAR OR AT ANY TIME AS DETERMINED BY THE
"TRUSTEE."
- ------------------------------------------------------------------------------------------------------------------------------------
Section 6.02(h) For purposes of establishing the present value to compute the top heavy ratio described in Section 6.02
TOP HEAVY of the Plan, any benefit shall be discounted only for mortality and interest based on the following
PLAN PRESENT (Check or complete one):
VALUES
[X] (a) 1971 Group Annuity Mortality Table, unprojected for post-retirement mortality, no pre-
retirement withdrawal and 5% annual interest rate.
[ ] (b) other (specify): _________________________________________________________________________________
__________________________________________________________________________________________________
- ------------------------------------------------------------------------------------------------------------------------------------
Article VII If the Employer maintains or ever maintained another qualified plan other than a Master or
LIMITATIONS Prototype Plan in which any participant in this Plan is (or was) a Participant or could possibly
ON become a Participant, the Employer must complete paragraphs 2 and 3 below, as appropriate.
ALLOCATIONS The Employer must also complete paragraph 2 below if it maintains a welfare benefit fund, as
defined in Section 419(e) of the Code, or an individual medical account, as defined in Section
415(1)(2) of the Code, under which amounts are treated as Annual Additions with respect to any
Participant in this Plan.
[X] 1. The Employer neither maintains nor ever maintained another qualified plan other than a
Master or Prototype Plan in which any Participant in this Plan is (or was) a Participant or
could possibly become a Participant.
(Other Defined [ ] 2. If the Participant is covered under another qualified defined contribution plan maintained
Contribution by the Employer, other than a Master or Prototype Plan:
Plans)
[ ] (i) The determination of the maximum permissible contribution under the OTHER defined
contribution plan shall be made only after crediting a Participant with his Annual
Addition for a Limitation Year under THIS defined contribution plan.
[ ] (ii) The determination of the maximum permissible contribution under THIS defined contribution
plan shall be made only after crediting a Participant with his Annual Addition under the
OTHER defined contribution plan.
[ ] (iii) Other (specify): ______________________________________________________________________________
__________________________________________________________________________________________________
__________________________________________________________________________________________________
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(Other Defined [ ] 3. If the Participant is or has ever been a Participant in a defined benefit plan maintained by
Benefit Plans) the Employer, the adopting Employer must provide language which will satisfy the 1.0
limitation of Section 415(e) of the Internal Revenue Code. Such language must preclude
employer discretion. (See Section 1.415-1 of the Income Tax Regulations for guidance).
[ ] (i) The determination of the maximum permissible contribution under any defined contribution
plan shall be made only after crediting a Participant with his earned benefit for a
Limitation Year under any defined benefit plan in which he is also participating.
[ ] (ii) Other (specify): ________________________________________________________________________________
__________________________________________________________________________________________________
__________________________________________________________________________________________________
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Section 10.01 In-service withdrawals by a Participant of amounts in his Rollover Account (Check (a), (b) or (c)):
IN-SERVICE
WITHDRAWAL [ ] (a) are not permitted.
OF
ROLLOVER [X] (b) are permitted at any time.
CONTRIBUTIONS
[ ] (c) are permitted at any time after the Participant attains Age 59 1/2.
NOTE: Rollover Account in-service withdrawals are subject to Sections 10.03 and 18.01 of the Plan.
- ------------------------------------------------------------------------------------------------------------------------------------
Section 10.02 In-service withdrawals by the Participant of vested amounts in his Accounts elected below are permitted
IN-SERVICE for any reason after the Participant attains age 59 1/2 (Check all applicable boxes):
AND HARDSHIP
WITHDRAWALS [ ] (a) In-service withdrawals of Contributions described in (b) through (f) below are not
permitted.
[X] (b) 401(a) Employer Contribution Account
[X] (c) 401(a) Employer Match Contribution Account
[X] (d) Salary Savings Contribution Account
[ ] (e) 401(k) Employer Contribution Account
[ ] (f) 401(k) Employer Match Contribution Account
"Hardship withdrawals" (as described in Section 10.02 of the Plan) of Salary Savings Contributions
(and earnings thereon accrued as of December 31, 1988) (Check one):
[ ] (a) are not permitted.
[X] (b) are permitted.
NOTE: In-service withdrawals are subject to Section 10.03 of the Plan.
- ------------------------------------------------------------------------------------------------------------------------------------
Section 11.01 Participant Loans (Check whichever of the following is applicable):
PLAN
LOANS [ ] (a) are not permitted.
[X] (b) are permitted in accordance with Article XI, subject to the following limitations:
[ ] (i) no minimum
[X] (ii) each loan being in a minimum amount of $ 500 (cannot exceed $1,000)
[ ] (iii) each loan being in a minimum amount of $1,000
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[X] (iv) only one loan may be outstanding at any time
[ ] (v) only one loan may be made each Plan Year
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Section 12.02 Check and complete one of the below, and any applicable subparts:
EARLY
RETIREMENT [X] (a) There is no Early Retirement Age.
AGE
(if any) [ ] (b) The Early Retirement Age of a Participant shall be the first day of any month selected by
the Participant coincident with or next following the date he satisfies the following
requirements (Check and complete the applicable requirements set forth below):
[ ] attainment of Age __________
[ ] completion of _______ Years of Service
[ ] completion of ______ Years of Plan participation
[ ] termination of employment within _____ years of Normal Retirement Age
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Section 12.07 (a) For benefits not subject to Section 12.08 of the Plan (Joint and Survivor Annuity
BENEFIT requirements), Participants shall have the right to receive their vested Accrued Benefit in
OPTIONS accordance with Section 12.07 of the Plan (Check (i) or (ii)):
[ ] (i) in one sum or installment or annuity payments; or
*[X] (ii) in one sum only.
(b) If the Plan invests in Qualifying Employer Securities, as that term is defined in ERISA
Section 407(d)(5), then the Plan may provide for distributions in Employer stock pursuant
to the terms of the Addendum to this Section 12.07(b), describing the procedures applicable
to such distributions, prepared by the Plan's legal counsel, attached to this Adoption
Agreement and incorporated herein by reference (Check one):
[ ] (i) Distributions may not be made in Employer stock; or
[X] (ii) Distributions may be made in Employer stock pursuant to the terms of the
Addendum to this Section 12.07(b) prepared by the Plan's legal counsel,
attached hereto, and incorporated herein by reference.
*NOTE: An election of (a)(ii) above will be given effect only to the extent the requirements of
Code Sections 411(d)(6) and 401(a)(4) are met.
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Section 13.01(1) (a) A Participant's 401(a) Employer Contributions, if any, shall be vested to the extent
VESTING designated below (Check or complete one of (i) through (v)):
SCHEDULES
[ ] (i) 100% at all times.
[ ] (ii) 100% after ________ (1 to 5) Years of Service.
[ ] (iii) A percentage determined in accordance with the following schedule (3-7 Vesting):
Nonforfeitable
Years of Service Percentage
---------------- --------------
less than 3 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
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[ ] (iv) A percentage determined in accordance with the following schedule (Top Heavy
Graded Vesting):
Nonforfeitable
Years of Service Percentage
---------------- --------------
less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
[X] (v) Other LESS THAN 2 YEARS = 0%; 2 YEARS = 25%; 3 YEARS = 50%; 4 YEARS = 75%;
5 YEARS = 100%. ________________________________ with full vesting after completion
of 5 Years of Service (not to exceed 5).
(b) A Participant's 401(a) Employer Match Contributions, if any, shall be vested to the extent
designated below (Check or complete one of (i) through (v)):
[ ] (i) 100% at all times
[ ] (ii) 100% after _____ (1 to 5) Years of Service
[ ] (iii) A percentage determined in accordance with the following schedule (3-7 Vesting):
Nonforfeitable
Years of Service Percentage
---------------- --------------
less than 3 0%
3 20%
4 40%
5 60%
6 80%
7 or more 100%
[ ] (iv) A percentage determined in accordance with the following schedule (Top Heavy
Graded Vesting):
Nonforfeitable
Years of Service Percentage
---------------- --------------
less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
[X] (v) Other LESS THAN 2 YEARS = 0%; 2 YEARS = 25%; 3 YEARS = 50%; 4 YEARS = 75%;
5 YEARS = 100%. ________________________________________ with full vesting
after completion of 5 Years of Service (not to exceed 5).
NOTE: Notwithstanding the above, in any event a Participant's vesting percentage shall be 100% on
the date he attains his Normal Retirement Age, or, if earlier, on the date he attains his
Early Retirement Age.
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Section 13.01(2) Notwithstanding anything in Section 13.01(1) of the Adoption Agreement to the contrary, if the TOP
HEAVY Plan is a Top Heavy Plan for any Plan Year beginning after December 31, 1983, then the Plan
PLAN VESTING shall meet the following vesting requirements for such Plan Year and for all subsequent Plan Years,
even if the Plan is not a Top Heavy Plan for such subsequent Plan Years. Provided, however, if the
vesting schedule elected in Section 13.01(1) of the Adoption Agreement is more favorable to a
Participant, such schedule shall be applicable to such Participant for such Plan Years.
A Participant's 401(a) Employer and 401(a) Employer Match Contributions shall be vested to the
extent designated below (Check or complete (a) or (b)):
[ ] (a) 100% after ______ (1 to 3) Years of Service.
[ ] (b) A percentage determined in accordance with the following schedule:
Nonforfeitable
Years of Service Percentage
---------------- --------------
less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
- ------------------------------------------------------------------------------------------------------------------------------------
Section 13.01(3) In determining a Participant's Vesting Percentage, the following periods of Service shall be
VESTING disregarded (Check the first box if all Years of Service are to be counted. Otherwise, check one or
(Service more of the other boxes):
Exclusions)
[ ] (a) All Years of Service are to be counted.
[ ] (b) Years of Service before Age 18.
[X] (c) Period during which the Plan or a predecessor plan was not maintained by the Employer.
[ ] (d) If a Participant has a One Year Break in Service, Service before the Break shall not be
taken into account until he has completed a Year of Service after such Break in Service.
[ ] (e) In the case of a Participant who has 5 or more consecutive One Year Breaks in Service,
the Participant's pre-break service will count in vesting of the Employer-derived Accrued
Benefit only if either:
(i) such Participant has any nonforfeitable interest in the Accrued Benefit attributable to
Employer contributions at the time of separation from service, or
(ii) upon returning to service the number of consecutive One Year Breaks in Service is
less than the number of Years of Service.
[ ] (f) Years of Service before January 1, 1971, unless the Employee has had at least 3 Years of
Service after December 31, 1970.
[ ] (g) Years of Service before the Plan Year in which Internal Revenue Code Section 411 became
applicable to the Plan, if such Service would have been disregarded under the rules of
the Plan with regard to Breaks in Service as in effect on the applicable date. For this
purpose, Break in Service rules are rules which result in the loss of prior vesting or
benefit accruals, or which deny an employee eligibility to participate, by reason of
separation or failure to complete a required period of service within a specified period
of time.
NOTE: In all events Years of Service during which the Employee did not complete at least 1,000
Hours of Service shall be disregarded.
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<PAGE> 18
<TABLE>
<S> <C> <C> <C>
Section 13.02(1) Employees terminating Service and having a vested Accrued Benefit of $3,500 or less shall (Check one):
PAYMENT
OF ACCRUED [X] (a) receive a lump sum distribution of such vested portion.
BENEFITS OF
$3,500 OR LESS [ ] (b) have their vested benefit deferred in accordance with Section 13.02(2) below.
- ------------------------------------------------------------------------------------------------------------------------------------
Section 13.02(2) A terminated Participant (or his Beneficiary) may request that the Participant's deferred Normal Retirement
DISTRIBUTION Benefit be distributed (Check one of the following):
OF
DEFERRED [ ] (a) at any time after the date the Participant terminates employment with the Employer.
NORMAL
RETIREMENT [ ] (b) no earlier than the earliest of the terminated Participant's death, Total and Permanent
Disability or
BENEFIT attainment of Early Retirement or Normal Retirement Age.
[ ] (c) if earlier than (b) above, at any time after the end of the Plan Year in which the
Participant terminated employment with the Employer.
[ ] (d) if earlier than (b) above, at any time after the end of the ___________ Plan Year
following the Plan Year in which the Participant terminated employment with the
Employer.
[X] (e) if earlier than (b) above, AS OF THE END OF THE PLAN QUARTER FOLLOWING TERMINATION OF
SERVICE. ____________________________________________________________________________
____________________________________________________ (specify the time when or other
objective criteria under which a Participant may request a distribution of his deferred
Normal Retirement Benefit).
NOTE: Employers may not eliminate or restrict the availability of distribution options except
in accordance with Code Sections 401(a)(4) and 411(d)(6) and Rules and Regulations
promulgated thereunder.
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Sections 15.01 Investment Direction (Check one):
and 15.04
INVESTMENTS Except as provided below in Section 15.05,
DIRECTED BY
EMPLOYER OR [ ] (a) the Employer; or
INVESTMENT
MANAGER [ ] (b) an Investment Manager appointed by the Employer
shall direct the Trustee to make the investments under the Plan.
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Section 15.03 Pursuant to Section 15.03(u) of the Plan, the Plan may invest in Qualifying Employer Securities, as
INVESTMENTS IN that term is defined in ERISA Section 407(d)(5), pursuant to the applicable requirements of ERISA
QUALIFYING and the Code, as amended from time to time, including the regulations promulgated thereunder. The
EMPLOYER aggregate investments in Qualifying Employer Securities may not exceed the following limits (Check one):
SECURITIES
[ ] (a) may not exceed 10% of the Plan's assets; or
[X] (b) may not exceed 95 % of the Plan's assets (percentage may equal 100% of the Plan's assets).
- ------------------------------------------------------------------------------------------------------------------------------------
Section 15.05 Participant Investment Direction (Check one):
PARTICIPANT
DIRECTED [ ] (a) Participant investment direction is not permitted.
INVESTMENTS
[X] (b) Participants shall have the power, at their discretion, to direct the Trustee to invest
all or a portion of their Accounts in any of the investment options offered under the
Plan and, in addition, if life insurance is offered as a permissible investment, under
any investment fund option offered under any Policy purchased for their Accounts.
[X] Exception: Participants shall not have the power to direct the investment of the
portion of their Accrued Benefit attributable to 401(a) Employer
Contributions and 401(a) Employer Match Contributions.
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<PAGE> 19
<TABLE>
<S> <C> <C> <C> <C>
EXECUTION AND ACCEPTANCE
BY
EMPLOYER AND TRUSTEE(S)
BANK ONE PROTOTYPE RETIREMENT PLAN NO. 1
The Employer, which hereby agrees that the Trustee shall not be responsible for the tax and legal aspects of the Plan
and Trust, and which assumes full responsibility therefor, hereby accepts the provisions of Bank One Prototype
Retirement Plan No. 1, agrees to be bound by the provisions thereof, and adopts such Plan and the Plan Adoption
Agreement by causing its name to be signed hereto by its duly authorized officer, all as of this _______ day of
___________, 19__.
The failure of the adopting Employer to properly fill out the Adoption Agreement may result in disqualification of the
Employer's Plan.
The adopting Employer may not rely on an opinion letter issued by the National Office of the Internal Revenue Service as
evidence that the Plan is qualified under Section 401 of the Internal Revenue Code. In order to obtain reliance with
respect to Plan qualification, the Employer must apply to the appropriate Key District office for a determination
letter.
Bank One, the sponsor of this Prototype Plan, will inform each adopting Employer which has registered with Bank One of
any amendments it makes to the Plan or of the discontinuance or abandonment of the Plan. Bank One's address and
telephone number are listed below:
Address: [ ] Bank One, Indianpolis, N.A. [X] Bank One, Texas, N.A
d/b/a Bank One Trust Group d/b/a Bank One Trust Group
111 Monument Circle P.O. Box 2050
Indianapolis, IN 46277 Fort Worth, TX 76113
Telephone: (317) 321-8177 (817) 884-4000
The Adoption Agreement may be used only in conjunction with Basic Plan Document No. 01.
This Adoption Agreement, Basic Plan Document No. 1 and any related documents have important legal and tax implications.
All legal questions, opinions and tax consequences concerning these documents are the sole responsibility of the
adopting Employer and its legal counsel. Therefore, each adopting Employer is strongly encouraged to consult with its
legal counsel for advice.
Employer ____________________________________________________ Employer ________________________________________________
By _________________________________________________ By _____________________________________________
Title: Title:
====================================================================================================================================
The undersigned Trustee, or each undersigned Trustee, hereby accepts the provisions of Bank One Prototype Retirement
Plan No. 1 and the trusts provided for therein, and hereby declares, and agrees with the aforesaid Employer to receive,
hold, invest, expend and distribute all funds deposited with, contributed to, earned or otherwise received by, the
Trustee or Trustees, all in accordance with the terms and provisions of said Plan and Trust.
_____________________________________________________________ Date ___________________________________________________
Name ________________________________________________________
Title (if any) ______________________________________________
_____________________________________________________________ Date ___________________________________________________
Name ________________________________________________________
Title (if any) ______________________________________________
_____________________________________________________________ Date ___________________________________________________
Name ________________________________________________________
Title (if any) ______________________________________________
-18-
</TABLE>
<PAGE> 20
TABLE OF CONTENTS
BANK ONE TRUST GROUP
PROTOTYPE RETIREMENT PLAN NO. 1
<TABLE>
<CAPTION>
ARTICLE TITLE PAGE
<S> <C> <C>
I NAME, PURPOSE AND EFFECTIVE DATE OF PLAN 1
II DEFINITIONS 1
III PARTICIPATION REQUIREMENTS 14
IV PLAN CONTRIBUTIONS 17
V PARTICIPANT ACCOUNTS, ALLOCATION OF CONTRIBUTIONS
AND VALUATION OF ASSETS 21
VI PROVISIONS APPLICABLE TO TOP HEAVY PLANS 22
VII 415 LIMITATIONS ON ALLOCATIONS 25
VIII 401(k) SALARY SAVINGS CONTRIBUTION LIMITATIONS
AND REFUNDS 31
IX EMPLOYEE CONTRIBUTIONS AND EMPLOYER MATCH
CONTRIBUTIONS - LIMITATIONS,
REFUNDS AND FORFEITURES 35
X IN-SERVICE WITHDRAWALS 38
XI PARTICIPANT LOANS 40
XII RETIREMENT AND DEATH BENEFITS 42
XIII BENEFITS UPON TERMINATION OF SERVICE 57
XIV PLAN FIDUCIARY RESPONSIBILITIES 60
XV TRUSTEE AND TRUST FUND INVESTMENTS 64
XVI THE INSURER 72
XVII LIFE INSURANCE POLICIES 72
XVIII TRANSFER OF ASSETS, ROLLOVER CONTRIBUTIONS 74
XIX CLAIMS PROCEDURE 76
XX AMENDMENT AND TERMINATION 77
XXI MISCELLANEOUS 79
</TABLE>
<PAGE> 21
BANK ONE TRUST GROUP
PROTOTYPE RETIREMENT PLAN NO. 1
Bank One Trust Group ("Bank One") is the sponsor of this Prototype Retirement
Plan, which an Employer may adopt by executing a Plan Adoption Agreement. The
Trustee who is to act as Trustee hereunder shall indicate acceptance of the
provisions of this Plan and Trust upon the page and in the manner provided for
that purpose, whereupon this instrument shall be a valid and binding Plan and
Trust in accordance with its terms and provisions.
ARTICLE I
NAME, PURPOSE AND EFFECTIVE DATE OF PLAN
1.01 This Plan shall be known as Bank One Prototype Retirement Plan No.
1. This Plan is Bank One Basic Plan Document No. 01.
1.02 This Plan and Trust has been established for the exclusive benefit
of the eligible Employees of each Employer and their
Beneficiaries, and as far as possible shall be interpreted and
administered in a manner consistent with this intent and
consistent with the requirements of Code Section 401. If the
Employer's plan fails to attain or retain qualification under Code
Section 401, such plan shall no longer participate under this
Prototype Plan and will be considered an individually designed
plan.
1.03 Subject to Article VII and to Section 20.05, under no
circumstances shall any property of the Trust, or any
contributions made by the Employer under its Plan or Trust, be
used for, or diverted to, purposes other than for the exclusive
benefit of the Employees of such Employer, or their Beneficiaries.
1.04 The Effective Date of this Plan and Trust shall be the date
specified as such in Item 6 of the Adoption Agreement.
ARTICLE II
DEFINITIONS
As used in this Agreement, the following words and phrases shall have the
meanings set forth herein unless a different meaning is clearly required by the
context.
2.01 "Accrued Benefit" means the sum of the balances of the separate
accounts maintained on a Participant's behalf pursuant to Section
5.01.
2.02 "Administrator" means the person or persons designated by the
Employer in Item 10 of the Adoption Agreement to administer the
Plan on behalf of the Employer.
2.03 "Adoption Agreement" means the separate agreement executed by each
Employer adopting the Plan, in which the Employer's selection of
options under the Plan are indicated.
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<PAGE> 22
2.04 "Age" means the age of a person at his last birthday.
2.05 "Beneficiary" means the person, trust, organization or estate
designated to receive Plan benefits payable on or after the death
of a Participant.
2.06 "Compensation" means a Participant's Section 3401(a) wages,
Section 6041/etc. compensation or Section 415 safe-harbor
compensation (as defined below), whichever is elected by the
Employer in Section 2.06 of the Adoption Agreement. For any
Self-Employed Individual covered under the Plan, Compensation will
mean Earned Income. Compensation shall include only that
compensation which is actually paid to the Participant during the
determination period. Except as provided elsewhere in the Plan,
the determination period shall be the period elected by the
Employer in the Adoption Agreement.
(1) Section 3401(a) wages. Wages as defined in Code Section
3401(a) for the purposes of income tax withholding at
the source but determined without regard to any rules
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)).
(2) Section 6041/etc. compensation (Wages, Tips and Other
Compensation Box on Form W-2). Compensation defined as
wages within the meaning of Section 3401(a) of the Code
and all other payments of compensation to the Employee
by the Employer (in the course of the Employer's trade
or business) for which the Employer is required to
furnish the Employee a written statement under Sections
6041(d), 6051(a)(3) and 6052 of the Code, determined
without regard to any rules under Section 3401(a) that
limit the remuneration included in wages based on the
nature or location of the employment or the services
performed.
(3) 415 safe-harbor compensation. Wages, salaries, and fees
for professional services and other amounts received
(without regard to whether or not an amount is paid in
cash) for personal services actually rendered in the
course of employment with the Employer maintaining the
Plan to the extent that the amounts are includible in
gross income (including, but not limited to, commissions
paid salesmen, compensation for services on the basis of
a percentage of profits, commissions on insurance
premiums, tips, bonuses, fringe benefits, and
reimbursements or other expense allowances under a
nonaccountable plan (as described in Section 1.62-2(c)
of the Regulations)), and excluding the following:
(a) Employer contributions to a plan of deferred
compensation which are not includible in the
Employee's gross income for the taxable year in
which contributed, or Employer contributions
under a simplified employee pension plan to the
extent such contributions are deductible by the
Employee, or any distributions from a plan of
deferred compensation;
(b) Amounts realized from the exercise of a
non-qualified stock option, or when restricted
stock (or property) held by the Employee either
becomes freely transferable or is no longer
subject to a substantial risk of forfeiture;
-2-
<PAGE> 23
(c) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified
stock option; and
(d) Other amounts which receive special tax benefits,
or contributions made by the Employer (whether or
not under a salary reduction agreement) towards
the purchase of an annuity contract described in
Section 403(b) of the Code (whether or not the
contributions are actually excludible from the
gross income of the Employee).
Notwithstanding the above, if elected by the Employer in the
Adoption Agreement, Compensation shall include any amount which is
contributed by the Employer on behalf of a Participant pursuant to
a salary reduction agreement and which is not includible in the
gross income of the Participant under Sections 125, 402(e)(3),
402(h) or 403(b) of the Code.
In the case of an incorporated Employer which adopts a
non-standardized plan with a non-integrated allocation formula, if
the Plan is not a Top Heavy Plan, the Employer may specify in
Section 2.06 of the Adoption Agreement that certain items of
Compensation may be disregarded.
Notwithstanding the above, if the Employer is incorporated, for
the first year of Plan participation, Compensation paid prior to
the date the Employee becomes a Participant shall be excluded if
the Employer so specified in Section 2.06 of the Adoption
Agreement.
If so elected by the Employer, Compensation shall be limited to
the dollar amount specified in Section 2.06 of the Adoption
Agreement.
For Plan Years beginning on or after January 1, 1994, the annual
Compensation of each Participant taken into account for
determining all benefits provided under the Plan for any
determination period shall not exceed $150,000. This limitation
shall be adjusted for inflation by the Secretary in multiples of
$10,000 by applying an inflation adjustment factor and rounding
the result down to the next multiple of $10,000 (increases of less
than $10,000 are disregarded). If a Plan determines Compensation
over a period of time that contains fewer than 12 calendar months,
then the annual Compensation limit is an amount equal to the
annual Compensation limit for the calendar year in which the
Compensation period begins multiplied by the ratio obtained by
dividing the number of full months in the period by 12.
In determining the Compensation of a Participant for purposes of
this limitation, the rules of Section 414(q)(6) of the Code shall
apply, except in applying such rules, the term "family" shall
include only the spouse of the Participant and any lineal
descendants of the Participant who have not attained age 19 before
the close of the year. If, as a result of the application of such
rules the adjusted $150,000 limitation is exceeded, then (except
for purposes of determining the portion of Compensation up to the
integration level if this Plan provides for permitted disparity),
the limitation shall be prorated among the affected individuals in
proportion to each such individual's Compensation as determined
under this Section prior to the application of this limitation.
If Compensation for any prior determination period is taken into
account in determining the Employee's contributions or benefits
for the current determination period, the Compensation for such
prior determination period is subject to the applicable annual
Compensation limit in effect
-3-
<PAGE> 24
for that prior period. For this purpose, for years beginning
before January 1, 1990, the applicable annual Compensation limit
is $200,000. For years beginning on or after January 1, 1990, and
before January 1, 1994, the applicable annual compensation limit
is as follows: for 1990, $209,200; for 1991, $222,220; for 1992,
$228,860; and for 1993, $235,840.
For purposes of Articles VIII and IX, Compensation shall also
include amounts attributable to services performed in the given
Plan Year and paid within 2 1/2 months of the given Plan Year or
that would have been paid within such timeframe but for their
contribution as a Salary Savings Contribution within 12 months of
the given Plan Year.
2.07 "Earned Income" means net earnings from self-employment for
services actually rendered to the trade or business for which this
Plan is established, in which trade or business personal services
of an Owner- Employee or a Self-Employed Individual are a material
income-producing factor. Earned Income of such trade or business
shall also include gains (other than gains from the sale of a
capital asset, as defined in the Code) and net earnings derived
from the sale or other disposition of, the transfer of any
interest in, or the licensing of the use of, property (other than
good will) by an individual whose personal efforts created such
property. Net earnings will be determined without regard to items
not included in gross income and the deductions allocable to such
items. Net earnings shall be reduced by contributions by the
Employer to a qualified retirement plan to the extent deductible
under Code Section 404.
For taxable years beginning after December 31, 1989, net earnings
shall be determined after the federal income tax deduction allowed
to the Employer by Section 164(f) of the Code for self-employment
taxes.
2.08 "Employee" means any Self-Employed Individual and any common-law
employee who is employed by the Employer maintaining the Plan or
by any other employer required to be aggregated with such Employer
under Sections 414(b), (c), (m) or (o) of the Code. The term
"Employee" shall also include any leased employee deemed to be an
employee of any employer described in the previous paragraph
pursuant to Sections 414(n) or (o) of the Code.
The term "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 Section 414(n)(6) of
the Code) on a substantially full time basis for a period of at
least one year and such services are of a type historically
performed by employees in the business field of the recipient
Employer. Contributions or benefits provided a leased employee by
the leasing organization which are attributable to services
performed for the recipient Employer shall be treated as provided
by the recipient Employer.
A leased employee shall not be considered an employee of the
recipient if: (i) such employee is covered by a money purchase
pension plan providing: (1) a nonintegrated employer contribution
rate of at least 10 percent of compensation, as defined in Section
7.14 of the Plan, but including amounts contributed by the
employer pursuant to a salary reduction agreement which are
excludable from the employee's gross income under Sections 125,
402(e)(3), 402(h) or 403(b) of the Code, (2) immediate
participation, and (3) full and immediate vesting; and (ii) leased
employees do not constitute more than 20 percent of the
recipient's nonhighly compensated workforce.
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<PAGE> 25
2.09 "Employer" means the entity specified in Item 1 of the Adoption
Agreement, any Participating Employer who completed and executed
the Adoption Agreement, any successor employer which shall
maintain this Plan and, in the case of a Non-Standardized Plan,
any Predecessor Employer specified in Item 16 of the Adoption
Agreement. Participating Employers shall be listed in Item 4 of
the Adoption Agreement.
2.10 "Family Member" means, with respect to any Employee or former
Employee, such Employee's or former Employee's spouse and lineal
ascendants and descendants, and the spouses of lineal ascendants
and descendants.
2.11 "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 the
Plan Administrator.
2.12 "Five Percent Owner" means, in the case of a corporation, any
person who owns (or is considered as owning within the meaning of
Code Section 318) more than five percent of the outstanding stock
of the Employer or stock possessing more than five percent of the
total combined voting power of all stock of the Employer. In the
case of an Employer that is not a corporation, "Five Percent
Owner" means any person who owns or under applicable regulations
is considered as owning more than five percent 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), and (m) shall be treated as
separate employers.
2.13 "Former Participant" means a person who has been an active
Participant but who has ceased to actively participate in the plan
for any reason.
2.14 "401(a) Employer Contribution" means a profit sharing or money
purchase pension contribution made by the Employer to the Trust
pursuant to Section 4.01 of the Plan and Adoption Agreement
(Section 4.01(1) of the Adoption Agreement in the case of a
401(k) Plan). 401(a) Employer contributions are subject to the
401(a) Employer Contribution vesting schedule elected by the
Employer in Section 13.01(1) of the Adoption Agreement.
2.15 "401(a) Employer Match Contribution" means, in the case of a
401(k) plan, a match contribution made by the Employer to the
Trust pursuant to Section 4.01 of the Plan and Section 4.01(3) of
the Adoption Agreement. 401(a) Employer Match Contributions are
subject to the Match Contribution vesting schedule elected by the
Employer in Section 13.01(1) of the Adoption Agreement.
2.16 "401(k) Employer Contribution" means a 401(k) Plan contribution
made by the Employer to the Trust pursuant to Sections 4.01 and
4.03 of the Plan and Section 4.01(2) of the Adoption Agreement.
401(k) Employer Contributions shall be 100% vested and
nonforfeitable at all times.
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<PAGE> 26
2.17 "401(k) Employer Match Contribution" means a match contribution
made to the Trust pursuant to Section 4.01 of the Plan and Section
4.01(3) of the Adoption Agreement. 401(k) Employer Match
Contributions shall be 100% vested and nonforfeitable at all
times.
2.18 "Highly Compensated Employee" means and includes highly
compensated active Employees and highly compensated former
Employees.
A highly compensated active Employee includes any Employee who
performs service for the Employer during the determination year
and who, during the look-back year:
(i) received Compensation from the Employer in excess of
$75,000 (as adjusted pursuant to Section 415(d) of the
Code);
(ii) received Compensation from the Employer in excess of
$50,000 (as adjusted pursuant to Section 415(d) of the
Code) and was a member of the top-paid group for such
year; or
(iii) was an officer of the Employer and received Compensation
during such year that is greater than 50 percent of the
dollar limitation in effect under Section 415(b)(1)(A)
of the Code.
The term Highly Compensated Employee also includes:
(i) Employees who are both described in the preceding
sentence if the term "determination year" is substituted
for the term "look-back year" and the Employee is one of
the 100 Employees who received the most Compensation
from the Employer during the determination year; and
(ii) Employees who are Five Percent Owners at any time during
the look-back year or determination year.
If no officer has satisfied the Compensation requirement in (iii)
above during either a determination year or look-back year, the
highest paid officer for such year shall be treated as a Highly
Compensated Employee.
For this purpose, the determination year shall be the Plan Year.
The look-back year shall be the twelve-month period immediately
preceding the determination year.
A highly compensated former Employee includes any Employee who
separated from service (or was deemed to have separated) prior to
the determination year, performs no service for the Employer
during the determination year, and was a highly compensated active
Employee for either the separation year or any determination year
ending on or after the Employee's 55th birthday.
If an Employee is, during a determination year or look-back year,
a Family Member of either a Five Percent Owner who is an active or
former Employee or a Highly Compensated Employee who is one of the
10 most highly compensated Employees ranked on the basis of
Compensation paid by the Employer during such year, then the
Family Member of the Five Percent Owner or top-ten highly
compensated Employee shall be aggregated. In such case, the
Family Member and
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<PAGE> 27
Five Percent Owner or top-ten highly compensated Employee shall be
treated as a single Employee receiving compensation and Plan
contributions or benefits equal to the sum of such Compensation
and contributions or benefits of the Family Member and Five
Percent Owner or top-ten highly compensated Employee.
The determination of who is a Highly Compensated Employee,
including the determinations of the number and identity of
Employees in the top-paid group, the top 100 Employees, the number
of Employees treated as officers and the Compensation that is
considered, will be made in accordance with Section 414(q) of the
Code and the Regulations thereunder. The "top-paid group" are the
top 20% of Employees ranked on the basis of Compensation for the
year in question. In determining the number of Employees in the
top twenty percent, those Employees described in Code Section
414(q)(8) and 414(q)(11) shall be excluded.
If elected by the Employer in Section 2.18 of the Adoption
Agreement, the preceding Section will be modified by substituting
$50,000 for $75,000 in (i) and by disregarding (ii). This
simplified definition of Highly Compensated Employee will apply
only to Employers that maintain significant business activities
(and employ Employees) in at least two significantly separate
geographic areas.
2.19 "Hour of Service" means:
(a) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for the Employer.
These hours shall be credited to the Employee for the
computation period in which the duties are performed;
(b) Each hour for which an Employee is paid, or entitled to
payment, by the Employer on account of a period of time
during which no duties are performed (irrespective of
whether the employment relationship has terminated) due
to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave
of absence. No more than 501 Hours of Service shall be
credited under this paragraph for any single continuous
period (whether or not such period occurs in a single
computation period). Hours under this paragraph shall
be calculated and credited pursuant to Section
2530.200b-2 of the Department of Labor Regulations which
are incorporated herein by this reference; and
(c) Each hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by the
Employer. The same Hours of Service shall not be
credited both under paragraph (a) or paragraph (b), as
the case may be, and under this paragraph (c). These
Hours shall be credited to the Employee for the
computation period or periods to which the award or
agreement pertains rather than the computation period in
which the award, agreement or payment is made.
In addition to the foregoing rules, Hours of Service will be
credited for employment with other members of an affiliated
service group (under Section 414(m) of the Code), a controlled
group of corporations (under Section 414(b) of the Code), or a
group of trades or businesses under common control (under Section
414(c) of the Internal Revenue Code), of which the adopting
Employer is a member, and any other entity required to be
aggregated with the Employer pursuant to Section 414(o) of the
Code and the Regulations thereunder.
-7-
<PAGE> 28
Hours of Service will also be credited for any individual
considered an Employee for purposes of the Plan under Sections
414(n) or (o) of the Internal Revenue Code and the Regulations
thereunder.
Solely for purposes of determining whether a One Year Break in
Service, as defined in Section 2.28, for participation and vesting
purposes has occurred in a computation period, an individual who
is absent from work for maternity or paternity reasons shall
receive credit for the Hours of Service which would otherwise have
been credited to such individual but for such absence, or in any
case in which such Hours cannot be determined, 8 Hours of Service
per day of such absence. For purposes of this paragraph, an
absence from work for maternity or paternity reasons means an
absence (1) by reason of the pregnancy of the individual, (2) by
reason of a birth of a child of the individual, (3) by reason of
the placement of a child with the individual in connection with
the adoption of such child by such individual, or (4) for purposes
of caring for such child for a period beginning immediately
following such birth or placement. The Hours of Service credited
under this paragraph shall be credited (1) in the computation
period in which the absence begins if the crediting is necessary
to prevent a break in service in that period, or (2) in all other
cases, in the following computation period.
Hours of Service shall be determined on the basis of the method
selected in Section 2.19 of the Adoption Agreement.
2.20 "Insurer" means any legal reserve life insurance or annuity
company.
2.21 "Internal Revenue Code" or "Code" means the Internal Revenue Code
of 1986, as amended and any future Internal Revenue Code or
similar Internal Revenue laws.
2.22 "Investment Manager" means any Fiduciary (other than a Trustee or
named fiduciary):
(a) who has the power to manage, acquire, or dispose of any
assets of the Plan;
(b) who is (1) registered as an investment adviser under the
Investment Advisers Act of 1940; (2) a bank, as defined
in that Act; or (3) an insurance company qualified to
perform services described in paragraph (a) under the
laws of more than one state; and
(c) who has acknowledged in writing that it is a Fiduciary
with respect to the Plan.
2.23 "Key Employee" means any Employee or former Employee (and the
beneficiaries of any such Employee) who, at any time during the
Plan Year or any of the preceding four Plan Years, is:
(a) an officer of the Employer (as that term is defined
within the meaning of the regulations under Section 416
of the Code) having an annual Compensation which exceeds
50% of the dollar limitation under Section 415(b)(1)(A)
of the Code (or for Plan Years beginning prior to
January 1, 1989, which exceeds 150% of the dollar
limitation under Section 415(c)(1)(A) of the Code) in
effect for the calendar year in which such Plan Year
ends. If there are 500 or more Employees, in no event
will more than 50 Employees be considered Key Employees
by reason of being officers. If there are fewer than
500 Employees, in no event will more than the greater of
3 Employees or 10% of all Employees be considered Key
Employees by reason of being officers. For purposes of
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the preceding sentence, in determining the number of
Employees, Employees described in Code Section 414(q)(8)
shall be disregarded.
In the case of one or more employers treated as a single
employer under Sections 414(b), (c) or (m) of the Code,
whether or not an individual is an officer shall be
determined based upon his responsibilities with respect
to the employer or employers for which he is directly
employed, and not with respect to the controlled group
of corporations, employers under common control or
affiliated service group.
(b) one of the ten Employees owning (or considered as owning
within the meaning of Code Section 318) both more than a
1/2 percent ownership interest in value and the largest
percentage ownership interests in value of any employers
required to be aggregated under Code Sections 414(b),
(c) and (m). Only those Employees whose Compensation
for the Plan Year exceeds the dollar limitation under
Code Section 415(c)(1)(A) in effect for the calendar
year in which such Plan Year ends shall be considered an
owner under this Subsection (b). For purposes of this
Subsection (b) if more than one Employee owns the same
interest in the Employer, the Employee having the
highest annual Compensation shall be treated as owning a
larger interest.
(c) a "Five Percent Owner" of the Employer.
(d) a "one percent owner" of the Employer having an annual
Compensation for the Plan Year from the Employer of more
than $150,000. In the case of a corporation, "one
percent owner" means any person who owns (or is
considered as owning within the meaning of Section 318
of the Code) more than one percent of the outstanding
stock of the Employer or stock possessing more than one
percent of the total combined voting power of all stock
of the Employer. In the case of an Employer that is not
a corporation, "one percent owner" means any person who
owns (or under applicable regulations is considered as
owning) more than one percent 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) and (m) shall
be treated as separate employers. However, in
determining whether an individual has Compensation of
more than $150,000, Compensation from each employer
required to be aggregated under Sections 414(b), (c) and
(m) of the Internal Revenue Code shall be taken into
account.
The determination of who is a Key Employee will be made in
accordance with Section 416(i)(1) of the Internal Revenue Code and
the Regulations thereunder. For purposes of determining whether a
Participant is a Key Employee, the Participant's annual
Compensation means Compensation as defined in Section 415(c)(3) of
the Code, but including amounts contributed by the Employer
pursuant to a salary reduction agreement which are excludable from
the Employee's gross income under Sections 125, 402(e)(3), 402(h)
or 403(b) of the Code.
2.24 "Limitation Year" means a calendar year or any other twelve
consecutive month period elected by the Employer. The Limitation
Year shall be specified by the Employer in Section 2.24 of the
Adoption Agreement. All qualified plans of the Employer must use
the same Limitation Year. If the Limitation Year is amended to a
different twelve consecutive month period, the new Limitation Year
must begin on a date within the Limitation Year in which the
amendment is made.
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2.25 "Non-Highly Compensated Employee" means any employee who is
neither: (a) a Highly Compensated Employee nor (b) a Family
Member of either: (1) a Five Percent Owner or (2) a Highly
Compensated Employee who is also one of the ten most highly
compensated Employees for the current Plan Year.
2.26 "Non-Key Employee" means any Employee who is not a Key Employee.
2.27 "Normal Retirement Age" means the age specified in Adoption
Agreement Section 2.27 at which time a Participant shall become
eligible to receive his normal retirement benefit. A Participant
shall become fully vested in his Accrued Benefit upon attaining
his Normal Retirement Age. In the event a mandatory retirement
age is enforced by the Employer which is less than the Normal
Retirement Age specified in the Adoption Agreement, such mandatory
age shall be deemed to be the Normal Retirement Age.
2.28 (a) "One Year Break in Service" means, except for purposes
of determining plan entry under Article III
(Participation Requirements), any Plan Year or any
corresponding twelve consecutive month period for
periods prior to the commencement of the first
twelve-month Plan Year during which the Employee has not
completed more than 500 Hours of Service.
(b) For purposes of determining plan entry under Article
III, "One Year Break in Service" means a twelve
consecutive month period, computed with reference to the
date the Employee's employment commenced, during which
the Employee does not complete more than 500 Hours of
Service.
Notwithstanding the above, an authorized leave of absence shall
not cause a One Year Break in Service. An "authorized leave of
absence" means a temporary cessation from active employment with
the Employer pursuant to an established nondiscriminatory policy,
due to illness, military service, or other reason.
2.29 "Owner-Employee" means with respect to an unincorporated business,
a sole proprietor who owns the entire interest in the Employer or
a partner who owns more than 10% of either the capital interest or
the profits interest in the Employer.
2.30 "Participant" means any eligible Employee who participates in the
Plan as provided in Article III and has not for any reason become
ineligible to participate further in the Plan.
2.31 "Plan" means the Employer's retirement plan as herein set forth,
together with the Employer's Adoption Agreement.
2.32 "Plan Anniversary" means the first day of each Plan Year that
begins after the Plan Effective Date. The Plan Anniversary shall
be specified in Item 17 or 18 of the Adoption Agreement.
2.33 "Plan Year" means the twelve consecutive month period commencing
on each Plan Anniversary, except that the first Plan Year shall be
the period commencing on the Plan Effective Date and ending on the
day preceding the first Plan Anniversary.
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2.34 "Policy" means any form of individual life insurance contract,
including any supplementary agreements or riders in connection
therewith, issued by the Insurer on the life of a Participant.
Any life insurance death benefits referred to in the following
paragraphs of this Section 2.34 pertain to amounts purchased with
other than Voluntary After-Tax Contributions. A Policy may
include a provision for waiver of premium or waiver of premiums
and monthly income during disability.
(a) If ordinary life insurance contracts are purchased for a
Participant, the aggregate life insurance premium for a
Participant shall be less than 50% of the aggregate
Employer contributions made on behalf of such
Participant plus allocations of any forfeitures credited
to the account of such Participant. For purposes of
these incidental insurance provisions, ordinary life
insurance contracts are contracts with both
non-decreasing death benefits and non-increasing
premiums.
(b) If term insurance, universal life policies or any other
life insurance policies which are not ordinary life
insurance contracts are used, the aggregate life
insurance premium for a Participant shall not exceed 25%
of the aggregate Employer contributions made on behalf
of such Participant plus allocation of any forfeitures
credited to the account of such Participant.
(c) If a combination of ordinary life insurance and other
life insurance policies is used, the sum of one-half of
the ordinary life insurance premiums and all other life
insurance premiums shall not exceed 25% of the aggregate
Employer contributions made by the Employer on behalf of
the Participant.
The limitation on aggregate life insurance premium payments stated
in this Section 2.34 shall not apply to any funds, from whatever
source, which have accumulated in the Participant's Account for a
period of two (2) or more years, and are applied toward the
purchase of such life insurance. Provided, however, that in no
event may Tax Deductible Voluntary Contributions be invested in
Policies of life insurance.
Subject to Section 12.08, Joint and Survivor Annuity Requirements,
at the election of the Participant, the Policies on a
Participant's life will be converted to cash or an annuity or
distributed to the Participant upon commencement of benefits.
2.35 "Profits" means, for any taxable year of the Employer, the net
income or profits of the Employer for such year without any
deduction for taxes, based upon its income or contributions to the
Trust, and the accumulated net earnings or profits of the
Employer, as the Employer shall determine upon the basis of its
books of account in accordance with its regular accounting
practices.
2.36 "Qualified Joint and Survivor Annuity" means an immediate annuity
for the life of the Participant, with a survivor annuity for the
life of his spouse, if any, in an amount equal to 50% of the
amount of the annuity payable during the joint lives of the
Participant and his spouse, and which is the amount of benefit
which can be purchased with the Participant's Accrued Benefit.
2.37 "Rollover Contribution" means a contribution made to the Trust
pursuant to Section 18.01 of the Plan.
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2.38 "Salary Savings Contribution" means a contribution made by the
Employer to the Trust pursuant to Section 4.03 of the Plan and
Adoption Agreement.
2.39 "Self-Employed Individual" means a person who has Earned Income
for the taxable year under the trade or business or partnership
with respect to which this Plan was adopted; also, an individual
who would have had Earned Income but for the fact that the trade
or business had no Profits for the taxable year. A partner who
owns 10% or less of the capital or profits interest in a
partnership and all Owner-Employees are Self- Employed
Individuals.
2.40 "Service" means the entire period of an Employee's employment with
the Employer. If the Employer has adopted a Non-Standardized
Plan, Service with Predecessor Employers listed in Item 16 of the
Adoption Agreement shall also be treated as Service with the
Employer.
2.41 "Super Top Heavy Plan" means for any Plan Year beginning after
December 31, 1983 that any of the following conditions exists:
(a) If the top heavy ratio (as defined in Article VI) for
this Plan exceeds 90 percent and this Plan is not part
of any required aggregation group or permissive
aggregation group of plans.
(b) If this Plan is a part of a required aggregation group
of plans but not part of a permissive aggregation group
and the top heavy ratio for the group of plans exceeds
90 percent.
(c) If this Plan is a part of a required aggregation group
and part of a permissive aggregation group of plans and
the top heavy ratio for the permissive aggregation group
exceeds 90 percent.
See Article VI for requirements and additional definitions
applicable to Super Top Heavy Plans.
2.42 "Suspense Account" means the account established by the Trustee
for maintaining contributions and forfeitures which have not yet
been allocated to Participants.
2.43 "Taxable Wage Base" means the maximum amount of earnings which may
be considered wages for a year under Section 3121(a)(1) of the
Code as in effect on the first day of the Plan Year.
2.44 "Tax Deductible Voluntary Contribution" means a deductible
employee contribution described in Code Section 72(o)(5). Such
contributions will be 100% vested and nonforfeitable at all times.
No such contributions will be accepted for tax years beginning
after 1986.
2.45 "Top Heavy Plan" means for any Plan Year beginning after December
31, 1983 that any of the following conditions exists:
(a) If the top heavy ratio (as defined in Article VI) for
this Plan exceeds 60 percent and this Plan is not part
of any required aggregation group or permissive
aggregation group of plans.
(b) If this Plan is a part of a required aggregation group
of plans but not part of a permissive aggregation group
and the top heavy ratio for the group of plans exceeds
60 percent.
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(c) If this Plan is a part of a required aggregation group
and part of a permissive aggregation group of plans and
the top heavy ratio for the permissive aggregation group
exceeds 60 percent.
See Article VI for requirements and additional definitions
applicable to Top Heavy Plans.
2.46 "Top Heavy Plan Year" means that, for a particular Plan Year
commencing after December 31, 1983, the Plan is a Top Heavy Plan.
2.47 "Total and Permanent Disability" means the inability of a
Participant to engage in any substantial gainful activity by
reason of a physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months. The permanence
and degree of such impairment shall be supported by medical
evidence.
In determining the nature, extent and duration of any
Participant's disability, the Plan Administrator may select a
physician to examine the Participant. The final determination of
the nature, extent and duration of such disability shall be made
solely by the Plan Administrator upon the basis of such evidence
as he deems necessary and acting in accordance with uniform
principles consistently applied.
2.48 "Trust" means the Plan and Trust set forth herein, as adopted by
the Employer. The Trust of the Employer shall be separate and
apart from the Trust of any other employer which adopts this Plan.
2.49 "Trustee" means Bank One or such other individual(s), bank or
trust company which has agreed to be the Trustee of the Employer's
Plan. The Trustee shall be specified in Item 9 of the Adoption
Agreement.
2.50 "Trust Fund" means any and all property held by the Trustee
pursuant to the Plan and Trust.
2.51 "Valuation Date" means the last day of the Plan Year or, if more
frequently, such other date or dates as may be directed by the
Employer.
2.52 "Voluntary After-Tax Contribution" means an after-tax contribution
made by a Participant to the Trust. Such contributions are
subject to Section 4.04 of the Plan.
2.53 "Year of Service" means, except for any periods otherwise
disregarded in the Adoption Agreement, any Plan Year or any
corresponding twelve consecutive month period for periods prior to
the commencement of the first twelve consecutive month Plan Year
during which the Employee completes at least 1,000 Hours of
Service; provided, however, that for purposes of determining
eligibility for participation under Article III, Year of Service
shall mean any twelve consecutive month period during which he
completes 1,000 Hours of Service computed from the date an
Employee first performs an Hour of Service, or any anniversary
thereof (or again performs an Hour of Service upon re-employment
following a termination resulting in a One Year Break in Service).
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ARTICLE III
PARTICIPATION REQUIREMENTS
3.01 ACTION BY EMPLOYER - An Employer may adopt this Plan and Trust by:
(a) executing the Adoption Agreement and such other forms as
the Trustee may require,
(b) designating the Trustee to act as Trustee under the Plan
and Trust, and
(c) having the designated Trustee execute this Trust and
accept the Employer's participation by signing the
Adoption Agreement as completed by the Employer.
3.02 (a) EMPLOYEE PARTICIPATION - Profit Sharing Plan, Money
Purchase Pension Plan, 401(k) Plan - Those Employees
eligible to become Participants shall be specified in
Section 3.02(1) of the Adoption Agreement.
If the Employer is maintaining a Profit Sharing or Money
Purchase Pension Plan or if the Employer is maintaining
a 401(k) Plan and the Employer specifies in Section 4.01
of the Adoption Agreement that the Employer will make
401(a) Employer Contributions or 401(k) Employer
Contributions to the Trust, each eligible Employee who
complies with the requirements set forth in this Plan
and Trust shall become a Participant on the entry date
specified in Section 3.02(2) of the Adoption Agreement
if he is employed on such date.
(b) EMPLOYEE PARTICIPATION - Salary Savings Plan - If
specified by the Employer in Section 4.03 of the
Adoption Agreement, on or after an eligible Employee's
Salary Savings Plan entry date the Employee may direct
the Employer to reduce his Compensation or Earned Income
in order that the Employer may make Salary Savings
Contributions to the Trust on the Employee's behalf.
Any such Employee shall become a Participant in the
Salary Savings Plan on the date his compensation
reduction agreement becomes effective. Any such
direction shall be made by filing an appropriate form
with the Plan Administrator. The Compensation or Earned
Income of any eligible Employee electing salary savings
shall be reduced by the percentage or dollar amount
requested by the Employee (which percentage or dollar
amount may not be less than any minimum or more than any
maximum specified by the Employer in Section 4.03 of the
Adoption Agreement); provided, however, that the Plan
Administrator may reduce the Employee's Compensation by
a smaller percentage or dollar amount or refuse to enter
into or comply with a salary savings agreement with the
Employee if the requirements of the Code Section 401(k)
would otherwise be violated or if the Participant has
previously discontinued a salary savings agreement. No
Participant shall be permitted to have Salary Savings
Contributions made under this Plan, or any other
qualified plan maintained by the Employer, during any
taxable year in excess of the dollar limitation under
Code Section 402(g) in effect at the beginning of such
taxable year. Any salary savings agreement shall become
effective on the first day of the first payroll period
which begins at least 15 days after an appropriate form
is received by the Plan Administrator or such earlier
date as may be agreeable to the Plan Administrator. The
reduction in Compensation will remain in effect until
terminated in accordance with the rules set forth in the
Plan and Trust.
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A Participant may elect at any time to discontinue his
salary savings agreement with the Employer, and may
change his salary savings agreement subject to any
limitation specified by the Employer in Section 4.03 of
the Adoption Agreement. Any such change or
discontinuance shall become effective on the first day
of the first payroll period which begins at least 15
days after a written notice thereof is received by the
Plan Administrator.
(c) REELIGIBILITY OF FORMER EMPLOYEES - Notwithstanding the
rules set forth in Section 3.02(a), in the case of a
Profit Sharing Plan, Money Purchase Pension Plan or
401(k) Plan to which the Employer is making 401(a)
Employer Contributions or 401(k) Employer Contributions,
a former Employee who had previously met the Age and
Service requirements specified in Section 3.02 of the
Adoption Agreement or a Former Participant, either of
whom again becomes eligible to participate in the Plan,
will become a Participant on the date of his
recommencement of Service, unless his prior Service is
disregarded under the rules set forth in Sections
3.02(3)(a) or 3.02(3)(b) of the Adoption Agreement, if
designated as applicable by the Employer. Any other
former Employee or Participant who again becomes
eligible will become a Participant on the entry date
determined under the rules set forth in Section 3.02(a).
Notwithstanding the rules set forth in Section 3.02(b)
of the Plan, a former Employee who had previously met
the Age and Service requirements specified in Section
3.02 of the Adoption Agreement or a Former Participant,
either of whom again becomes eligible to participate in
the Plan, will again be eligible to enter into a
compensation reduction agreement with the Employer on
the date of his recommencement of Service, unless his
prior Service is disregarded under the rules set forth
in Sections 3.02(3)(a) or 3.02(3)(b) of the Adoption
Agreement, if designated as applicable by the Employer.
Any other former Employee or Participant who again
becomes eligible may enter into a compensation reduction
agreement with the Employer on or after his entry date,
as determined under the rules set forth in Section
3.02(a).
(d) INELIGIBILITY, PARTICIPATION IN OTHER PLANS - In the
event that the Employer specifies in the Adoption
Agreement that Employees eligible for other qualified
pension or profit sharing plans to which the Employer
contributes are not eligible to participate in this
Plan, a Participant for whom a contribution is
subsequently made under such other qualified pension or
profit sharing plan shall no longer participate under
this Plan; and in the event of such subsequent
contribution the further rights of such Participant
shall be determined in accordance with Section 3.04.
3.03 CHANGE IN EMPLOYEE STATUS - The Plan Administrator shall notify
the Trustee in the event a Participant's status with respect to
the Plan shall change, and shall furnish the Trustee with such
additional information relative to the Plan as the Trustee may
from time to time request.
3.04 CLASSIFICATION CHANGES - In the event of a change in job
classification or in the event Section 3.02(d) becomes applicable
to a Participant, such that an Employee, although still in the
employment of the Employer, no longer is an eligible Employee, all
contributions and forfeitures to be allocated on his behalf shall
cease and any amount credited to the Employee's Accounts on the
date the Employee shall become ineligible shall continue to vest,
become payable or be
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<PAGE> 36
forfeited, as the case may be, in the same manner and to the same
extent as if the Employee had remained a Participant.
In the case of a Profit Sharing Plan, Money Purchase Pension Plan
or 401(k) Plan under which an Employer is to make 401(a) or 401(k)
Employer Contributions or Match Contributions, if a Participant
becomes ineligible to share in future Employer contributions and
forfeitures because he is no longer a member of an eligible class
of Employees, but has not incurred a One Year Break in Service (as
defined in Section 2.28(a)), such Employee shall again be eligible
to share in Employer contributions and forfeitures immediately
upon his return to an eligible class of Employees. If such
Participant incurs such a One Year Break in Service, his
eligibility to again participate shall be determined pursuant to
Section 3.02(c).
In the event an Employee who is not a member of the eligible class
of Employees becomes a member of the eligible class, such Employee
shall participate immediately if such Employee has satisfied the
minimum Age and Service requirements and would have previously
become a Participant had he been in the eligible class.
3.05 LEAVE OF ABSENCE - The Accounts of a Participant who is on an
authorized leave of absence (as described in Section 2.28) shall
share in the allocation of Employer contributions, including (if
applicable), 401(k) Employer and Match Contributions and
forfeitures to the extent that the Participant receives
Compensation from the Employer, if such Participant otherwise
satisfies the requirements of Section 4.01 of the Adoption
Agreement, and such Accounts shall continue to share in allocation
of Trust Fund income or losses under the provisions of Article V.
3.06 ADDITIONAL RULES FOR PLANS COVERING OWNER-EMPLOYEES - If this Plan
provides contributions or benefits for one or more Owner-Employees
who control both the business for which this Plan is established
and one or more other trades or businesses, this Plan and the plan
established for other trades or businesses must, when looked at as
a single plan, satisfy Code Sections 401(a) and (d) for the
employees of this and all other trades or businesses.
If the Plan provides contributions or benefits for one or more
Owner-Employees who control one or more other trades or
businesses, the employees of the other trades or businesses must
be included in a plan which satisfies Code Sections 401(a) and (d)
and which provides contributions and benefits not less favorable
than provided for Owner-Employees under this Plan.
If an individual is covered as an Owner-Employee under the plans
of two or more trades or businesses which are not controlled and
the individual controls a trade or business, then the
contributions or benefits of the employees under the plan of the
trades or businesses which are controlled must be as favorable as
those provided for him under the most favorable plan of the trade
or business which is not controlled.
For purposes of the preceding paragraphs, an Owner-Employee, or
two or more Owner-Employees, will be considered to control a trade
or business if the Owner-Employee, or two or more Owner-Employees
together:
(1) own the entire interest in an unincorporated trade or
business, or
(2) in the case of a partnership, own more than 50 percent
of either the capital interest or the profits interest
in the partnership.
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For purposes of the preceding sentence, an Owner-Employee, or two
or more Owner-Employees shall be treated as owning any interest in
a partnership which is owned, directly or indirectly, by a
partnership which such Owner-Employee, or such two or more
Owner-Employees, are considered to control within the meaning of
the preceding sentence.
3.07 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 the Employer for the year has been made and
allocated, the Employer shall make a subsequent contribution with
respect to the omitted Employee in the amount which the 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, by the Employer in any
taxable year under applicable provisions of the Code.
3.08 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 and allocated, 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 for the Plan Year in which the discovery is made.
ARTICLE IV
PLAN CONTRIBUTIONS
4.01 EMPLOYER CONTRIBUTIONS - The Employer shall make Profit Sharing,
Money Purchase Pension or, in the case of a 401(k) Plan, 401(a)
Employer, 401(k) Employer and Employer Match contributions to the
Trust for each Plan Year to the extent and in the manner specified
in Section 4.01 of the Adoption Agreement.
In addition to Employer Contributions authorized by Section 4.01
of the Adoption Agreement, the Employer shall also be authorized
(but shall not be required) to reimburse the Trust Fund for all
expenses and fees incurred in the administration of the Plan or
Trust and paid out of the assets of the Trust Fund. Such expenses
shall include, but shall not be limited to, fees for professional
services (including Trustee fees), printing, postage, and
brokerage or other commissions.
The Employer may contribute Employer Contributions for each Plan
Year to the Trustee on any date or dates which the Employer may
select, subject to the consent of the Trustee; provided that, to
then be deductible, the total contributions for each Plan Year
shall be paid within the time prescribed by law for the deduction
of such contributions for purposes of the Employer's Federal
Income Tax for such year.
4.02 MINIMUM EMPLOYER CONTRIBUTIONS FOR TOP HEAVY PLANS
(a) Minimum Allocation for Non-Key Employees -
Notwithstanding anything in the Plan to the contrary
except (b) through (f) below, for any Top Heavy Plan
Year, the sum of the Employer's contributions and
forfeitures allocated to the Accounts of each Non-Key
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<PAGE> 38
Employee Participant shall be equal to at least three
percent of such Non-Key Employee's Compensation.
However, should the sum of the Employer's contributions
and forfeitures allocated to the Accounts of each Key
Employee for such Top Heavy Plan Year be less than three
percent of each Key Employee's Compensation and the
Employer has no defined benefit plan which designates
this Plan to satisfy Section 401(a)(4) or 410 of the
Code, the sum of the Employer's contributions and
forfeitures allocated to the Accounts of each Non-Key
Employee shall be equal to the largest percentage
allocated to the Accounts of a Key Employee.
The minimum contribution provided for in this Section
shall be determined without regard to any Social
Security contribution, without regard to Salary Savings
Contributions and without regard to 401(k) or 401(a)
Employer Match Contributions to the extent such match
contributions are necessary to satisfy Sections 8.02 or
9.02. For purposes of computing the minimum
contribution provided for in this Section, Compensation
shall mean Section 3401(a) wages, Section 6041/etc.
compensation or Section 415 safe-harbor compensation (as
such terms are defined in Section 2.06), whichever is
elected by the Employer in Section 2.06 of the Adoption
Agreement or, in the case of a Self-Employed Individual,
Earned Income.
(b) Extra Minimum Allocation Permitted for Top Heavy Plans
other than Super Top Heavy Plans - If a Key Employee is
a Participant in both a defined contribution plan and a
defined benefit plan that are both part of a required or
permissive aggregation group of Top Heavy Plans (but
neither of such plans is a Super Top Heavy Plan), the
defined contribution and the defined benefit fractions
described in Article VII shall remain unchanged,
provided each Non-Key Employee who is a Participant
receives an extra allocation (in addition to the minimum
allocation set forth above) equal to not less than one
percent of such Non-Key Employees' Compensation.
(c) For purposes of the minimum allocations set forth above,
the percentage allocated to the Accounts of any Key
Employee shall be equal to the ratio of the sum of the
Employer's contribution and forfeitures allocated on
behalf of such Key Employee divided by the first
$150,000 of Compensation (as defined for purposes of
Article VII).
(d) For any Top Heavy Plan Year, the minimum allocations set
forth above shall be allocated to the Accounts of all
Non-Key Employees who are Participants and who are
employed by the Employer on the last day of the Plan
Year, including (1) Non-Key Employee Participants who
have failed to complete a Year of Service; (2) Non-Key
Employees otherwise eligible to participate in the Plan
who declined to make any mandatory employee
contributions or Salary Savings Contributions to the
Plan; and (3) Non-Key Employees whose Compensation is
less than a stated amount.
(e) Notwithstanding anything herein to the contrary, in any
Plan Year in which a Non-Key Employee is a Participant
in both this Plan and a defined benefit pension plan
included in a Required or Permissive Aggregation Group
of Top Heavy Plans, the Employer shall not be required
to provide a Non-Key Employee with both the full
separate minimum defined benefit plan benefit and the
full separate minimum defined contribution plan
allocation described in this Section. Therefore, if the
Employer maintains such a defined benefit and defined
contribution plan, the top-heavy minimum benefits shall
be provided as follows:
(i) If a Non-Key Employee is a participant in such
defined benefit plan but is not a
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participant in this defined contribution plan,
the minimum benefits provided for Non-Key
Employees in the defined benefit plan shall be
provided to the employee if the defined benefit
plan is a Top Heavy or Super Top Heavy Plan and
the minimum contributions described in this
Section 4.02 shall not be provided.
(ii) If a Non-Key Employee is a participant in such
defined benefit plan and is also a participant in
this defined contribution plan, the provisions of
Subsections (a) and (b) above shall be applicable
to each such Non-Key Employee meeting the
requirements of Subsection (d) above, except that
the minimum contribution shall be increased from
3% to 5% and the extra minimum contribution, if
applicable, shall be increased from 1% to 2 1/2%.
The minimum benefits for Non-Key Employee
participants in Top Heavy or Super Top Heavy
Plans provided in the defined benefit plan shall
not be applicable to any such Non- Key Employee
who receives the full maximum contribution
described in the preceding sentence.
Notwithstanding anything herein to the contrary, no
minimum contribution will be required under this Plan
(or the minimum contribution under this Plan will be
reduced, as the case may be) for any Plan Year if the
Employer maintains another qualified defined
contribution plan and the Employer has specified in
Section 4.02 of the Adoption Agreement that the minimum
allocation requirement applicable to Top Heavy or Super
Top Heavy Plans will be met in the other plan.
(f) The minimum allocation required under this Section 4.02
(to the extent required to be nonforfeitable under Code
Section 416(b)) may not be forfeited under Code Sections
411(a)(3)(B) or 411(a)(3)(D)).
4.03 SALARY SAVINGS CONTRIBUTIONS - The Employer shall make Salary
Savings Contributions to the Trust for each Plan Year to the
extent and in the manner specified in Article III and in Section
4.03 of the Adoption Agreement.
The Employer shall pay its Salary Savings Contributions to the
Trustee within 30 days of the date such contributions would have
been payable to the Employee in the absence of the Salary Savings
Agreement.
4.04 VOLUNTARY AFTER-TAX CONTRIBUTIONS - If the Employer has adopted a
401(k) Plan, if and to the extent permitted by Section 4.04 of the
Adoption Agreement, a Participant may make Voluntary After-Tax
Contributions to the Trust. For Plan Years beginning after 1986,
such contributions must satisfy Article IX.
If the Employer's Plan is not a 401(k) Plan, the Plan will not
accept Voluntary After-Tax Contributions for Plan Years beginning
after the Plan Year in which this amended and restated Plan is
adopted by the Employer. Voluntary After-Tax Contributions for
Plan Years beginning after December 31, 1986 will be limited so as
to meet the nondiscrimination test of Code Section 401(m).
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<PAGE> 40
A Participant shall have the right at any time to request a
withdrawal in cash of the portion of his Accrued Benefit
attributable to his Voluntary After-Tax Contributions. If
necessary to comply with the requirements of Section 12.08, the
Plan Administrator shall require the consent of the Participant's
spouse before making any withdrawal. Any such consent shall
satisfy the requirements of Section 12.08. Any such amount
requested to be withdrawn shall be paid within 90 days following
the date written request therefor is received by the Plan
Administrator. In-service withdrawals shall be subject to any
requirements, restrictions or limitations imposed under Section
10.03. Values not so withdrawn, including any increments earned
on withdrawn amounts prior to withdrawal, shall be distributed to
the Participant or his Beneficiary at such time and in such manner
as the Trust otherwise provides for Account distributions.
No forfeitures will occur solely as a result of an Employee's
withdrawal of Voluntary After-Tax Contributions.
The portion of a Participant's Accrued Benefit attributable to
Voluntary After-Tax Contributions shall be 100% vested and
nonforfeitable at all times.
4.05 TAX DEDUCTIBLE VOLUNTARY CONTRIBUTIONS - The Plan Administrator
will not accept Tax Deductible Voluntary Contributions which are
made for a taxable year beginning after December 31, 1986.
Contributions made prior to that date will be maintained in a
separate account which will be nonforfeitable at all times. The
account will share in the gains and losses of the trust in the
same manner as described in Section 5.04 of the Plan. No part of
the Tax Deductible Voluntary Contribution Account will be used to
purchase life insurance. Subject to Section 12.08, Joint and
Survivor Annuity Requirements, the Participant may withdraw any
part of his Tax Deductible Voluntary Contribution Account by
making a written application to the Plan Administrator.
4.06 PAYMENT OF CONTRIBUTIONS TO TRUSTEE - The Employer shall make
payment of all contributions, including Participant contributions
which shall be remitted to the Employer by payroll deduction or
otherwise, directly to the Trustee in accordance with this Article
IV but subject to Section 4.07.
4.07 RECEIPT OF CONTRIBUTIONS BY TRUSTEE - The Trustee shall receive
and hold under the Trust any contributions, in cash or other
property acceptable to it, received from the Employer, any
Participant or any trust qualified under Section 401 of the Code,
pursuant to the terms of the Plan, other than cash it is
instructed to remit to the Insurer for deposit with the Insurer.
However, the Employer may pay contributions directly to the
Insurer and such payment shall be deemed a contribution to the
Trust to the same extent as if payment had been made to the
Trustee. All such contributions shall be accompanied by written
instructions from the Employer accounting for the manner in which
they are to be credited and specifying the appropriate Participant
Account to which they are to be allocated. All Employer
contributions shall be credited by the Trustee to a Suspense
Account until allocated to Participants as provided in the Trust.
The Trustee shall be responsible for such sums as are actually
received by it as Trustee hereunder. The Trustee shall have no
duty or responsibility to ascertain whether any contributions
should be made to it pursuant to the Plan, to bring any action to
enforce any obligation to make any contribution under the Plan or
to determine if the amount contributed is in accordance with the
Plan or Code.
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<PAGE> 41
ARTICLE V
PARTICIPANT ACCOUNTS, ALLOCATION OF
CONTRIBUTIONS AND VALUATION OF ASSETS
5.01 PARTICIPANT ACCOUNTS - Separate accounts shall be maintained for
the portion of a Participant's Accrued Benefit attributable to the
following: (1) Salary Savings Contributions; (2) Profit Sharing,
Money Purchase or, in the case of a 401(k) Plan, 401(a) Employer
Contributions; (3) 401(k) Employer Contributions; (4) 401(k) Match
Contributions; (5) 401(a) Match Contributions; (6) Voluntary
After-Tax Contributions; (7) Tax Deductible Voluntary
Contributions; and (8) Rollover Contributions. Each separate
account shall be credited with the applicable contributions,
earnings and losses, distributions, and other applicable
adjustments.
5.02 METHOD FOR ALLOCATION OF PROFIT SHARING CONTRIBUTIONS OR EMPLOYER
CONTRIBUTIONS TO 401(k) PLANS - For each Plan Year, 401(k)
Employer Contributions shall be allocated among eligible
Participants in proportion to Compensation. Profit Sharing
Contributions or, in the case of a 401(k) Plan, 401(a) Employer
Contributions will be allocated as specified by the Employer in
the Adoption
Agreement among all eligible Participants for such Plan Year.
Employer Match Contributions shall be allocated among eligible
Participants as specified by the Employer in Section 4.01(3)(b) or
(c) of the Adoption Agreement.
5.03 APPLICATION OF FORFEITURES - For each Plan Year, amounts forfeited
during such year pursuant to Article XIII (Benefits upon
Termination of Service) shall be allocated or applied as specified
in Section 5.03 of the Adoption Agreement. The Plan Administrator
shall choose the type of Employer Contributions which provide the
basis for allocating forfeitures or which are to be reduced by
forfeitures, on a uniform and consistent basis.
Forfeitures arising hereunder will be allocated only for the
benefit of Employees of the Employer who adopted this Plan.
5.04 ANNUAL VALUATION OF TRUST FUND - The Trustee, as of the last
Valuation Date of each Plan Year and prior to the allocation of
contributions or forfeitures, shall determine the net value of the
Trust Fund assets (other than investments specifically allocated
to Participant Accounts ("earmarked investments"), such as mutual
fund shares, amounts allocated to Participant Accounts under any
group annuity contract or any Policies purchased as investments
for Participant Accounts) and the amount of net income or net loss
allowable thereto and shall report such value to the Employer in
writing. In determining such value the Trustee shall value assets
at fair market value. The net value of the Trust Fund shall
include any life insurance Policies held by the Trustee on the
lives of Key Employees pursuant to Section 17.03. Key man life
insurance policies shall be valued at their respective cash
surrender values as of the Valuation Date. The resulting net
income or loss of the Trust Fund shall then be debited or credited
to each Participant's Accounts in the same ratio as each such
Account bears to the aggregate of all such Accounts. After such
crediting of the valuation to each Participant's Account,
contributions and forfeitures shall be allocated to each such
Account, as set forth in the Adoption Agreement.
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<PAGE> 42
Earmarked investments allocated to Participant Accounts will be
valued separately as of each Valuation Date at their fair market
value and on each such Date earnings, expenses and gains and
losses attributable to such investments will be debited or
credited to the appropriate Participant Account.
5.05 STATEMENT OF ACCOUNT - As soon as practicable after the end of
each Plan Year, the Plan Administrator shall present to each
Participant a statement of his Accounts showing the credit to his
Accounts at the beginning of such Year, any changes during the
Year, the credit to his Accounts at the end of the Year, and such
other information as the Plan Administrator may determine.
However, the statements of a Participant's Accounts shall not
operate to vest in any Participant any right or interest to any
assets of the Trust except as the Trust specifically provides.
ARTICLE VI
PROVISIONS APPLICABLE TO TOP HEAVY PLANS
6.01 TOP HEAVY PLAN REQUIREMENTS
(a) For any Top Heavy Plan Year, the Plan shall provide the
following:
(i) the minimum vesting requirements for Top Heavy
Plans set forth in Section 13.01 of the Adoption
Agreement; and
(ii) the minimum contribution requirements set forth
in Section 4.02 of the Plan.
(b) Once a Plan has become a Top Heavy Plan, if the Employer
so specifies in Section 6.01(b) of the Adoption
Agreement, the minimum contribution requirements for Top
Heavy Plans set forth in Section 4.02 of the Plan shall
be applicable in all subsequent Plan Years, regardless
of whether such years are Top Heavy Plan Years.
(c) Once a Plan has become a Top Heavy Plan, the vesting
requirements described in Section 13.01(2) of the
Adoption Agreement shall be applicable to all subsequent
Plan Years, regardless of whether such years are Top
Heavy Plan Years.
If the Plan is or becomes a Top Heavy Plan in any Plan Year
beginning after December 31, 1983, the provisions of this Article
VI will supersede any conflicting provision in the Plan or
Adoption Agreement.
The top heavy minimum vesting schedule applies to all benefits
within the meaning of Code Section 411(a)(7) except those
attributable to Employee and Salaried Savings contributions,
including benefits accrued before the effective date of Section
416 of the Code and benefits accrued before the Plan became top
heavy. Further, no decrease in a Participant's nonforfeitable
percentage may occur in the event the Plan's status as top heavy
changes for any Plan Year. However, this Section does not apply
to the Account balances of any Employee who does not have an Hour
of Service after the Plan has initially become top heavy and such
Employee's Account balance attributable to Employer contributions
and forfeitures will be determined without regard to this Section.
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<PAGE> 43
6.02 DETERMINATION OF TOP HEAVY STATUS
(a) This Plan shall be a Top Heavy Plan for any Plan Year
commencing after December 31, 1983, if any of the
following conditions exists:
(i) If the top heavy ratio for this Plan exceeds 60
percent and this Plan is not part of any required
aggregation group or permissive aggregation group
of plans.
(ii) If this Plan is a part of a required aggregation
group of plans but not part of a permissive
aggregation group and the top heavy ratio for the
group of plans exceeds 60 percent.
(iii) If this Plan is a part of a required aggregation
group and part of a permissive aggregation group
of plans and the top heavy ratio for the
permissive aggregation group exceeds 60 percent.
(b) This Plan shall be a Super Top Heavy Plan for any Plan
Year commencing after December 31, 1983 if any of the
following conditions exists:
(i) If the top heavy ratio for this Plan exceeds 90
percent and this Plan is not part of any required
aggregation group or permissive aggregation group
of plans.
(ii) If this Plan is a part of a required aggregation
group of plans but not part of a permissive
aggregation group and the top heavy ratio for the
group of plans exceeds 90 percent.
(iii) If this Plan is a part of a required aggregation
group and part of a permissive aggregation group
of plans and the top heavy ratio for the
permissive aggregation group exceeds 90 percent.
(c) The Plan top heavy ratio shall be determined as follows:
(i) Defined Contribution Plans Only: If the Employer
maintains one or more defined contribution plans
(including any Simplified Employee Pension Plan,
as defined in Section 401(k) of the Code) and the
Employer has not maintained any defined benefit
plan which during the 5-year period ending on the
determination date(s) has or has had accrued
benefits, the top-heavy ratio for this Plan alone
or for the required or permissive aggregation
group, as appropriate, is a fraction, the
numerator of which is the sum of the account
balances of all Key Employees as of the
determination date(s) (including any part of any
account balance distributed in the 5-year period
ending on the determination date(s)), and the
denominator of which is the sum of all account
balances (including any part of any account
balance distributed in the 5-year period ending
on the determination date(s)), both computed in
accordance with Section 416 of the Code and the
Regulations thereunder. Both the numerator and
denominator of the top-heavy ratio are increased
to reflect any contribution not actually made as
of the determination date, but which is required
to be taken into account on that date under
Section 416 of the Code and the Regulations
thereunder.
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(ii) Defined Contribution and Defined Benefit Plans:
If the Employer maintains one or more defined
contribution plans (including any Simplified
Employee Pension Plan) and the Employer maintains
or has maintained one or more defined benefit
plans which during the 5- year period ending on
the determination date(s) has or has had any
accrued benefits, the top-heavy ratio for any
required or permissive aggregation group, as
appropriate, is a fraction, the numerator of
which is the sum of account balances under the
aggregated defined contribution plan or plans for
all Key Employees, determined in accordance with
(i) above, and the present value of accrued
benefits under the aggregated defined benefit
plan or plans for all Key Employees as of the
determination date(s), and the denominator of
which is the sum of the account balances under
the aggregated defined contribution plan or plans
for all Employees, determined in accordance with
(i) above, and the present value of accrued
benefits under the defined benefit plan or plans
for all Employees as of the determination
date(s), all determined in accordance with
Section 416 of the Code and the Regulations
thereunder. The accrued benefits under a defined
benefit plan in both the numerator and
denominator of the top-heavy ratio are increased
for any distribution of an accrued benefit made
in the five-year period ending on the
determination date.
(iii) Determination of Values of Account Balances and
Accrued Benefits: For purposes of (i) and (ii)
above the value of Account balances and the
present value of Accrued Benefits will be
determined as of the most recent valuation date
that falls within or ends with the 12- month
period ending on the determination date, except
as provided in Section 416 of the Code and the
Regulations thereunder for the first and second
plan years of a defined benefit plan. The
account balances and accrued benefits of a
Participant (1) who is not a Key Employee but who
was a Key Employee in a prior year, or (2) who
has not had at least one Hour of Service with any
Employer maintaining the Plan at any time during
the 5-year period ending on the determination
date will be disregarded. The calculation of the
top- heavy ratio, and the extent to which
distributions, rollovers, and transfers are taken
into account will be made in accordance with
Section 416 of the Code and the Regulations
thereunder. Deductible employee contributions
will not be taken into account for purposes of
computing the top-heavy ratio. When aggregating
plans the value of account balances and accrued
benefits will be calculated with reference to the
determination dates that fall within the same
calendar year.
The Accrued Benefit of a Participant other than a
Key Employee shall be determined under (i) the
method, if any, that uniformly applies for
accrual purposes under all defined benefit plans
maintained by the Employer; or (ii) if there is
no such method, as if such benefit accrued not
more rapidly than the slowest accrual rate
permitted under the fractional rule of Section
411(b)(1)(C) of the Code.
(d) Permissive aggregation group: The required aggregation
group of plans plus any other plan or plans of the
Employer which, when considered as a group with the
required aggregation group, would continue to satisfy
the requirements of Code Sections 401(a)(4) and 410.
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<PAGE> 45
(e) Required aggregation group: (1) Each qualified plan of
the Employer in which at least one Key Employee
participates, and (2) any other qualified plan of the
Employer which enables a plan described in (1) to meet
the requirements of Code Sections 401(a)(4) or 410.
(f) Determination date: For any Plan Year subsequent to the
first Plan Year, the last day of the preceding Plan
Year. For the first Plan Year of the Plan, the last day
of that year.
(g) Valuation date: The date elected by the Employer in
Section 6.02(g) of the Adoption Agreement as of which
Account balances or accrued benefits are valued for
purposes of calculating the top heavy ratio.
(h) Present value: Present value shall be based only on the
interest and mortality rates specified in Section
6.02(h) of the Adoption Agreement.
ARTICLE VII
415 LIMITATIONS ON ALLOCATIONS
(See Section 7.13 - 7.23 for definitions applicable to this Article VII).
7.01 If the Participant does not participate in, and has never
participated in another qualified plan or a welfare benefit fund,
as defined in Code Section 419(e), maintained by the Employer, an
individual medical account, as defined in Code Section 415(l)(2)
maintained by the Employer, or a simplified employee pension, as
defined in Section 408(k) of the Code, maintained by the Employer
which provides an Annual Addition, the amount of Annual Additions
which may be credited to the Participant's Accounts for any
Limitation Year will not exceed the lesser of the Maximum
Permissible Amount or any other limitation contained in this Plan.
If the Employer contribution that would otherwise be contributed
or allocated to the Participant's Accounts would cause the Annual
Additions for the Limitation Year to exceed the Maximum
Permissible Amount, the amount contributed or allocated will be
reduced so that the Annual Additions for the Limitation Year will
equal the Maximum Permissible Amount.
7.02 Prior to determining the Participant's actual Compensation for the
Limitation Year, the Employer may determine the Maximum
Permissible Amount on the basis of a reasonable estimation of the
Participant's annual Compensation for the Limitation Year,
uniformly determined for all Participants similarly situated.
7.03 As soon as is administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for the Limitation
Year will be determined on the basis of the Participant's actual
Compensation for the Limitation Year.
7.04 If, pursuant to Section 7.03, as the result of the allocation of
forfeitures, or because a reasonable error is made in determining
the amount of elective deferrals (within the meaning of Section
402(g)(3) of the Code) that may be made with respect to any
individual under the limits of Section 415 of the Code, there is
an Excess Amount, such excess shall not be deemed annual additions
in that Limitation Year. In addition, such Excess Amount will not
be taken into account for the
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<PAGE> 46
ACP or ADP tests (described in Articles VIII and IX of the Plan)
and will be disposed of as follows:
(a) Any Voluntary After-Tax Contributions, to the extent
they would reduce the Excess Amount, will be returned to
the Participant;
(b) Any Salary Savings Contributions, to the extent they
would reduce the Excess Amount, will be returned to the
Participant;
(c) If, after the application of paragraphs (a) and (b)
above, an Excess Amount still exists, the Excess Amount
will be held unallocated in a Suspense Account. The
Suspense Account will be applied to reduce future
Employer contributions for all remaining Participants in
the next Limitation Year and each succeeding Limitation
Year if necessary.
If a Suspense Account is in existence at any time during
the Limitation Year pursuant to this Section, it will
not participate in the allocation of the Trust's
investment gains and losses.
If a Suspense Account is in existence at any time during
a particular Limitation Year, all amounts in the
Suspense Account must be allocated and reallocated to
Participants' accounts before any Employer or any
Employee contributions may be made to the Plan for that
Limitation Year. Excess amounts may not be distributed
to Participants or Former Participants.
(d) 401(a) and 401(k) Employer Match Contributions
attributable to excess Annual Additions under the terms
of this paragraph will be treated as forfeitures under
the Plan.
Sections 7.05 through 7.10 apply if, in addition to this Plan, the Participant
is covered under another qualified Master or Prototype defined contribution
plan, a welfare benefit fund, maintained by the Employer, an individual medical
account maintained by the Employer or a simplified employee pension maintained
by the Employer that provides an Annual Addition, as defined in Section 7.13,
during any Limitation Year.
7.05 The Annual Additions which may be credited to a Participant's
Accounts under this Plan for any such Limitation Year will not
exceed the Maximum Permissible Amount reduced by the Annual
Additions credited to a Participant's account under the other
plans and welfare benefit funds for the same Limitation Year. If
the Annual Additions with respect to the Participant under other
defined contribution plans maintained by the Employer are less
than the Maximum Permissible Amount and the Employer contribution
that would otherwise be contributed or allocated to the
Participant's Accounts under this Plan would cause the Annual
Additions for the Limitation Year to exceed this limitation, the
amount contributed or allocated will be reduced so that the Annual
Additions under all such plans for the Limitation Year will equal
the Maximum Permissible Amount. If the Annual Additions with
respect to the Participant under such other defined contribution
plans and welfare benefit funds in the aggregate are equal to or
greater than the Maximum Permissible Amount, no amount will be
contributed or allocated to the Participant's Accounts under this
Plan for the Limitation Year.
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<PAGE> 47
7.06 Prior to determining the Participant's actual Compensation for the
Limitation Year, the Employer may determine the Maximum
Permissible Amount in the manner described in Section 7.02.
7.07 As soon as is administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for the Limitation
Year will be determined on the basis of the Participant's actual
Compensation for the Limitation Year.
7.08 If, pursuant to Section 7.07 or as a result of the allocation of
forfeitures, a Participant's Annual Additions under this Plan and
such other plans would result in an Excess Amount for a Limitation
Year, the Excess Amount will be deemed to consist of the Annual
Additions last allocated, except that Annual Additions
attributable to a welfare benefit fund or an individual medical
account will be deemed to have been allocated first regardless of
the actual allocation date.
7.09 If an Excess Amount was allocated to a Participant on an
allocation date of this Plan which coincides with an allocation
date of another plan, the Excess Amount attributed to this Plan
will be the product of,
(a) the total Excess Amount allocated as of such date, times
(b) the ratio of (i) the Annual Additions allocated to the
Participant for the Limitation Year as of such date
under this Plan to (ii) the total Annual Additions
allocated to the Participant for the Limitation Year as
of such date under this and all the other qualified
Master or Prototype defined contribution plans.
7.10 Any Excess Amount attributed to this Plan will be disposed in the
manner described in Section 7.04.
(This Section applies only to Employers who, in addition to this
Plan, maintain one or more qualified defined contribution plans
other than a Master or Prototype Plan.)
7.11 If the Employer also maintains another qualified defined
contribution plan which is not a Master or Prototype Plan, Annual
Additions which may be credited to any Participant's Accounts
under this Plan for any Limitation Year will be limited in
accordance with Sections 7.05 through 7.10 as though the other
plan were a Master or Prototype Plan unless the Employer provides
other limitations in Article VII of the Adoption Agreement.
(This Section applies to Employers who, in addition to this Plan,
maintain or have maintained a defined benefit plan covering any
Participant in this Plan.)
7.12 If the Employer maintains, or at any time maintained, a qualified
defined benefit plan covering any Participant in this Plan, the
sum of the Participant's defined benefit plan fraction and defined
contribution plan fraction will not exceed 1.0 in any Limitation
Year. The Annual Additions which may be credited to the
Participant's Account under this Plan for any Limitation Year will
be limited in accordance with Article VII of the Adoption
Agreement.
(Section 7.13 - 7.23 are definitions used in this Article VII.)
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<PAGE> 48
7.13 Annual Additions - The sum of the following amounts credited to a
Participant's Accounts for the Limitation Year:
(a) Employer Contributions (including Salary Savings
Contributions);
(b) employee contributions;
(c) forfeitures;
(d) amounts allocated, after March 31, 1984, to an
individual medical account, as defined in Section
415(l)(2) of the Internal Revenue Code, which is part of
a pension or annuity plan maintained by the Employer,
are treated as Annual Additions to a defined
contribution plan. Also, amounts derived from
contributions paid or accrued after December 31, 1985,
in taxable years ending after such date, which are
attributable to post-retirement medical benefits
allocated to the separate account of a Key Employee, as
defined in Code Section 419A(d)(2), under a welfare
benefit fund, as defined in Code Section 419(e),
maintained by the Employer, are treated as Annual
Additions to a defined contribution plan; and
(e) allocations under a simplified employee pension.
For this purpose, any Excess Amount applied under Sections 7.04 or
7.10 in the Limitation Year to reduce Employer contributions will
be considered Annual Additions for such Limitation Year.
7.14 Compensation - For purposes of this Article VII, Compensation
means a Participant's Section 3401(a) wages, Section 6041/etc.
compensation or Section 415 safe-harbor compensation (as such
terms are defined in Section 2.06), whichever is elected by the
Employer in Section 2.06 of the Adoption Agreement.
For any Self-Employed Individual, Compensation means Earned Income.
For Limitation Years beginning after December 31, 1991, for
purposes of applying the limitations of this Article, Compensation
for a Limitation Year is the Compensation actually paid or made
available during such Limitation Year.
7.15 Defined Benefit Fraction - A fraction, the numerator of which is
the sum of the Participant's Projected Annual Benefits under all
the defined benefit plans (whether or not terminated) maintained
by the Employer, and the denominator of which is the lesser of 125
percent of the dollar limitation determined for the Limitation
Year under Section 415(b) and (d) of the Internal Revenue Code or
140 percent of the Highest Average Compensation, including any
adjustments under Section 415(b) of the Code.
Notwithstanding the above, if the Participant was a Participant as
of the first day of the first Limitation Year beginning after
December 31, 1986, in one or more defined benefit plans maintained
by the Employer which were in existence on May 6, 1986, the
denominator of this fraction will not be less than 125 percent of
the sum of the annual benefits under such plans which the
Participant had accrued as of the close of the last Limitation
Year beginning before January 1, 1987, disregarding any changes in
the terms and conditions of the Plan after, May 5, 1986. The
preceding sentence applies only if the defined benefit plans
individually and in the aggregate satisfied the requirements of
Section 415 for all Limitation Years beginning before January 1,
1987.
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<PAGE> 49
Notwithstanding the foregoing, for any Top Heavy Plan Year, 100
percent shall be substituted for 125 percent unless the extra
minimum allocation is made pursuant to Section 4.02 of the Plan.
However, for any Plan Year in which this Plan is a Super Top Heavy
Plan, 100 percent shall be substituted for 125 percent in any
event.
7.16 Defined Contribution Dollar Limitation - $30,000 or, if greater,
one-fourth of the defined benefit dollar limitation set forth in
Section 415(b)(1) of the Code in effect for the Limitation Year.
7.17 Defined Contribution Fraction - A fraction, the numerator of which
is the sum of the Annual Additions to the Participant's Accounts
under all the defined contribution plans (whether or not
terminated) maintained by the Employer for the current and all
prior Limitation Years (including the Annual Additions
attributable to the Participant's nondeductible employee
contributions to all defined benefit plans, whether or not
terminated, maintained by the Employer and the Annual Additions
attributable to all welfare benefit funds, individual medical
accounts, and simplified employee pensions maintained by the
Employer), and the denominator of which is the sum of the maximum
aggregate amounts for the current and all prior Limitation Years
of service with the Employer (regardless of whether a defined
contribution plan was maintained by the Employer). The maximum
aggregate amount in any Limitation Year is the lesser of 125
percent of the dollar limitation determined under Code Sections
415(b) and (d) in effect under Section 415(c)(1)(A) of the Code or
35 percent of the Participant's Compensation for such year.
If the Employee was a Participant as of the end of the first day
of the first Limitation Year beginning after December 31, 1986, in
one or more defined contribution plans maintained by the Employer
which were in existence on May 6, 1986, the numerator of this
fraction will be adjusted if the sum of this fraction and the
defined benefit fraction would otherwise exceed 1.0 under the
terms of this Plan. Under the adjustment, an amount equal to the
product of (1) the excess of the sum of the fractions over 1.0
times (2) the denominator of this fraction, will be permanently
subtracted from the numerator of this fraction. The adjustment is
calculated using the fractions as they would be computed as of the
end of the last Limitation Year beginning before January 1, 1987,
and disregarding any changes in the terms and conditions of the
Plan made after May 6, 1986, but using the Section 415 limitation
applicable to the first Limitation Year beginning on or after
January 1, 1987.
The Annual Addition for any Limitation Year beginning before
January 1, 1987, shall not be recomputed to treat all employee
contributions as Annual Additions.
Notwithstanding the foregoing, for any Top Heavy Plan Year, 100
percent shall be substituted for 125 percent unless the extra
minimum allocation is made pursuant to Section 4.02. However, for
any Plan Year in which this Plan is a Super Top Heavy Plan, 100
percent shall be substituted for 125 percent in any event.
7.18 Employer - For purposes of this Article, Employer shall mean the
Employer that adopts this Plan and all members of a controlled
group of corporations (as defined in Code Section 414(b)) as
modified by Code Section 415(h), all trades or businesses under
common control (as defined in Code Section 414(c) as modified by
Code Section 415(h)), or all members of an affiliated service
group (as defined in Code Section 414(m)) of which the adopting
Employer is a part, and any other entity required to be aggregated
with the Employer pursuant to Regulations under Code Section
414(o).
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7.19 Excess Amount - The excess of the Participant's Annual Additions
for the Limitation Year over the Maximum Permissible Amount.
7.20 Highest Average Compensation - The average Compensation for the
three consecutive Years of Service with the Employer that produce
the highest average. A Year of Service with the Employer is the
12-consecutive month period defined in Section 2.53 of the Plan.
7.21 Master or Prototype Plan - A plan the form of which is the subject
of a favorable opinion letter from the Internal Revenue Service.
7.22 Maximum Permissible Amount - The lesser of $30,000 (or, beginning
January 1, 1988, such larger amount determined by the Commissioner
for the Limitation Year). The maximum Annual Addition that may be
contributed or allocated to a Participant's Account under the Plan
for any Limitation Year shall not exceed the lesser of:
(a) the Defined Contribution Dollar Limitation; or
(b) 25 percent of the Participant's Compensation for the
Limitation Year.
The Compensation limitation referred to in (b) shall not apply to
any contribution for medical benefits (within the meaning of
Section 401(h) or Section 419A(f)(2) of the Code) which is
otherwise treated as an Annual Addition under Section 415(c)(1) or
419A(d)(2) of the Code.
If a short Limitation Year is created because of an amendment
changing the Limitation Year to a different 12-consecutive month
period, the maximum permissible amount will not exceed the Defined
Contribution Dollar Limitation multiplied by the following
fraction:
Number of months in the short Limitation Year
12
7.23 Projected Annual Benefit - The annual retirement benefit (adjusted
to an actuarially equivalent straight life annuity if such benefit
is expressed in a form other than a straight life annuity or
qualified joint and survivor annuity) to which the Participant
would be entitled under the terms of the Plan assuming:
(a) the Participant will continue employment until Normal
Retirement Age under the Plan (or current Age, if
later), and
(b) the Participant's Compensation for the current
Limitation Year and all other relevant factors used to
determine benefits under the plan will remain constant
for all future Limitation Years.
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ARTICLE VIII
401(k) SALARY SAVINGS CONTRIBUTION LIMITATIONS AND REFUNDS
8.01 DEFINITIONS - For purposes of this Article, the following
definitions shall apply:
(a) "Actual Deferral Percentage" means the ratio (expressed
as a percentage) of Salary Savings Contributions, made
on behalf of an Eligible Participant, to that
Participant's Compensation for the Plan Year (but
INCLUDING compensation disregarded through an election
of Section 2.06(d) of the Adoption Agreement (in the
case of a Non-Standardized Plan) and EXCLUDING
Compensation prior to the date of Plan participation if
so specified in Section 2.06 of the Adoption Agreement).
Two Actual Deferral Percentages shall be calculated and
used, one including and the second excluding any Salary
Savings Contributions that are included in the
Contribution Percentage of the Participant as defined in
Section 9.01(b). The Plan Administrator may include
401(k) Employer Contributions and 401(k) Employer Match
Contributions made for the Participant in the above
described numerator, if such inclusion is made on a
uniform nondiscriminatory basis for all Participants;
however, 401(k) Employer Match Contributions that are
included in the Actual Deferral Percentage of the
Participant may not be included in the numerator of the
Contribution Percentage of the Participant as defined in
Section 9.01(b). To be considered as contributed for a
given Plan Year for purposes of inclusion in a given
Actual Deferral Percentage, Contributions must be made
by the end of the 12 month period immediately following
that given Plan Year.
For purposes of determining the Actual Deferral
Percentage of a Highly Compensated Employee who is
either: (1) a Five Percent Owner; or (2) one of the ten
most Highly Compensated Employees for the current Plan
Year, the Salary Savings Contribution of any Family
Member of the Participant shall be included in the
numerator, the compensation of any such Family Member
shall be included in the denominator, and the resulting
fraction shall be considered as being for one Highly
Compensated Employee. Additionally, the 401(k) Employer
Contributions and 401(k) Employer Match Contributions
made on behalf of each Family Member shall be included
in the numerator, if such contributions are being
included in the numerators for all Eligible Participants
on a uniform nondiscriminatory basis.
Additionally, if one or more other plans allowing
contributions under Code Section 401(k) are considered
with this Plan as one for purposes of Code Section
401(a)(4) or 410(b), the Actual Deferral Percentages for
all Eligible Participants under all such plans shall be
determined as if this Plan and all such other plans were
one; for Plan Years beginning after 1989, such plans
must have the same Plan Year. If any Highly Compensated
Employee is also an Eligible Participant in one or more
other plans allowing contributions under Code Section
401(k), the Actual Deferral Percentage for that Employee
shall be determined as if this Plan and all such other
plans were one; if such plans have different Plan Years,
the Plan Years ending with or within the same calendar
year shall be used.
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(b) "Aggregate Limit" means the sum of:
(i) (A) 125 percent of the greater of the Average
Actual Deferral Percentage (ADP) of the
Non-Highly Compensated Employees for the
Plan Year, or the Average Contribution
Percentage (ACP) (as described in Article
IX) of the Non-Highly Compensated
Employees under the Plan subject to Code
Section 401(m) for the Plan Year; and
(B) two plus the lesser of such ADP or ACP.
In no event, however, shall this amount
exceed 200 percent of the lesser of the
relevant ADP or the relevant ACP.
(ii) (A) 125 percent of the lesser of the ADP of
the Non-Highly Compensated Employees for
the Plan Year, or the ACP (as described in
Article IX) of the Non-Highly Compensated
Employees under the Plan subject to Code
Section 401(m) for the Plan Year; and
(B) two plus the greater of such ADP or ACP.
In no event, however, shall this amount
exceed 200 percent of the greater of the
relevant ADP or the relevant ACP.
(c) "Average Actual Deferral Percentage" means the average
(expressed as a percentage) of the Actual Deferral
Percentages of a group.
(d) "Eligible Participant" means a Participant eligible to
have Salary Reduction Contributions made on his behalf.
(e) "Excess 401(k) Contributions" means the excess of: (i)
the numerator of the Actual Deferral Percentage of a
Highly Compensated Employee over (ii) the maximum
numerator permitted under Section 8.02, determined by
reducing the numerators of Highly Compensated Employees
in order of their Actual Deferral Percentages beginning
with the highest of such percentages.
(f) "Excess Deferrals" means: (1) the excess of Salary
Reduction Contributions for any Participant over $7,000
or such other amount as is designated by the Secretary
of the Treasury as the limit under Code Section 402(g);
and (2) any amount identified in Section 8.06.
8.02 AVERAGE ACTUAL DEFERRAL PERCENTAGE TESTS - The Average Actual
Deferral Percentage for Highly Compensated Employees for each Plan
Year and the Average Actual Deferral Percentage for Non-Highly
Compensated Employees for the same Plan Year must satisfy one of
the following tests:
(a) The Average Actual Deferral Percentage for Eligible
Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the Average Actual
Deferral Percentage for Eligible Participants who are
Non-Highly Compensated Employees for the Plan Year
multiplied by 1.25; or
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(b) The Average Actual Deferral Percentage for Eligible
Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the Average Actual
Deferral Percentage for Eligible Participants who are
Non-Highly Compensated Employees for the Plan Year
multiplied by 2, provided that the Average Actual
Deferral Percentage for Eligible Participants who are
Highly Compensated Employees does not exceed the Average
Actual Deferral Percentage for Eligible Participants who
are Non-Highly Compensated Employees by more than two
(2) percentage points.
If one or more Highly Compensated Employees has an Actual Deferral
Percentage and a Contribution Percentage under this or any other
plan maintained by the Employer, both the Average Actual Deferral
and Average Contribution Percentages for Highly Compensated
Employees are greater than 125% of the Average Actual Deferral or
Average Contribution Percentage for Non Highly Compensated
Employees, respectively, and the sum of the Average Actual
Deferral and Actual Contribution Percentages for Highly
Compensated Employees exceeds the Aggregate Limit, then the
Average Actual Deferral Percentage of the Highly Compensated
Employees shall be reduced until the limit is not so exceeded, by
reducing the numerators of Highly Compensated Employees in the
order of their Actual Deferral Percentage beginning with the
highest of such percentages. The amount by which any numerator is
so reduced shall be treated as an Excess 401(k) Contribution.
8.03 REFUND OF EXCESS 401(k) CONTRIBUTIONS - Notwithstanding any other
provision of this Plan except Section 8.05, Excess 401(k)
Contributions, plus any income and minus any loss allocable
thereto that are attributable to Salary Savings Contributions and
401(k) Employer Contributions shall be distributed to the affected
Participant. The income or loss allocable to Excess 401(k)
Contributions shall be the income or loss allocable to the 401(k)
Contributions for the Plan Year multiplied by a fraction, the
numerator of which is the Participant's Excess 401(k)
Contributions for the Plan Year and the denominator of which is
the sum of all Accounts of the contribution types to which Excess
401(k) Contributions have been attributed as of the beginning of
the Plan Year and the sum of such contribution types made during
the Plan Year, determined without regard to any income or loss
occurring during such Plan Year. The Plan Administrator shall
make every effort to make all required distributions and
forfeitures within 2 1/2 months of the end of the affected Plan
Year; however, in no event shall such distributions be made later
than the end of the following Plan Year. Distributions and
forfeitures made later than 2 1/2 months after the end of the
affected Plan Year will be subject to tax under Code Section 4979.
Excess 401(k) Contributions of Participants who are subject to the
family member aggregation rules of Code Section 414(q)(6) shall be
allocated among the family members in proportion to the Elective
Deferrals (and amounts treated as Elective Deferrals) of each
family member that are combined to determine the combined Actual
Deferral Percentage.
All forfeitures arising under this Section shall be applied or
allocated as specified in Section 5.03 of the Adoption Agreement
and treated as arising in the Plan Year after that in which the
Excess 401(k) Contributions were made; however, no forfeitures
arising under this Section shall be allocated to the Account of
any affected Highly Compensated Employee.
For a period of four, 12-month periods beginning from the given
Plan Year, or such other period as the Secretary of the Treasury
may designate, the Employer shall maintain records showing what
contributions and compensation were used to satisfy this Section
and Section 8.02.
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8.04 ACCOUNTING FOR EXCESS 401(k) CONTRIBUTIONS - Amounts distributed
under this Article shall be treated as being made from Salary
Savings Contributions, 401(k) Employer Contributions and 401(k)
Employer Match Contributions as determined on a uniform
nondiscriminatory basis by the Plan Administrator.
8.05 SPECIAL 401(k) EMPLOYER CONTRIBUTIONS - Notwithstanding any other
provisions of this Plan except Section 8.09, in lieu of
distributing Excess 401(k) Contributions as provided in Section
8.03, the Employer may make 401(k) Employer Contributions and/or
401(k) Employer Match Contributions on behalf of Non-Highly
Compensated Employees that are sufficient to satisfy either of the
Average Actual Deferral Percentage Tests; any such 401(k) Employer
Contributions must be allocated among the Non-Highly Compensated
Employees in the ratio in which each such Participant's
Compensation for the Plan Year bears to the total Compensation for
such Participants for the Plan Year (subject to any limitations in
accordance with Section 8.01).
8.06 MAXIMUM SALARY SAVINGS CONTRIBUTIONS - No Employee shall be
permitted to have Salary Savings Contributions made under this
Plan, or any other qualified plan of the Employer, during any
calendar year in excess of $7,000 (or such other amount as is
designated by the Secretary of the Treasury as the limit under
Code Section 402(g)).
8.07 PARTICIPANT CLAIMS - Participants under other plans described in
Code Sections 401(k), 408(k) or 403(b) may submit a claim to the
Plan Administrator specifying the amount of their Excess Deferral.
Such claim shall: (1) be in writing; (2) be submitted no later
than March 1 of the year after the Excess Deferral was made; and
(3) state that such amount, when added to amounts deferred under
other plans described in Code Sections 401(k), 408(k) or 403(b),
exceeds $7,000 (or such other amount as the Secretary of the
Treasury may designate).
8.08 DISTRIBUTION OF EXCESS DEFERRALS - Notwithstanding any other
provision of this Plan, Excess Deferrals and income allocable
thereto shall be distributed to the affected Participant no later
than the April 15 following the calendar year in which such Excess
Deferrals were made. Income or loss allocable to Excess Deferrals
shall be the income or loss allocable to Salary Savings
Contributions for the Plan Year multiplied by a fraction, the
numerator of which is the Participant's Excess Deferrals for the
Plan Year and the denominator of which is the Participant's Salary
Savings Contribution Account as of the beginning of the Plan Year
and the sum of such contribution types made during the Plan Year,
determined without regard to any income or loss occurring during
such Plan Year. If a Participant does not notify the Plan of his
or her Excess Deferrals, the Participant shall be "deemed" to have
made Excess Deferrals based on deferrals allocated under the Plan
and to other plans of the same Employer and the Employer shall
notify the Plan of such Excess Deferrals.
8.09 OPERATION IN ACCORDANCE WITH REGULATIONS - The determination and
treatment of Actual Deferral Percentages and Excess 401(k)
Contributions, and the operation of the Average Actual Deferral
Percentage Test shall be in accordance with such additional
requirements as may be prescribed by the Secretary of the
Treasury.
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ARTICLE IX
EMPLOYEE CONTRIBUTIONS AND EMPLOYER MATCH CONTRIBUTIONS -
LIMITATIONS, REFUNDS AND FORFEITURES
9.01 DEFINITIONS - For purposes of this Article, the following
Definitions shall be used:
(a) "Average Contribution Percentage" means the average
(expressed as a percentage) of the Contribution
Percentages of a group.
(b) "Contribution Percentage" means the ratio (expressed as
a percentage) of: the Salary Savings, Voluntary
After-Tax, 401(k) Employer Match and Regular 401(a)
Employer Match Contributions made on behalf of the
Participant to the Participant's Compensation for the
Plan Year (but INCLUDING Compensation disregarded
through an election of Section 2.06(e) of the Adoption
Agreement (in the case of a Non-Standardized Plan) and
EXCLUDING Compensation prior to the date of Plan
participation if so specified in Section 2.06 of the
Adoption Agreement). The Plan Administrator may include
401(k) Employer Contributions for the Participant in the
above described numerator, if such inclusion is made on
a uniform nondiscriminatory basis for all Participants.
To be considered as contributed for a given Plan Year
for purposes of inclusion in a given Contribution
Percentage, Contributions must be made by the end of the
twelve-month period immediately following that given
Plan Year. The Plan Administrator may not include
401(k) Employer Match Contributions in the numerator to
the extent such Contributions are included in the
numerator of the Actual Deferral Percentage of the
Participant, as defined in Section 8.01(a), and may not
include Salary Savings Contributions unless Section 8.02
can be satisfied by both including and excluding such
Salary Savings Contributions.
For purposes of determining the Contribution Percentage
of a Highly Compensated Employee who is either: (i) a
Five Percent Owner; or (2) one of the ten most Highly
Compensated Employees for the current Plan Year, the
Salary Savings Contributions of any Family Member of the
Participant and the 401(k) and Regular Employer Match
Contributions made on behalf of such Family Member shall
be included in the numerator, and the Compensation of
any such Family Member shall be included in the
denominator. Additionally, the 401(k) Employer
Contributions and Salary Savings Contributions made for
such Family Member shall be included in the numerator,
if such contributions are being included in the
numerators of all Eligible Participants on a uniform
basis.
Additionally, if one or more other plans allowing
contributions under Code Section 401(k), after tax
employee contributions or employer matching
contributions are considered with this Plan as one for
purposes of Code Section 401(a)(4) or 410(b), the
Contribution Percentages for all Eligible Participants
under all such plans shall be determined as if this Plan
and all such other plans were one; for Plan Years
beginning after 1989, such Plans must have the same Plan
Year.
If any Highly Compensated Employee is also an Eligible
Participant in one or more other plans allowing
contributions under Code Section 401(k), after-tax
employee contributions or employer matching
contributions, the Contribution Percentage for that
Employee shall
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be determined as if this Plan and all such other plans
were one; if such plans have different Plan Years, the
Plan Years ending with or within the same calendar year
shall be used.
Any 401(k) or 401(a) Employer Match Contribution
matching an Excess 401(k) Contribution shall be treated
as a forfeiture.
(c) "Eligible Participant" means a Participant eligible to
have Salary Savings, Voluntary After-Tax or 401(k) or
Regular 401(a) Employer Matching Contributions made on
his or her behalf.
(d) "Excess 401(m) Contributions" means the excess of: (1)
the numerator of the Contribution Percentage of a Highly
Compensated Employee; over (2) the maximum numerator
permitted under Section 9.02 determined by reducing the
numerators of Highly Compensated Employees in order of
their Contribution Percentages beginning with the
highest of such Percentages.
9.02 AVERAGE CONTRIBUTION TESTS - The Average Contribution Percentage
for Highly Compensated Employees for each Plan Year and the
Average Contribution Percentage for Non-Highly Compensated
Employees for the same Plan Year must satisfy one of the following
tests:
(a) The Average Contribution Percentage for Eligible
Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the Average Contribution
Percentage for Eligible Participants who are Non-Highly
Compensated Employees for the Plan Year multiplied by
1.25; or
(b) The Average Contribution Percentage for Eligible
Participants who are Highly Compensated Employees for
the Plan Year shall not exceed the Average Contribution
Percentage for Eligible Participants who are Non-Highly
Compensated Employees for the Plan Year multiplied by 2,
provided that the Average Contribution Percentage for
Eligible Participants who are Highly Compensated
Employees does not exceed the Average Contribution
Percentage for Eligible Participants who are Non-Highly
Compensated Employees by more than two (2) percentage
points.
9.03 REFUND AND FORFEITURE OF EXCESS 401(m) CONTRIBUTIONS -
Notwithstanding any other provision of this Plan except Sections
9.05 and 9.06, Excess 401(m) Contributions and income allocable
thereto treated as Salary Savings, Voluntary After-Tax, 401(k)
Employer Match or 401(k) Employer Contributions shall be
distributed to the affected Highly Compensated Employee. Excess
401(m) Contributions and income allocable thereto treated as
401(a) Employer Match Contributions shall be forfeited or
distributed in accordance with Section 13.01(b). Income or loss
allocable to Excess 401(m) Contributions shall be income or loss
allocable to the aforementioned accounts for the Plan Year
multiplied by a fraction, the numerator of which is the
Participant's Excess 401(m) Contributions for the Plan Year and
the denominator of which is the sum of all Accounts of the
contribution types to which Excess 401(m) Contributions have been
attributed as of the beginning of the Plan Year and the sum of
such contribution types made during the Plan Year, determined
without regard to any income or loss occurring during such Plan
Year. The Plan Administrator shall make every effort to refund
and forfeit all Excess 401(m) Contributions within 2 1/2 months of
the end of the affected Plan Year; however, in no
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event shall Excess 401(m) Contributions be refunded or forfeited
later than the end of the following Plan Year. Excess 401(m)
Contributions of Participants who are subject to the family member
aggregation rules of Section 414(q)(6) of the Code shall be
allocated among the family members in proportion to the Employee
and Employer Match Contributions (or amounts treated as Employer
Match Contributions) of each family member that is combined to
determine the combined Actual Contribution Percentage. If such
Excess 401(m) Contributions are distributed more than 2 1/2 months
after the last day of the Plan Year in which such excess amounts
arose, a ten (10) percent excise tax will be imposed on the
Employer maintaining the Plan with respect to those amounts.
Excess 401(m) Contributions shall be treated as Annual Additions
under the Plan.
All forfeitures arising under this Section shall be applied or
allocated as specified in Section 5.03 of the Adoption Agreement
and treated as arising in the Plan Year after that in which the
Excess 401(m) Contributions were made; however, no forfeitures
arising under this Section shall be allocated to the Account of
any affected Highly Compensated Employee.
For a period of four, 12-month periods beginning from the given
Plan Year, or such other period as the Secretary of the Treasury
may designate, the Employer shall maintain records showing what
contributions and compensation were used to satisfy this Section
and Section 8.02.
9.04 ACCOUNTING FOR EXCESS 401(m) CONTRIBUTIONS - Amounts distributed
and forfeited under this Article shall be treated as being made
from 401(k) and 401(a) Employer Match Contributions and 401(k)
Employer Contributions as determined on a uniform
nondiscriminatory basis by the Plan Administrator.
9.05 SPECIAL 401(k) EMPLOYER CONTRIBUTIONS - Notwithstanding any other
provisions of this Plan except Section 9.08, in lieu of refunding
or forfeiting Excess 401(m) Contributions as provided in Section
9.03, the Employer may make 401(k) Employer Contributions,
allocated among Non-Highly Compensated Employees in the ratio in
which each such Participant's Compensation for the Plan Year bears
to the total Compensation for such Participants for the Plan Year
(subject to any limitations in accordance with Section 9.01).
9.06 SPECIAL EMPLOYER MATCH CONTRIBUTIONS - Notwithstanding any other
provision of this Plan except Section 9.08, in lieu of refunding
or forfeiting Excess 401(m) Contributions as provided in Section
9.03, the Employer may make 401(k) or 401(a) Employer Match
Contributions on behalf of Non-Highly Compensated Employees that
are sufficient to satisfy either of the Average Contribution
Tests.
9.07 ORDER OF DETERMINATIONS - The determination of Excess 401(m)
Contributions shall be made after first determining Excess
Deferrals, and then determining Excess 401(k) Contributions.
9.08 OPERATION IN ACCORDANCE WITH REGULATIONS - The determination and
treatment of Contribution Percentages and Excess 401(m)
Contributions, and the operation of the Average Contribution
Percentage Test shall be in accordance with such additional
requirements as may be prescribed by the Secretary of the
Treasury.
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ARTICLE X
IN-SERVICE WITHDRAWALS
10.01 WITHDRAWALS OF TAX DEDUCTIBLE VOLUNTARY CONTRIBUTIONS, AFTER-TAX
CONTRIBUTIONS AND ROLLOVER CONTRIBUTIONS - A Participant shall
have the right at any time to request the Plan Administrator for a
withdrawal in cash of amounts in his Tax Deductible Voluntary
Contribution Account or Voluntary After-Tax Contribution Account.
Withdrawals of Voluntary After-Tax Contributions will be subject
to Section 4.04.
In the case of a Profit Sharing or 401(k) Plan, if elected by the
Employer in Section 10.01 of the Adoption Agreement, a Participant
shall also have the right at any time (or at any time after he
attains Age 59 1/2, if so specified by the Employer in the
Adoption Agreement) to request the Plan Administrator for a
withdrawal in cash of amounts in his Rollover Account, subject to
Section 18.01.
10.02 WITHDRAWALS AFTER AGE 59 1/2; WITHDRAWALS FROM 401(k) ACCOUNTS -
In the case of a Profit Sharing or 401(k) Plan, if and to the
extent permitted by the Employer in Section 10.02 of the Adoption
Agreement, a Participant may request a withdrawal of all or a
portion of his vested Accrued Benefit for any reason at any time
after he attains Age 59 1/2. In the case of a 401(k) Account, a
Participant shall have the right at any time to request the Plan
Administrator for a withdrawal in cash of Salary Savings
Contributions (and earnings thereon accrued as of December 31,
1988) for "financial hardship". The Retirement Plan Committee
shall determine whether an event constitutes a financial hardship.
Such determination shall be based upon non-discriminatory rules
and procedures adopted by the Committee, which shall be conclusive
and binding upon all persons. Such procedures shall specify the
requirements for requesting and receiving distributions on account
of hardship, including what forms must be submitted and to whom.
Hardship distributions are subject to the spousal consent
requirements contained in Sections 401(a)(11) and 417 of the Code.
The processing of applications and any distributions of amounts
under this Section shall be made as soon as administratively
feasible. The amount of a distribution based upon "financial
hardship," cannot exceed the amount required to meet the immediate
financial need created by the hardship (and not reasonably
available from other resources of the Participant), plus any
amounts estimated to be necessary to pay any federal, state or
local income taxes or penalties reasonably anticipated to result
from such distribution.
In order to qualify as a hardship distribution, a distribution
must be made on account of an immediate and heavy financial need
and must be necessary to satisfy that need. A distribution will
be deemed to be on account of an immediate and heavy financial
need if made to satisfy the following expenditures:
(a) Medical expenses (as described in Code Section 213(d))
previously incurred by the Employee or his or her spouse
and dependents (as defined in Code Section 152) or
necessary for such persons to obtain medical care (as
described in Code Section 213(d));
(b) Purchase of a principal residence for the Employee
(excluding mortgage payments);
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(c) Payment of tuition and related educational fees for the
next 12 months of post-secondary education for the
Employee, his or her spouse, children or dependents;
(d) Expenditures to avoid eviction from or foreclosure on
the Employee's principal residence.
A distribution will be considered as necessary to satisfy an
immediate and heavy financial need of the Employee only if:
(i) The Employee has obtained all distributions, other than
hardship distributions, and all nontaxable loans under
all plans maintained by the Employer;
(ii) All Plans maintained by the Employer provide that the
Employee's elective deferrals (and Employee
Contributions) will be suspended for twelve months after
the receipt of the hardship distribution; and
(iii) All Plans maintained by the Employer provide that the
Employee may not make elective deferrals for the
Employee's taxable year immediately following the
taxable year of the hardship distribution in excess of
the applicable limit under section 402(g) of the Code
for such taxable year less the amount of such Employee's
elective deferrals for the taxable year of the hardship
distribution.
10.03 RULES FOR IN-SERVICE WITHDRAWALS - The Plan Administrator may
impose a dollar minimum for partial withdrawals. If the amount in
the Participant's appropriate Account is less than the minimum,
the Plan Administrator shall pay the Participant the entire vested
amount then in the Participant's Account from which the withdrawal
is to be made if a withdrawal of the entire amount is otherwise
permissible under the rules set forth in this Article. If the
entire amount cannot be paid under such rules, whatever amount is
permissible shall be paid.
Any amount to be withdrawn shall be paid within 90 days following
the date written request therefor is received by the Plan
Administrator. All requests must be consented to by the
Participant's spouse in a Qualified Election as described in
Section 12.08(c)(iii), unless the withdrawal is from the
Participant's Tax Deductible Voluntary Contribution Account or an
account to which Section 12.08(e) applies. Notwithstanding the
foregoing, any request for a withdrawal of amounts allocated to a
group annuity contract shall be subject to any time limits,
restrictions or penalties that may be provided in the contract.
If a distribution is made at a time when a Participant has a
nonforfeitable right to less than 100 percent of the Account
balance derived from Employer contributions and the Participant
may increase the nonforfeitable percentage in the Account:
(a) A separate account will be established for the
Participant's interest in the Plan as of the time of the
distribution, and
(b) At any relevant time the Participant's nonforfeitable
portion of the separate account will be equal to an
amount ("X") determined by the formula:
X = P(AB + (R X D)) - (R X D)
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For purposes of applying the formula: P is the nonforfeitable
percentage at the relevant time, AB is the Account balance at the
relevant time, D is the amount of the distribution, and R is the
ratio of the Account balance at the relevant time to the Account
balance after distribution.
ARTICLE XI
PARTICIPANT LOANS
11.01 GENERAL RULES - If and to the extent permitted by the Employer in
Section 11.01 of the Adoption Agreement, loans may be made to
Participants and Beneficiaries from time to time by the Trustee
when directed by the Plan Administrator upon the written request
of an eligible borrower. Loans will be made available to Former
Participants to the extent required by Regulations issued by the
Department of Labor under Section 408(b) of ERISA and to other
Former Participants to the extent required to satisfy Code Section
401(a)(4) and Regulations promulgated thereunder.
Applications for loans will be made to the Plan Administrator
using forms provided by the Plan Administrator. Loan applications
meeting the requirements of this Article will be granted. All
borrowers must execute a promissory note meeting the requirements
of this Article.
The minimum loan amount shall be as specified in the Adoption
Agreement and, in any event, shall not be greater than $1,000.
Plan loans shall be granted on a uniform nondiscriminatory basis.
Loans shall not be made available to Highly Compensated Employees
in an amount greater than the amount available to other Employees;
for this purpose a loan amount shall not be considered greater if
the maximum percentage of vested Accrued Benefit is not greater
for any Highly Compensated Employee than it is for any Non-Highly
Compensated Employee. Such loans shall be adequately secured,
shall be at a reasonable rate of interest and shall provide for
periodic payment over a reasonable amount of time. No loan shall
exceed the value of the borrower's vested Accrued Benefit. For
loans made after October 18, 1989, no more than 50% of a
borrower's vested Accrued Benefit (less any portion attributable
to Tax Deductible Voluntary Contributions) may be used as security
for a Plan loan. Other permissible forms of security include
assets that can be foreclosed upon, such that the value of the
asset, less any likely costs of perfecting a security interest in
the collateral and of foreclosure, can reasonably be expected to
always equal or exceed the value of the loan. The Plan
Administrator shall exercise discretion in accordance with Section
14.05 in determining if such other collateral is reasonable.
Notwithstanding the above, loans may not be made to an
Owner-Employee or a shareholder-employee if the loan is not
permissible under the applicable provisions of the Internal
Revenue Code or the Employee Retirement Income Security Act of
1974 (ERISA), as amended.
A "shareholder employee" is an employee or officer of an electing
small business (Subchapter S) corporation who owns (or is
considered as owning within the meaning of Code Section 318(a)(1),
on any day during the taxable year of such corporation, more than
five percent of the outstanding stock of such corporation.
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Tax Deductible Voluntary Contributions, plus earnings thereon, may
not be used as security for Plan loans.
11.02 LOAN AMOUNTS AND REPAYMENTS -
(a) No loan shall be made to the extent such loan exceeds an
amount equal to the lesser of (i) or (ii) below:
(i) $50,000 reduced by the excess (if any) of the
highest outstanding balance of loans to the
Participant from the Plan during the one-year
period ending on the day before the date on which
such loan was made over the outstanding balance
of loans from the Plan on the date on which such
loan was made; or
(ii) one-half (1/2) of the present value of the
nonforfeitable Accrued Benefit of the Participant
under the Plan.
(b) Loans shall require that repayment (principal and
interest) be amortized in level payments, not less
frequently than quarterly, over a period not to exceed
five (5) years; provided, however, that 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 may
provide for level repayment of principal and interest,
with payment to be no less frequent than quarterly, over
a reasonable period of time that exceeds five (5) years.
For purposes of the above limitation, all loans from all plans of
the Employer and other members of a group of employers described
in Code Sections 414(b), (c) and (m) are aggregated.
The Plan Administrator shall determine a reasonable rate of
interest for each loan by identifying the rate(s) charged for
similar and equivalent commercial loans by institutions in the
business of making loans.
Default shall occur upon the earlier of any uncured failure to
make payments in accordance with the promissory note or the death
of the borrower. In the event of default, attachment of all
assets securing the loan shall be made as soon as is
administratively feasible, except that no attachment of any part
of the borrower's Accrued Benefit shall occur until a
distributable event for that part of the borrower's Accrued
Benefit has occurred for such borrower.
Notwithstanding the foregoing, no loans may be made to a married
Participant in the absence of a valid spousal consent to such loan
in accordance with Section 12.08(c)(iii), if the loan is secured
by an Account other than one to which Section 12.08(e) applies.
Such consent must: be given within 90 days of the making of the
loan; be in writing; acknowledge the effect of the loan and be
witnessed by a Plan representative or a notary public. Such
consent shall be binding with respect to the consenting spouse and
any subsequent spouse with respect to that loan. A new consent
will be required if the Account balance is used for renegotiation,
extension, renewal, or other revision of the loan. If a valid
spousal consent has been obtained in accordance with the above
paragraph or is not needed because the loan is secured by an
Account to which Section 12.08(e) applies, then notwithstanding
any other provision of this Plan, the portion of the Participant's
vested Account balance used as a security interest held by the
Plan by reason of a loan outstanding to the
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Participant shall be taken into account for purposes of
determining the amount of the Account balance payable at the time
of death or distribution, but only if the reduction is used as
repayment of the loan. If less than 100% of the Participant's
vested Account balance (determined without regard to the preceding
sentence) is payable to the surviving spouse, then the Account
balance shall be adjusted by first reducing the vested Account
balance by the amount of the security used as repayment of the
loan, and then determining the benefit payable to the surviving
spouse.
ARTICLE XII
RETIREMENT AND DEATH BENEFITS
12.01 NORMAL RETIREMENT BENEFIT - Each Participant's Accrued Benefit
shall become 100% vested and nonforfeitable when the Participant
attains his Normal Retirement Age.
Every Participant may terminate his employment with the Employer
and retire upon the attainment of his Normal Retirement Age. Upon
such date all amounts credited to such Participant's Accounts
shall become distributable to him in accordance with this Article.
The Plan Administrator shall notify the Trustee when the Normal
Retirement Age of each Participant shall occur and shall also
advise the Trustee as to the manner in which retirement benefits
are to be distributed to a Participant, subject to the provisions
of this Article. Upon receipt of such notification and subject to
the other provisions of this Article, the Trustee shall take such
action as may be necessary in order to distribute the
Participant's Accrued Benefit.
12.02 EARLY RETIREMENT BENEFIT - If there shall be a termination of a
Participant's employment on or after he attains his Early
Retirement Age, if any, (as defined in Section 12.02 of the
Adoption Agreement), he shall be deemed to have retired early and
such Participant shall be 100% vested in the amount credited to
his Accounts as of the date of his early retirement.
12.03 LATE RETIREMENT BENEFIT - If a Participant shall continue in
active employment following his Normal Retirement Age, he shall
continue to participate under the Plan and Trust. Upon actual
retirement, such Participant shall be entitled to the amount then
credited to his Accounts.
12.04 DISABILITY BENEFIT - A Participant whose employment shall be
terminated prior to his Normal Retirement Age as a result of Total
and Permanent Disability shall be 100% vested in the amount
credited to his Accounts as of the date of such termination.
12.05 DEATH BENEFIT - If a Participant or Former Participant shall die
prior to the commencement of any benefit otherwise provided under
this Article XII, his Beneficiary shall be entitled to a death
benefit. The amount of the death benefit shall be equal to the
amount credited to his Participant's Accounts as of the date of
death, including the death proceeds of any Policies allocated to
such Accounts.
If a Participant shall die subsequent to the commencement of any
benefit otherwise provided under this Article XII, the death
benefit, if any, shall be determined in accordance with the
benefit option in effect for the Participant.
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The Plan 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 a deceased
Former Participant as the Plan Administrator deems necessary. The
Plan Administrator's determination of death and of the right of
any person to receive payment shall be conclusive and binding on
all persons.
12.06 DESIGNATION OF BENEFICIARY - Each Participant shall designate his
Beneficiary on a form or forms provided by the Plan Administrator,
and such designation may include primary and contingent
beneficiaries; provided, however, that if a Participant or Former
Participant is married on the date of his death, the Participant's
then spouse shall be the Participant's Beneficiary unless such
spouse consented to the designation of another Beneficiary in
accordance with Section 8.08. The proceeds of any life insurance
Policy shall be paid to the Trustee as beneficiary and the Trustee
shall pay over the proceeds to the appropriate Plan Beneficiary.
If a Participant does not designate a Beneficiary and is not
married on the date of his death, the estate of the Participant
shall be deemed to be the designated Beneficiary.
12.07 DISTRIBUTION OF BENEFITS - The Plan Administrator shall direct the
Trustee to make, or cause the Insurer to make, payment of any
benefits provided under this Article XII. The Plan Administrator
shall be solely responsible for determining eligibility for and
the amount of any such benefits, and the Trustee shall have no
obligation or duty to review any such determination.
Subject to Section 12.08, Joint and Survivor Annuity Requirements,
the requirements of this Section shall apply to any distribution
of a Participant's interest and will take precedence over any
inconsistent provisions of this Plan. Unless otherwise specified,
the provisions of this Section apply to calendar years beginning
after December 31, 1984.
All distributions required under the Plan shall be determined and
made in accordance with the proposed regulations under Code
Section 401(a)(9), including the minimum distribution incidental
benefit requirement of Section 1.401(a)(9)-2 of the proposed
regulations.
Unless the Participant elects otherwise, distribution of benefits
will begin no later than the 60th day after the latest of the
close of the Plan Year in which:
(a) the Participant attains Age 65 (or Normal Retirement
Age, if earlier);
(b) occurs the 10th anniversary of the year in which the
Participant commenced participation in the Plan; or,
(c) the Participant terminates service with the Employer.
Notwithstanding the foregoing, the failure of a Participant and
spouse to consent to a distribution when a benefit is immediately
distributable, within the meaning of Section 12.09 of the Plan,
shall be deemed to be an election to defer commencement of payment
of any benefit sufficient to satisfy this Section.
Except as provided below and in Section 12.09, in no event will
benefits begin to be distributed prior to the later of age 62 or
Normal Retirement Age without the consent of the Participant. The
consent of the Participant's spouse will also be required for any
such distribution unless (i) the
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Plan is a profit sharing plan described in Subsection 12.08(e) or
(ii) the benefit is paid in the form of a Qualified Joint and
Survivor Annuity.
The consent of neither the Participant nor his or her spouse is
required if the present value of the Participant's vested Accrued
Benefit does not exceed $3,500 (in the case of a Plan subject to
the Qualified Joint and Survivor Annuity Requirements of Section
12.08, if the present value of the vested Accrued Benefit exceeded
$3,500 at the time of any distribution, the present value of the
vested Accrued Benefit at any subsequent time till be deemed to
exceed $3,500). In such event the Plan Administrator shall pay
such benefit to the Participant or his Beneficiary in a lump sum
and no other settlement option shall be available. However,
unless the Plan is a plan described in Subsection 12.08(e), no
distribution shall be made pursuant to the preceding sentence
after the annuity starting date (as described in Subsection
12.08(c)) unless the Participant and his or her spouse (or the
Participant's surviving spouse) consent in writing to such
distribution. Except as provided in Sections 12.05 and 12.08, or,
to the extent an election of Section 12.07(b) of the Adoption
Agreement is effective, a Participant, with spousal consent where
applicable, shall have the sole right to receive this benefit in
accordance with one or more of the following ways, and which may
be paid in cash or in kind, or a combination of them:
(a) an annuity for the life of the Participant.
(b) an annuity for the life of the Participant and upon his
death 100%, 66 2/3% or 50% (whichever is specified when
this option is elected) of the annuity amount will be
continued to his contingent annuitant. No further
annuity benefits are payable after the death of both the
Participant and his contingent annuitant.
(c) an annuity for the joint lives of the Participant and
his joint annuitant with 100%, 66 2/3% or 50% (whichever
is specified when this option is elected) of such amount
payable as an annuity for life to the survivor. No
further benefits are payable after the death of both the
Participant and his joint annuitant.
(d) an annuity for the life of the Participant with
installment payments for a period certain not longer
than the life expectancy of the Participant.
(e) installment payments for a period certain not longer
than the life expectancy of the Participant and his
designated Beneficiary.
To the extent an election of Section 12.07(b) of the Adoption
Agreement is effective, a Participant, with spousal consent where
applicable, shall have the sole right to receive his or her
benefit in one sum, paid in cash or in kind or a combination
thereof.
All optional forms of benefit shall be actuarially equivalent.
If the Employer adopts a Non-standardized Profit Sharing Plan or a
Non-standardized 401(k) Plan, then such Employer may elect, at
Section 12.07(b) of the Adoption Agreement, to make distributions
in Employer stock as an optional form of payment pursuant to the
terms of the Addendum to Section 12.07(b) of the Adoption
Agreement, describing the procedures applicable to such
distributions as prepared by the Plan's legal counsel.
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If an annuity contract is purchased for and distributed to a
Participant or a Participant's spouse, the annuity contract must
be nontransferable. Any such annuity contract distributed shall
comply with the requirements of this Plan.
Notwithstanding the above:
(a) Required Beginning Date. The entire interest of a
Participant must be distributed or begin to be
distributed no later than the Participant's required
beginning date.
(b) Limits on Distribution Periods. As of the first
distribution calendar year, distributions, if not made
in a single-sum, may only be made over one of the
following periods (or a combination thereof):
(i) the life of the Participant,
(ii) the life of the Participant and a designated
Beneficiary,
(iii) a period certain not extending beyond the life
expectancy of the Participant, or
(iv) a period certain not extending beyond the joint
and last survivor expectancy of the Participant
and a designated Beneficiary.
(c) Determination of amount to be distributed each year. If
the Participant's interest is to be distributed in other
than a single sum, the following minimum distribution
rules shall apply on or after the required beginning
date:
(i) Individual account.
(A) If a Participant's benefit is to be
distributed over (1) a period not
extending beyond the life expectancy of
the Participant or the joint life and last
survivor expectancy of the Participant and
the Participant's designated Beneficiary,
or (2) a period not extending beyond the
life expectancy of the designated
Beneficiary, the amount required to be
distributed for each calendar year,
beginning with distributions for the first
distribution calendar year, must at least
equal the quotient obtained by dividing
the Participant's benefit by the
applicable life expectancy.
(B) For calendar years beginning before
January 1, 1989, if the Participant's
spouse is not the designated Beneficiary,
the method of distribution selected must
assure that at least 50% of the present
value of the amount available for
distribution is paid within the life
expectancy of the Participant.
(C) For calendar years beginning after
December 31, 1988, the amount to be
distributed each year, beginning with
distributions for the first distribution
calendar year shall not be less than the
quotient obtained by dividing the
Participant's benefit by the lesser of (1)
the applicable life expectancy or (2) if
the Participant's spouse is not the
designated Beneficiary, the applicable
divisor determined from the table set
forth in Q&A-4 of Section
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1.401(a)(9)-2 of the proposed regulations.
Distributions after the death of the
Participant shall be distributed using the
applicable life expectancy in Paragraph
(A) above as the relevant divisor without
regard to proposed regulations Section
1.401(a)(9)-2.
(D) The minimum distribution required for the
Participant's first distribution calendar
year must be made on or before the
Participant's required beginning date.
The minimum distribution for other
calendar years, including the minimum
distribution for the distribution calendar
year in which the Employee's required
beginning date occurs, must be made on or
before December 31 of that distribution
calendar year.
(d) Other forms.
(i) If the Participant's benefit is distributed in
the form of an annuity purchased from an
insurance company, distributions thereunder shall
be made in accordance with the requirements of
Section 401(a)(9) of the Code and the proposed
regulations thereunder.
(e) Death Distribution Provisions.
(i) Distribution beginning before death. If the
Participant dies after distribution of his or her
interest has begun, the remaining portion of such
interest will continue to be distributed at least
as rapidly as under the method of distribution
being used prior to the Participant's death.
(ii) Distribution beginning after death. If the
Participant dies before distribution of his or
her interest begins, distribution of the
Participant's entire interest shall be completed
by December 31 of the calendar year containing
the fifth anniversary of the Participant's death
except to the extent that an election is made to
receive distributions in accordance with (A) or
(B) below:
(A) if any portion of the Participant's
interest is payable to a designated
Beneficiary, distributions may be made
over the life or over a period certain not
greater than the life expectancy of the
designated Beneficiary commencing on or
before December 31 of the calendar year
immediately following the calendar year in
which the Participant died;
(B) if the designated Beneficiary is the
Participant's surviving spouse, the date
distributions are required to begin in
accordance with (A) above shall not be
earlier than the later of (1) December 31
of the calendar year immediately following
the calendar year in which the Participant
died, and (2) December 31 of the calendar
year in which the Participant would have
attained age 70 1/2.
If the Participant has not made an
election pursuant to this Paragraph (ii)
by the time of his or her death, the
Participant's designated Beneficiary must
elect the method of distribution no later
than the earlier of (1)
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December 31 of the calendar year in which
distributions would be required to begin
under this Section, or (2) December 31 of
the calendar year which contains the fifth
anniversary of the date of death of the
Participant. If the Participant has no
designated Beneficiary, or if the
designated Beneficiary does not elect a
method of distribution, distribution of
the Participant's entire interest must be
completed by December 31 of the calendar
year containing the fifth anniversary of
the Participant's death.
(iii) For purposes of Paragraph (ii) above, if the
surviving spouse dies after the Participant, but
before payments to such spouse begin, the
provisions of Paragraph (ii), with the exception
of Subparagraph (B) therein, shall be applied as
if the surviving spouse were the Participant.
(iv) For purposes of this Subsection (e), any amount
paid to a child of the Participant will be
treated as if it had been paid to the surviving
spouse if the amount becomes payable to the
surviving spouse when the child reaches the age
of majority.
(v) For the purposes of this Subsection (e),
distribution of a Participant's interest is
considered to begin on the Participant's required
beginning date (or, if Paragraph (iii) above is
applicable, the date distribution is required to
begin to the surviving spouse pursuant to
Paragraph (ii) above). If the distribution in
the form of an annuity described in paragraph
(d)(i) above irrevocably commences to the
Participant before the required beginning date,
the date distribution is considered to begin is
the date distribution actually commences.
(f) Definitions
(i) Applicable life expectancy. The life expectancy
(or joint and last survivor expectancy)
calculated using the attained age of the
Participant (or designated Beneficiary) as of the
Participant's (or designated Beneficiary's)
birthday in the applicable calendar year reduced
by one for each calendar year which has elapsed
since the date life expectancy was first
calculated. If life expectancy is being
recalculated, the applicable life expectancy
shall be the life expectancy as so recalculated.
The applicable calendar year shall be the first
distribution calendar year, and if life
expectancy is being recalculated, such succeeding
calendar year.
(ii) Designated Beneficiary. The individual who is
designated as the Beneficiary under the Plan in
accordance with Code Section 401(a)(9) and the
proposed Regulations thereunder.
(iii) Distribution calendar year. A calendar year for
which a minimum distribution is required. For
distributions beginning before the Participant's
death, the first distribution calendar year is
the calendar year immediately preceding the
calendar year which contains the Participant's
required beginning date. For distributions
beginning after the Participant's death, the
first distribution calendar year is the calendar
year in which distributions are required to begin
pursuant to Subsection (e) above.
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(iv) Life expectancy. Life expectancy and joint and
last survivor expectancy are computed by use of
the expected return multiples in Tables V and VI
of Section 1.72-9 of the Income Tax Regulations.
Unless otherwise elected by the Participant (or
spouse, in the case of distributions described in
Subparagraph (e)(ii)(B) above) by the time
distributions are required to begin, life
expectancies shall be recalculated annually.
Such election shall be irrevocable as to the
Participant (or spouse) and shall apply to all
subsequent years. The life expectancy of a
nonspouse Beneficiary may not be recalculated.
(v) Participant's benefit.
(A) The Account(s) balance(s) as of the last
Valuation Date in the calendar year
immediately preceding the distribution
calendar year (valuation calendar year)
increased by the amount of any
contributions or forfeitures allocated to
the Account(s) balance(s) as of dates in
the valuation calendar year after the
Valuation Date and decreased by
distributions made in the valuation
calendar year after the Valuation Date.
(B) Exception for second distribution calendar
year. For purposes of Subparagraph (A)
above, if any portion of the minimum
distribution for the first distribution
calendar year is made in the second
distribution calendar year on or before
the required beginning date, the amount of
the minimum distribution made in the
second distribution calendar year shall be
treated as if it had been made in the
immediately preceding distribution
calendar year.
(vi) Required beginning date.
(A) General rule. The required beginning date
of a Participant is the first day of April
of the calendar year following the
calendar year in which the Participant
attains age 70 1/2.
(B) Transitional rules. The required
beginning date of a Participant who
attains age 70 1/2 before January 1, 1988,
shall be determined in accordance with (1)
or (2) below:
(1) Non-5-percent owners. The
required beginning date of a
Participant who is not a
5-percent owner is the first day
of April of the calendar year
following the calendar year in
which the later of retirement or
attainment of age 70 1/2 occurs.
(2) 5-percent owners. The required
beginning date of a Participant
who is a 5-percent owner during
any year beginning after
December 31, 1979, is the first
day of April following the later
of:
(I) the calendar year in
which the Participant
attains age 70 1/2, or
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(II) the earlier of the
calendar year with or
within which ends the
Plan Year in which the
Participant becomes a
5-percent owner, or the
calendar year in which the
Participant retires.
The required beginning date of a
Participant who is not a
5-percent owner who attains age
70 1/2 during 1988 and who has
not retired as of January 1,
1989, is April 1, 1990.
(C) 5-percent owner. A Participant is treated
as a 5-percent owner for purposes of this
Section if such Participant is a 5-percent
owner as defined in Section 416(i) of the
Code (determined in accordance with Code
Section 416 but without regard to whether
the plan is top-heavy) at any time during
the Plan Year ending with or within the
calendar year in which such owner attains
age 66 1/2 or any subsequent Plan Year.
(D) Once distributions have begun to a
5-percent owner under this Section, they
must continue to be distributed, even if
the Participant ceases to be a 5-percent
owner in a subsequent year.
(g) Transitional Rule
(i) Notwithstanding the other requirements of this
Section 12.07 and subject to the requirements of
Section 12.08, Joint and Survivor Annuity
Requirements, distribution on behalf of any
Employee, including a 5-percent owner, may be
made in accordance with all of the following
requirements (regardless of when such
distribution commences):
(A) The distribution by the Trust is one which
would not have disqualified such Trust
under Section 401(a)(9) of the Internal
Revenue Code as in effect prior to
amendment by the Deficit Reduction Act of
1984.
(B) The distribution is in accordance with a
method of distribution designated by the
Employee whose interest in the Trust is
being distributed or, if the Employee is
deceased, by a Beneficiary of such
Employee.
(C) Such designation was in writing, was
signed by the Employee or the Beneficiary,
and was made before January 1, 1984.
(D) The Employee had accrued a benefit under
the Plan as of December 31, 1983.
(E) The method of distribution designated by
the Employee or the Beneficiary specifies
the time at which distribution will
commence, the period over which
distributions will be made, and in the
case of any distribution upon the
Employee's death, the Beneficiaries of the
Employee listed in order of priority. The
method of distribution selected must
assure that at least 50 percent of the
present value of the amount available for
distribution is paid within the life
expectancy of the Participant.
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(ii) A distribution upon death will not be covered by
this transitional rule unless the information in
the designation contains the required information
described above with respect to the distributions
to be made upon the death of the Employee.
(iii) For any distribution which commences before
January 1, 1984, but continues after December 31,
1983, the Employee, or the Beneficiary to whom
such distribution is being made, will be presumed
to have designated the method of distribution
under which the distribution is being made if the
method of distribution was specified in writing
and the distribution satisfies the requirements
in Subparagraphs (i)(A) and (E) above.
(iv) If a designation is revoked, any subsequent
distribution must satisfy the requirements of
Section 401(a)(9) of the Code and the proposed
regulations thereunder. If a designation is
revoked subsequent to the date distributions are
required to begin, the Trust must distribute by
the end of the calendar year following the
calendar year in which the revocation occurs the
total amount not yet distributed which would have
been required to have been distributed to satisfy
Section 401(a)(9) of the Code and the proposed
regulations thereunder, but for the Section
242(b)(2) election. For calendar years beginning
after December 31, 1988, such distributions must
meet the minimum distribution incidental benefit
requirements in Section 1.401(a)(9)-2 of the
proposed regulations. Any changes in the
designation will be considered to be a revocation
of the designation. However, the mere
substitution or addition of another Beneficiary
(one not named in the designation) under the
designation will not be considered to be a
revocation of the designation, so long as such
substitution or addition does not alter the
period over which distributions are to be made
under the designation, directly or indirectly
(for example, by altering the relevant measuring
life). In the case in which an amount is
transferred or rolled over from one plan to
another plan, the rules in Q&A J-2 and Q&A J-3 of
Section 1.401(a)(9)-1 of the proposed regulations
shall apply.
12.08 JOINT AND SURVIVOR ANNUITY REQUIREMENTS - The provisions of this
Section 12.08 shall apply to any Participant who is credited with
at least one Hour of Service with the Employer on or after August
23, 1984, and such other Participants as provided in Subsection
(e).
(a) Qualified Joint and Survivor Annuity.
Unless an optional form of benefit is selected pursuant
to a qualified election within the 90-day period ending
on the annuity starting date, a married Participant's
vested Account balance will be paid in the form of a
Qualified Joint and Survivor Annuity, as described in
Section 2.36, and an unmarried Participant's vested
Account balance will be paid in the form of a life
annuity. The Participant may elect to have such annuity
distributed upon attainment of the earliest retirement
age under the Plan.
(b) Qualified Preretirement Survivor Annuity.
Unless an optional form of benefit has been selected
within the election period pursuant to a qualified
election, if a Participant dies before the annuity
starting date, then the
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Participant's vested Account balance shall be applied
toward the purchase of an annuity for the life of the
surviving spouse. The surviving spouse may elect to
have such annuity distributed within a reasonable period
after the Participant's death.
(c) Definitions.
(i) Election period: The period which begins on the
first day of the Plan Year in which the
Participant attains age 35 and ends on the date
of the Participant's death. If a Participant
separates from service prior to the first day of
the Plan Year in which age 35 is attained, with
respect to the Account balance as of the date of
separation, the election period shall begin on
the date of separation.
Pre-Age 35 waiver: A Participant who will not
yet attain age 35 as of the end of any current
Plan Year may make a special qualified election
to waive the qualified preretirement survivor
annuity for the period beginning on the date of
such election and ending on the first day of the
Plan Year in which the Participant will attain
age 35. Such election shall not be valid unless
the Participant receives a written explanation of
the qualified preretirement survivor annuity in
such terms as are comparable to the explanation
required under paragraph (d)(i). Qualified
preretirement survivor annuity coverage will be
automatically reinstated as of the first day of
the Plan Year in which the Participant attains
age 35. Any new waiver on or after such date
shall be subject to the full requirements of this
Section 12.08.
(ii) Earliest retirement age: The earliest date on
which, under the Plan, the Participant could
elect to receive retirement benefits.
(iii) Qualified election: A waiver of a Qualified
Joint and Survivor Annuity or a qualified
preretirement survivor annuity. Any waiver of a
Qualified Joint and Survivor Annuity or a
qualified preretirement survivor annuity shall
not be effective unless: (A) the Participant's
spouse consents in writing to the election; (B)
the election designates a specific Beneficiary,
including any class of Beneficiaries or any
contingent Beneficiaries, which may not be
changed without spousal consent (or the spouse
expressly permits designations by the Participant
without any further spousal consent); (C) the
spouse's consent acknowledges the effect of the
election; and (D) the spouse's consent is
witnessed by a Plan representative or notary
public. Additionally, a Participant's waiver of
the Qualified Joint and Survivor Annuity shall
not be effective unless the election designates a
form of benefit payment which may not be changed
without spousal consent (or the spouse expressly
permits designations by the Participant without
any further spousal consent). If it is
established to the satisfaction of a Plan
representative that there is no spouse or that
the spouse cannot be located, a waiver will be
deemed a qualified election.
Any consent by a spouse obtained under this
provision (or establishment that the consent of a
spouse may not be obtained) shall be effective
only with respect to such spouse. A consent that
permits designations by the Participant without
any requirement of further consent by such spouse
must acknowledge that the spouse
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has the right to limit consent to a specific
Beneficiary, and a specific form of benefit where
applicable, and that the spouse voluntarily
elects to relinquish either or both of such
rights. A revocation of a prior waiver may be
made by a Participant without the consent of the
spouse at any time before the commencement of
benefits. The number of revocations shall not be
limited. No consent obtained under this
provision shall be valid unless the Participant
has received notice as provided in Subsection (d)
below.
(iv) Spouse (surviving spouse): The spouse or
surviving spouse of the Participant, provided
that a former spouse will be treated as the
spouse or surviving spouse to the extent provided
under a qualified domestic relations order as
described in Section 414(p) of the Internal
Revenue Code.
(v) Annuity starting date: The first day of the
first period for which an amount is paid as an
annuity or any other form.
(vi) Vested Account balance: The aggregate value of
the Participant's vested Accrued Benefit derived
from Employer and employee contributions
(including rollovers), whether vested before or
upon death, including the proceeds of insurance
contracts, if any, on the Participant's life.
The provisions of this Section 12.08 shall apply
to a Participant who is vested in amounts
attributable to Employer contributions, employee
contributions (or both) at the time of death or
distribution.
(d) Notice Requirements.
(i) In the case of a Qualified Joint and Survivor
Annuity as described in Subsection (a), the Plan
Administrator shall, no less than 30 days and no
more than 90 days prior to the annuity starting
date, provide each Participant a written
explanation of: (A) the terms and conditions of
a Qualified Joint and Survivor Annuity; (B) the
Participant's right to make and the effect of an
election to waive the Qualified Joint and
Survivor Annuity form of benefit; (C) the rights
of a Participant's spouse; and (D) the right to
make, and the effect of, a revocation of a
previous election to waive the Qualified Joint
and Survivor Annuity.
(ii) In the case of a qualified preretirement survivor
annuity as described in Subsection (b), the Plan
Administrator shall provide each Participant
within the applicable period for such Participant
a written explanation of the qualified
preretirement survivor annuity in such terms and
in such manner as would be comparable to the
explanation provided for meeting the requirements
of paragraph (d)(i) applicable to a Qualified
Joint and Survivor Annuity.
The applicable period for a Participant is
whichever of the following periods ends last: (A)
the period beginning with the first day of the
Plan Year in which the Participant attains age 32
and ending with the close of the Plan Year
preceding the Plan Year in which the Participant
attains age 35; (B) a reasonable period ending
after the individual becomes a Participant; (C) a
reasonable period
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ending after Paragraph (iii) below ceases to
apply to the Participant; (D) a reasonable period
ending after this Section first applies to the
Participant. Notwithstanding the foregoing,
notice must be provided within a reasonable
period ending after separation from service in
the case of a Participant who separates from
service before attaining age 35.
For purposes of applying the preceding paragraph,
a reasonable period ending after the enumerated
events described in (B), (C) and (D) is the end
of the two-year period beginning one year prior
to the date the applicable event occurs, and
ending one year after that date. In the case of
a Participant who separates from service before
the Plan Year in which age 35 is attained, notice
shall be provided within the two-year period
beginning one year prior to separation and ending
one year after separation. If such a Participant
thereafter returns to employment with the
Employer, the applicable period for such
Participant shall be redetermined.
(iii) Notwithstanding the other requirements of this
Subsection (d), the respective notices prescribed
by this Section need not be given to a
Participant if (1) the Plan "fully subsidizes"
the costs of a Qualified Joint and Survivor
Annuity or qualified preretirement survivor
annuity, and (2) the Plan does not allow the
Participant to waive the Qualified Joint and
Survivor Annuity or qualified preretirement
survivor annuity and does not allow a married
Participant to designate a nonspouse Beneficiary.
For purposes of this paragraph (iii), a Plan
fully subsidizes the costs of a benefit if no
increase in cost, or decrease in benefits to the
Participant may result from the Participant's
failure to elect another benefit.
(e) Safe Harbor Rules.
(i) This Subsection shall apply to a Participant in a
profit-sharing plan, and to any distribution,
made on or after the first day of the first Plan
Year beginning after December 31, 1988, from or
under a separate account attributable solely to
accumulated deductible employee contributions, as
defined in section 72(o)(5)(B) of the Code, and
maintained on behalf of a participant in a money
purchase pension plan, (including a target
benefit plan) if the following conditions are
satisfied: (1) the Participant does not or
cannot elect payments in the form of a life
annuity; and (2) on the death of a Participant,
the Participant's vested Account balance will be
paid to the Participant's surviving spouse, but
if there is no surviving spouse, or if the
surviving spouse has consented in a manner
conforming to a qualified election, then to the
Participant's designated beneficiary. The
surviving spouse may elect to have distribution
of the vested Account balance commence within the
90 day period following the date of the
Participant's death. The Account balance shall
be adjusted for gains or losses occurring after
the Participant's death in accordance with the
provisions of the Plan governing the adjustment
of Account balances for other types of
distributions. This Subsection (e) shall not be
operative with respect to a Participant in a
profit-sharing plan if the plan is a direct or
indirect transferee of a defined benefit plan,
money purchase plan, a target benefit plan, stock
bonus,
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or profit-sharing plan which is subject to the
survivor annuity requirements of Sections
401(a)(11) and section 417 of the Code. If this
Subsection (e) is operative, then the provisions
of this Section 12.08, other than Subsection (f),
shall be inoperative.
(ii) The Participant may waive the spousal death
benefit described in this Subsection (e) at any
time provided that no such waiver shall be
effective unless it satisfies the conditions of
Paragraph (c)(iii) (other than the notification
requirement referred to therein) that would apply
to the Participant's waiver of the qualified
preretirement survivor annuity.
(iii) For purposes of this Subsection (e), vested
Account balance shall mean the Participant's
separate account balance attributable solely to
accumulated deductible employee contributions
within the meaning of Section 72(o)(5)(B) of the
Code.
(f) Transitional Rules.
(i) Any living Participant not receiving benefits on
August 23, 1984, who would otherwise not receive
the benefits prescribed by the previous
Subsections of this Section 12.08 must be given
the opportunity to elect to have the prior
Subsections of this Section 12.08 apply if such
Participant is credited with at least one Hour of
Service under this Plan or a predecessor plan in
a Plan Year beginning on or after January 1,
1976, and such Participant had at least 10 years
of vesting service when he or she separated from
service.
(ii) Any living Participant not receiving benefits on
August 23, 1984, who was credited with at least
one Hour of Service under this Plan or a
predecessor plan on or after September 2, 1974,
and who is not otherwise credited with any
service in a Plan Year beginning on or after
January 1, 1976, must be given the opportunity to
have his or her benefits paid in accordance with
Paragraph (f)(iv) below.
(iii) The respective opportunities to elect (as
described in Paragraphs (f)(i) and (ii) above)
must be afforded to the appropriate Participants
during the period commencing on August 23, 1984,
and ending on the date benefits would otherwise
commence to said Participants.
(iv) Any Participant who has elected pursuant to
Paragraph (f)(ii) and any Participant who does
not elect under Paragraph (f)(i) or who meets the
requirements of Paragraph (f)(i) except that such
Participant does not have at least 10 years of
vesting service when he or she separates from
service, shall have his or her benefits
distributed in accordance with all of the
following requirements if benefits would have
been payable in the form of a life annuity:
(A) Automatic joint and survivor annuity. If
benefits in the form of a life annuity
become payable to a married Participant
who:
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(1) begins to receive payments under
the Plan on or after Normal
Retirement Age; or
(2) dies on or after Normal
Retirement Age while still
working for the Employer; or
(3) begins to receive payments on or
after the Qualified Early
Retirement Age; or
(4) separates from service on or
after attaining Normal
Retirement Age (or the Qualified
Early Retirement Age) and after
satisfying the eligibility
requirements for the payment of
benefits under the Plan and
thereafter dies before beginning
to receive such benefits;
then such benefits will be received under
this Plan in the form of Qualified Joint
and Survivor Annuity, unless the
Participant has elected otherwise during
the election period. The election period
must begin at least 6 months before the
Participant attains the Qualified Early
Retirement Age and end not more than 90
days before the commencement of benefits.
Any election hereunder will be in writing
and may be changed by the Participant at
any time.
(B) Election of early survivor annuity. A
Participant who is employed after
attaining the Qualified Early Retirement
Age will be given the opportunity to
elect, during the election period, to have
a survivor annuity payable on death. If
the Participant elects the survivor
annuity, payments under such annuity must
not be less than the payments which would
have been made to the spouse under the
Qualified Joint and Survivor Annuity if
the Participant had retired on the day
before his or her death. Any election
under this provision will be in writing
and may be changed by the Participant at
any time. The election period begins on
the later of (1) the 90th day before the
Participant attains the Qualified Early
Retirement Age, or (2) the date on which
participation begins, and ends on the date
the Participant terminates employment.
(C) For purposes of this paragraph (f)(iv)
(1) Qualified Early Retirement Age
is the latest of:
(i) the earliest date, under
the Plan, on which the
Participant may elect to
receive retirement
benefits,
(ii) the first day of the
120th month beginning
before the Participant
reaches Normal
Retirement Age, or
(iii) the date the Participant
begins participation.
(2) Qualified Joint and Survivor
Annuity is an annuity for the
life of the Participant with a
survivor annuity for the life of
the spouse as described in
Section 2.36.
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12.09 RESTRICTIONS ON IMMEDIATE DISTRIBUTIONS
(a) If the value of a Participant's vested Accrued Benefit
derived from Employer and Employee Contributions exceeds
(or at the time of any prior distribution exceeded)
$3,500, and the Accrued Benefit is immediately
distributable, the Participant and the Participant's
spouse (or where either the Participant or the spouse
has died, the survivor) must consent to any distribution
of such Accrued Benefit. The consent of the Participant
and the Participant's spouse shall be obtained in
writing within the 90-day period ending on the annuity
starting date.
The annuity starting date is the first day of the first
period for which an amount is paid as an annuity or any
other form. The Plan Administrator shall notify the
Participant and the Participant's spouse of the right to
defer any distribution until the Participant's Accrued
Benefit is no longer immediately distributable. Such
notification shall include a general description of the
material features, and an explanation of the relative
values of, the optional forms of benefit available under
the Plan in a manner that would satisfy the notice
requirements of Section 417(a)(3) of the Code, and shall
be provided no less than 30 days and no more than 90
days prior to the annuity starting date.
Notwithstanding the foregoing, only the Participant need
consent to the commencement of a distribution in the
form of a Qualified Joint and Survivor Annuity while the
Accrued Benefit is immediately distributable.
(Furthermore, if payment in the form of a Qualified
Joint and Survivor Annuity is not required with respect
to the Participant pursuant to Subsection 12.08(e) of
the Plan, only the Participant need consent to the
distribution of an Accrued Benefit that is immediately
distributable.) The consent of neither the Participant
nor the Participant's spouse shall be required to the
extent that a distribution is required to satisfy
Section 401(a)(9) or Section 415 of the Code. In
addition, upon termination of this Plan if the Plan does
not offer an annuity option (purchased from a commercial
provider) and if the Employer or any entity within the
same controlled group as the Employer does not maintain
another defined contribution plan (other than an
employee stock ownership plan as defined in Section
4975(e)(7) of the Code), the Participant's Accrued
Benefit may, without the Participant's consent, be
distributed to the Participant. However, if any entity
within the same controlled group as the Employer
maintains another defined contribution plan (other than
an employee stock ownership plan as defined in Section
4975(e)(7) of the Code) then the Participant's Accrued
Benefit will be transferred, without the Participant's
consent, to the other plan if the Participant does not
consent to an immediate distribution.
An Accrued Benefit is immediately distributable if any
part of the Accrued Benefit could be distributed to the
Participant (or surviving spouse) before the Participant
attains (or would have attained if not deceased) the
later of Normal Retirement Age or age 62.
12.10 DISTRIBUTION TO A MINOR PARTICIPANT OR BENEFICIARY - In the event
a distribution is to be made to a minor, then the Plan
Administrator may, in the Administrator's sole discretion, direct
that such distribution be paid to the legal guardian of the minor,
or if none, to a parent of such minor or a responsible adult with
whom the minor maintains his residence, or to the custodian for
such minor under the Uniform Gift to Minors Act, if such is
permitted by the laws of the state in which said minor resides.
Such a payment to the legal guardian or parent of a
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minor or to such a custodian shall fully discharge the Trustee,
Employer, and Plan from further liability on account thereof.
12.11 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 expiration of five
years after it shall become payable, remain unpaid solely by
reason of the inability of the Plan Administrator, after sending a
registered letter, return receipt requested, to the payee's last
known address, and after further diligent effort, to ascertain the
whereabouts of such Participant or his Beneficiary, the amount so
distributable shall be forfeited and allocated in accordance with
the terms of this Plan. In the event a Participant or Beneficiary
is located subsequent to his benefit being forfeited, such benefit
shall be restored.
ARTICLE XIII
BENEFITS UPON TERMINATION OF SERVICE
13.01 GENERAL - Upon a Participant's termination of Service, for any
reason other than death, disability, Normal, Early or Late
Retirement, the interests and rights of any Participant shall be
limited to those contained in this Article XIII.
(a) FULLY VESTED AND NONFORFEITABLE PORTION OF A
PARTICIPANT'S ACCRUED BENEFIT. Each Participant's
401(k) Employer and Match Accounts, Salary Savings
Account, Rollover Account, Tax Deductible Voluntary
Contribution Account, Voluntary After-Tax Contribution
Account and any additional portion of a Participant's
Accrued Benefit attributable to Employee contributions
shall be fully vested and nonforfeitable at all times.
(b) VESTED EMPLOYER CONTRIBUTIONS. Each Participant's
401(a) Employer and Match Accounts shall be vested to
the extent specified in Section 13.01 of the Adoption
Agreement, and the remainder, if any, shall be forfeited
in accordance with Plan Sections 13.03 and 13.04 and
applied as specified in the Adoption Agreement pursuant
to Section 5.03.
For purposes of computing a Participant's nonforfeitable right to
that portion of his Accrued Benefit derived from Employer
contributions, Years of Service and One Year Breaks in Service
will be measured by the Plan Year.
13.02 FORFEITURES; DISTRIBUTION OF VESTED AMOUNTS - If a Participant
terminates Service, the present value of the Participant's vested
Accrued Benefit is not greater than $3,500, and the Employer has
elected the lump sum option provided in Section 13.02(1)(a) of the
Adoption Agreement, the Participant will receive a lump sum
distribution of the present value of the entire vested portion of
such Accrued Benefit and the nonvested portion will be forfeited
and applied in accordance with Section 13.03. In the case of a
Plan subject to the Qualified Joint and Survivor Annuity
requirements of Section 12.08, if the present value of the vested
Accrued Benefit exceeded $3,500 at the time of any distribution,
the present value of the vested Accrued Benefit at any subsequent
time will be deemed to exceed $3,500. However, unless the Plan is
a profit sharing plan described in Subsection 12.08(e), no such
cash-out distribution shall be made
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after the annuity starting date (as described in Subsection
12.08(c)) unless the Participant and his or her spouse (or the
Participant's surviving spouse) consent in writing to such
distribution. For purposes of this paragraph, if the value of the
Participant's vested Accrued Benefit is zero, the Participant
shall be deemed to have received a distribution of such vested
Accrued Benefit, whether Section 13.02(1)(a) or (b) is elected.
If a Participant terminates Service, and the present value of the
Participant's vested Accrued Benefit exceeds $3,500, or if the
value of such vested Accrued Benefit does not exceed $3,500 but
the Employer has elected Section 13.02(1)(b) of the Adoption
Agreement, the payment of such vested benefit shall be deferred to
the earliest of the Participant's death, Total and Permanent
Disability or attainment of Normal Retirement Age, at which time
such vested benefit shall be payable in accordance with Article
XII. Notwithstanding the foregoing, at any time on or after the
date specified in Section 13.02(2) of the Adoption Agreement, a
terminated Participant may request in writing that his entire
vested Accrued Benefit be distributed. Partial distributions of
vested benefits will not be permitted. Unless the Plan is a
profit sharing plan described in Subsection 12.08(e), the
Participant and the Participant's spouse (or surviving spouse)
must consent to any distribution of vested benefits. The
Participant may request any form of distribution permissible under
Article XII, including the distribution of a nontransferable
annuity contract. The benefit payable as a result of any election
pursuant to this paragraph will be the benefit which can be
provided by the then current value of the Participant's vested
Accrued Benefit. If the provisions of this paragraph become
operative, the nonvested portion of the Participant's Accrued
Benefit shall be forfeited when the Participant incurs five
consecutive One Year Breaks in Service or, if earlier, when the
Participant or his spouse (or surviving spouse) receives a
distribution of his vested Accrued Benefit. Any such forfeitures
shall be applied in accordance with Section 13.03.
13.03 APPLICATION OF FORFEITURES - The nonvested portion of the Accrued
Benefit of any terminated Participant will be applied to reduce
Employer Contributions or to pay Plan administrative expenses for
the Plan Year following the Plan Year in which the forfeiture
occurs (or, if the Employer so specifies in Section 5.03 of the
Adoption Agreement, such nonvested amounts shall be allocated in
the same manner as Employer Contributions at the end of the Plan
Year in which the forfeiture occurs).
13.04 RESUMPTION OF SERVICE: RESTORATION OF BENEFITS UPON REEMPLOYMENT
- -
(a) A Participant who terminates Service and who
subsequently resumes employment with the Employer will
again become a Participant on the entry date determined
in accordance with Section 3.02 of the Plan.
(b) If a Former Participant is subsequently reemployed, the
following rules shall also be applicable:
(i) If any Former Participant shall be reemployed by
the Employer before incurring five consecutive
One Year Breaks in Service, and such Former
Participant had received (or had been deemed to
receive) a distribution of his vested Accrued
Benefit prior to his reemployment, his forfeited
Account balance shall be reinstated if he repays
the full amount attributable to Employer
Contributions which was distributed to him, not
including, at the Participant's option, amounts
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attributable to any Salary Savings Contributions.
Such repayment must be made by the Former
Participant before the earlier of five years
after the first date on which the Participant is
first reemployed by the Employer, or the date on
which the individual incurs five consecutive One
Year Breaks in Service following the date of
distribution. A Participant who was deemed to
receive a distribution of his vested Accrued
Benefit shall be deemed to have repaid such
amount as of the date he again becomes a
Participant. In the event the Former Participant
does repay the full amount distributed to him,
the forfeited portion of the Participant's
Account must be restored in full, unadjusted by
any gains or losses occurring subsequent to the
date of distribution.
(ii) Restorations of forfeitures will be made as of
the date that the Plan Administrator is notified
that the required repayment has been received (or
deemed received) by the Trustee. Any forfeiture
amount that must be restored to a Participant's
Account will be taken from any forfeitures that
have not yet been applied and, if the amount of
forfeitures available for this purpose is
insufficient, the Employer will make a timely
supplemental contribution of an amount sufficient
to enable the Trustee to restore the forfeiture
amount to the Participant's Account.
(iii) If a Former Participant resumes Service after
incurring five consecutive One Year Breaks in
Service, forfeited amounts will not be restored
under any circumstances, but unless the Rule of
Parity has been elected in Section 13.01(3)(d) of
the Adoption Agreement and such Rule applies,
both pre-break and post-break service will count
for the purposes of vesting the Employer-derived
Account balance that accrued after such Breaks.
If a Former Participant resumes Service before
incurring five consecutive One Year Breaks in
Service, both the pre-break and post-break
service will count in vesting both any restored
pre-break and post-break-Employer-derived Account
balance.
13.05 SERVICE WITH AFFILIATES - As indicated in Section 2.19 of the
Plan, in determining a Participant's vesting percentage and in
determining for purposes of this Article whether an Employee has
terminated Service or has a One Year Break in Service, Hours of
Service completed with a controlled business shall be deemed to be
Hours of Service completed with the Employer.
13.06 EARLY RETIREMENT ELECTION - Notwithstanding anything in the Plan
to the contrary, a Participant who becomes entitled to a benefit
deferred to his Normal Retirement Age under this Article upon a
termination of participation may elect to receive an immediate
early retirement benefit at any time on and after the date he
attains the age required for early retirement as elected in
Section 12.02 of the Adoption Agreement and prior to his Normal
Retirement Age. A Participant eligible to make an election under
this Section may request any optional benefit permitted under
Section 12.07.
The benefit payable as a result of any election pursuant to this
Section will be the benefit which can be provided by the current
value of the Participant's Accounts.
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13.07 AMENDMENT TO VESTING SCHEDULE - No amendment to the Vesting
Schedule shall deprive a Participant of his nonforfeitable rights
to benefits accrued to the date of the amendment. Further, if the
Vesting Schedule of the Plan is amended, or the Plan is amended in
any way that directly or indirectly affects the computation of a
Participant's nonforfeitable percentage or if the Plan is deemed
amended by an automatic change to or from a top-heavy vesting
schedule, each Participant with at least 3 Years of Service with
the Employer may elect, within a reasonable period after the
adoption of the amendment or change, to have their nonforfeitable
percentage computed under the Plan without regard to such
amendment. For Participants who do not have at least 1 Hour of
Service in any Plan Year beginning after December 31, 1988, the
preceding sentence shall be applied by substituting "5 Years of
Service" for "3 Years of Service" where such language appears.
The period during which the election may be made shall commence
with the date the amendment is adopted and shall end on the latest
of:
(1) 60 days after the amendment is adopted;
(2) 60 days after the amendment becomes effective; or
(3) 60 days after the Participant is issued written notice
of the amendment by the Employer or Plan Administrator.
ARTICLE XIV
PLAN FIDUCIARY RESPONSIBILITIES
14.01 PLAN FIDUCIARIES - The Plan Fiduciaries shall be:
(a) the Employer;
(b) the Trustee of the Plan;
(c) the Plan Administrator;
(d) the Retirement Plan Committee;
and such other person or persons as may be designated as a
Fiduciary by the Employer in accordance with the further
provisions of this Article.
14.02 GENERAL FIDUCIARY DUTIES - Each Plan Fiduciary shall discharge its
duties solely in the interest of the Participants and their
Beneficiaries and act:
(a) for the exclusive purpose of providing benefits to
Participants and their Beneficiaries and defraying
reasonable expenses of administering the Plan;
(b) with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person
acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like
character and with like aims;
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(c) by diversifying the investments of the Plan so as to
minimize the risk of large losses, unless under the
circumstances it is clearly prudent not to do so, if the
Fiduciary has the responsibility to invest plan assets;
and
(d) in accordance with the documents and instruments
governing the Plan insofar as such documents and
instruments are consistent with the provisions of
current laws and regulations.
Each Plan Fiduciary shall perform the duties specifically assigned
to it. No Plan Fiduciary shall have any responsibility for the
performance or non-performance of any duties not specifically
allocated to it.
14.03 POWERS, DUTIES AND RESPONSIBILITIES OF THE EMPLOYER -
(a) The Employer shall be empowered to appoint and remove
the Trustee, the Plan Administrator and the Retirement
Plan Committee from time to time as it deems necessary
for the proper administration of the Plan, to assure
that the Plan is being operated for the exclusive
benefit of the Participants and their Beneficiaries in
accordance with the terms of this Agreement, the
Internal Revenue Code, and the Employee Retirement
Income Security Act of 1974 (ERISA), as amended.
(b) The Employer shall establish a "funding policy and
method," i.e., it shall determine whether the Plan has a
short term need for liquidity (e.g., to pay benefits) or
whether liquidity is a long term 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 the
investment of the Trust Fund. Such "funding policy and
method" shall be consistent with the objectives of this
Plan and with the requirements of Title I of ERISA.
(c) The Employer may in its discretion appoint an Investment
Manager to manage all or a designated portion of the
assets of the Plan. In such event, the Trustee shall
follow the directives of the Investment Manager in
investing the assets of the Plan managed by the
Investment Manager. While there is an Investment
Manager, the Employer shall have no obligation under
this Plan with regard to the performance or
non-performance of the duties delegated to the
Investment Manager.
(d) The Employer shall periodically, but not less frequently
than annually, 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.
14.04 POWERS, DUTIES AND RESPONSIBILITIES OF THE TRUSTEE - The specific
powers, duties and responsibilities of the Trustee are set forth
in Article XV. In general the Trustee shall:
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(a) invest Plan assets, subject to direction from the
Employer, from any duly appointed Investment Manager or
from Participants to the extent the Plan permits
Participants to direct the investment of their Accounts;
(b) maintain adequate records of receipts, disbursements and
other transactions involving the Plan; and
(c) prepare such reports, statements, tax returns and other
forms as may be required under the Trust or applicable
laws and regulations.
14.05 POWERS, DUTIES AND RESPONSIBILITIES OF THE PLAN ADMINISTRATOR -
The Employer may appoint one or more Plan Administrators. Any
person, including, but not limited to, the Employer's directors,
shareholders, officers and Employees shall be eligible to serve as
the Administrator. Any person so appointed shall signify his
acceptance by filing written acceptance with the Employer. An
Administrator may resign by delivering his written resignation to
the Employer or be removed by the Employer by delivery of written
notice of removal.
The Employer, upon the resignation or removal of an Administrator,
may designate in writing a successor to this position. If the
Employer does not appoint an Administrator, the Employer will
function as the Plan Administrator.
The specific powers and responsibilities of the Plan Administrator
are to:
(a) administer the Plan on a day-to-day basis in accordance
with the provisions of this Plan and all other pertinent
documents;
(b) retain and maintain Plan records including Participant
census data, participation dates, compensation records,
and such other records as may be necessary or desirable
for proper Plan administration;
(c) prepare and arrange for delivery to Participants such
summaries, descriptions, announcements and reports as
are required to be given to Participants under
applicable laws and regulations;
(d) file with the U.S. Department of Labor, the Internal
Revenue Service and other regulatory agencies on a
timely basis all required reports, forms and other
documents; and
(e) prepare and furnish to the Trustee sufficient records
and data to enable the Trustee to properly perform its
obligations under the Trust.
Notwithstanding anything in the Plan and Trust to the contrary,
the Plan Administrator shall have total discretion to fulfill the
above fiduciary responsibilities as he sees fit on a uniform and
consistent basis and as he believes a prudent person acting in a
like capacity and familiar with such matters would do.
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14.06 POWERS, DUTIES AND RESPONSIBILITIES OF THE RETIREMENT PLAN
COMMITTEE - The Employer may appoint a Retirement Plan Committee
consisting of three or more members, one of whom shall be
designated by the Employer as Chairman. Each member of the
Committee and its chairman shall serve at the pleasure of the
Employer.
If a Committee is not appointed, the duties and responsibilities
set forth in this Section and in Article XIX shall be those of the
Plan Administrator.
If the Employer appoints a Retirement Plan Committee, the
Committee shall:
(a) interpret and construe the Plan;
(b) determine questions of eligibility and of rights of
Participants and their Beneficiaries;
(c) provide guidelines for the Plan Administrator, as
required for the orderly and uniform administration of
the Plan; and
(d) exercise overall control of the operation and
administration of the plan in matters not allocated to
some other Fiduciary either by the terms of this Plan or
by delegation from the Employer.
Notwithstanding anything in the Plan and Trust to the contrary,
the Retirement Plan Committee shall have total discretion to
fulfill the above fiduciary responsibilities as they see fit on a
uniform and consistent basis and as they believe a prudent person
acting in a like capacity and familiar with such matters would do.
14.07 APPOINTMENT OF ADVISORS - The Employer may appoint Plan counsel,
accountants, actuaries, specialists, advisors and such other
persons as it deems necessary or desirable in connection with the
administration of this Plan.
14.08 INFORMATION FROM EMPLOYER - To enable the Plan Administrator to
perform his functions, the Employer shall supply full and timely
information to the Plan Administrator on all matters relating to
the Compensation of all Participants, their Hours of Service,
their Years of Service, their retirement, death, disability, or
termination of employment, and such other pertinent facts as the
Administrator may require; and the Administrator shall advise the
Trustee and the Retirement Plan Committee of such of the foregoing
facts as may be pertinent to their duties under the Plan. All
Fiduciaries may rely upon such information as is supplied by the
Employer and shall have no duty or responsibility to verify such
information.
14.09 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 Plan
Administrator, the Trustee and the Retirement Plan Committee,
including, but not limited to, fees of counsel, accountants, and
other specialists, and other costs of administering the Plan.
Until paid, the expenses shall constitute a liability of the Trust
Fund. However, the Employer may reimburse the Trust for any
administration expense incurred pursuant to the above. Any
administration expense paid to the Trust as a reimbursement shall
not be considered as an Employer contribution.
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14.10 ALLOCATION AND DELEGATION OF PLAN ADMINISTRATOR AND TRUSTEE
RESPONSIBILITIES - If more than one person is appointed as Plan
Administrator or Trustee, the responsibilities of each
Administrator and Trustee may be specified by the Employer and
accepted in writing by each Fiduciary. In the event that no such
delegation is made by the Employer, the Plan Administrators and
Trustees may allocate their responsibilities among themselves, in
which event they shall notify the Employer in writing of such
action and indicate their specific responsibilities. The Employer
and other Fiduciaries thereafter shall accept and rely upon any
documents executed by the appropriate Fiduciary until such time as
the Employer revokes any such allocation or designation.
14.11 MAJORITY ACTIONS - Except where there has been an allocation and
delegation of Fiduciary responsibilities pursuant to Section
14.10, if there shall be more than one Plan Administrator or
Trustee, they shall act by majority vote, but may authorize one or
more of them to sign all papers on their behalf. The Retirement
Plan Committee shall act by majority vote of all members.
All actions, determinations, interpretations and decisions of Plan
Fiduciaries with respect to any matter within their jurisdiction
will be conclusive and binding on all persons. Any person may
rely conclusively upon any action if certified by the appropriate
Fiduciary.
14.12 LIABILITY FOR BREACH BY CO-FIDUCIARY - The Employer, Plan
Administrator, Retirement Plan Committee and Trustee shall not be
liable or responsible for the acts of commission or omission of
another Fiduciary unless (i) such Fiduciary knowingly participated
in or knowingly attempted to conceal the act or omission of
another Fiduciary and knew the act or omission was a breach of
fiduciary responsibility by the other Fiduciary; or (ii) such
Fiduciary has knowledge of a breach by the other Fiduciary and
does not take reasonable efforts to remedy the breach; or (iii)
such Fiduciary's breach of its own fiduciary responsibility
permitted the other Fiduciary to commit a breach.
14.13 RECORDS AND REPORTS - Each Fiduciary shall keep a record of all
actions taken and shall keep all other books of account, records,
and other data that may be necessary for proper administration of
the Plan. The Plan Administrator shall be responsible for
supplying all information and reports to the Internal Revenue
Service, the Department of Labor, Participants, Beneficiaries and
others as required by law.
ARTICLE XV
TRUSTEE AND TRUST FUND INVESTMENTS
15.01 IN GENERAL - Subject to the direction of the Employer or any duly
appointed Investment Manager (pursuant to the terms of Sections
15.01 and 15.04 of the Adoption Agreement) or subject to the
direction of Participants (to the extent the Plan provides for
Participant investment direction pursuant to Section 15.05 of the
Adoption Agreement), the Trustee shall receive all contributions
to the Trust and shall hold, invest, manage, and control the whole
or any part of the assets in accordance with the provisions of the
Trust. The Trustee, in signing the Trust, accepts and agrees to
carry out all of the provisions of the Trust.
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The Trustee shall have no responsibility or authority in
connection with the determination of the amounts to be transferred
to it from time to time on behalf of Participants or as Employer
contributions.
No duties or obligations shall be imposed upon the Trustee with
respect to the Trust Fund by any instrument to which the Trustee
is not a party, unless they have been specifically undertaken by
the Trustee by the express terms of this Plan.
15.02 APPOINTMENT, RESIGNATION AND REMOVAL OF TRUSTEE - The Employer
shall select an individual or individuals or institution to serve
as Trustee.
The Trustee may resign at any time by giving written notice to the
Employer, such resignation to take effect not less than thirty
(30) days after the delivery thereof to the Employer (unless
notice of a shorter duration shall be accepted as adequate). The
Employer may remove any Trustee at any time by giving notice to
the Trustee, such removal to take effect not less than thirty (30)
days after the delivery thereof to the Trustee (unless notice of a
shorter duration shall be accepted as adequate). No such removal
of the Trustee shall become effective, however, until all sums due
hereunder to the Trustee for its compensation and expenses shall
have been paid to it, nor until the appointment by the Employer
and qualification of a successor Trustee to which the Trustee may
make transfer and delivery of the Trust Fund.
Any successor Trustee hereunder may be either a corporation
authorized and empowered to exercise trust powers or may be one or
more individuals. In either event, the appointment of a successor
Trustee shall not be effective until such successor Trustee
delivers its written acceptance of trust to the Trustee resigning
or being replaced. All of the provisions set forth herein with
respect to the Trustee shall relate to each successor Trustee so
appointed with the same force and effect as if such successor
Trustee had been originally named herein as the Trustee hereunder.
In the case of the resignation or removal of the Trustee, the
Employer or the Trustee shall have the right to a settlement of
the Trustee's accounts, as provided in Section 15.10. Upon the
completion of such accounting and upon the appointment of a
successor Trustee, the resigning or removed Trustee shall transfer
and deliver the Trust Fund to such successor Trustee, after
reserving such reasonable amount as it shall deem necessary to
provide for its expenses in the settlement of its account, the
amount of any compensation due to it and any sums chargeable
against the Trust Fund for which it may be liable, but if the sums
so reserved are not sufficient for such purposes, the resigning or
removed Trustee shall be entitled to reimbursement for any
deficiency from the successor Trustee and the Employer, and each
of them, and shall thereupon be discharged from further
accountability for the Trust Fund by reason of any matter embraced
in such accounting, and shall be under no further duty, obligation
or responsibility for the disposition by such successor Trustee of
the Trust Fund or any part thereof, but the Trustee shall, in any
event, properly account for any such sums reserved by it.
15.03 POWERS OF TRUSTEE - The Trustee shall have all of the power
necessary for carrying out the purposes of this Trust, and without
limiting the powers and authority of the Trustee, except as
provided in Subsection (s) below, the Trustee shall have the right
at any time and from time to time with respect to any or all of
the property which shall at any time or times form part of the
principal or income of the Trust Fund:
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(a) To invest and reinvest or otherwise deposit the Trust
assets in savings accounts, time deposit accounts,
certificates of deposit, money market funds, or other
evidences of deposit issued by the Trustee and/or other
national bank, savings and loan institution, state
member bank, state non-member bank, or other depository
institution which now or in the future is an affiliate
or subsidiary of the Trustee or of Banc One Corporation;
and to invest and reinvest in any property, real,
personal or mixed, wherever situated and whether or not
productive of income or consisting of wasting assets,
including without limitation, common and preferred
stocks, bonds, notes, (including notes evidencing the
indebtedness of Participants, former Participants and
Beneficiaries, for amounts borrowed from the Trust Fund)
debentures (including convertible stocks and
securities), Qualifying Employer Securities (as defined
in Section 407(d)(5) of ERISA), financial futures
contracts, options to purchase or sell securities,
mortgages, equipment trust certificates, investment
trust certificates, shares of investment companies,
certificates of indebtedness, acceptances, bills of
exchange, treasury bills, commercial paper, (including
participation in pooled commercial paper accounts), real
property, leaseholds, tangible and intangible personal
property, life insurance Policies, individual and group
annuity contracts and guaranteed investment contracts
issued by a duly licensed insurance company, including
any such policies and contracts issued by any such
insurance company which may be an affiliate of the
Trustee, bank investment contracts, repurchase
agreements, variable rate or amount notes, interests in
trusts, interests in or shares of regulated investment
companies or other investment companies, including
investment companies for which the Trustee, or an
affiliate of the Trustee, may act as investment advisor
(whether or not incorporated and whether or not
registered under the Investment Company Act of 1940),
evidences of dollar denominated indebtedness in domestic
or foreign corporations or other enterprises, and
indebtedness of foreign governments, foreign agencies
and international organizations, without regard to the
proportion any such property may bear to the entire
amount of the Trust Fund; provided, however, that the
Trust Fund shall be diversified so as to minimize the
risk of large losses unless under the circumstances it
is clearly not prudent to do so, in the sole discretion
of the Trustee;
(b) To sell for cash or on credit, to grant options,
convert, redeem, exchange for other securities or other
property, or otherwise to dispose of any securities or
other property at any time held by it;
(c) To retain any property at any time received by it as
Trustee;
(d) 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 proceedings
and to represent the Trust in all suits or legal
proceedings; provided, however, that the Trustee shall
not be required to take any such action unless it shall
have been indemnified by the Employer to its
satisfaction against liability or expenses it might
incur therefrom;
(e) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other
similar plan relating to property held by it and to
consent to or oppose any such plan or any action
thereunder or any contract, lease, mortgage, purchase,
sale or other action by any person;
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(f) To exercise any conversion privilege and/or subscription
right available in connection with any securities or
other property at any time held by it, to oppose or to
consent to the reorganization, consolidation, merger, or
readjustment of the finances of any corporation, company
or association or to the sale, mortgage, pledge or lease
of the property of any corporation, company or
association any of the securities of which may at any
time be held by it and to do any act with reference
thereto, including the exercise of options, the making
of agreements or subscriptions and the payment of
expenses, assessments or subscriptions, which may be
deemed necessary or advisable in connection therewith,
and to hold and retain any securities or other property
which it may so acquire;
(g) To extend the time of payment of any obligation held by
it;
(h) To hold uninvested any moneys received by it, without
liability for interest thereon, until such moneys shall
be invested, reinvested or disbursed;
(i) To exercise, personally or by general or by limited
power of attorney, any right, including the right to
vote, appurtenant to any securities or other property
held by it at any time;
(j) For the purposes of the Trust, to borrow money in such
amounts and upon such terms and conditions as shall be
deemed advisable or proper to carry out the purposes of
the Trust and to pledge any securities or other property
for the repayment of any such loan;
(k) To manage, administer, operate, insure, lease for any
number of years, develop, improve, repair, alter,
demolish, mortgage, pledge, grant options with respect
to, or otherwise deal with any real property or interest
therein at any time held by it, and to cause to be
formed a corporation or trust to hold title to any such
real property with the aforesaid powers, all upon such
terms and conditions as may be deemed advisable;
(l) To renew or extend or participate in the renewal or
extension of any mortgage, upon such terms as may be
deemed advisable, and to agree to a reduction in the
rate of interest on any mortgage or to any other
modification or change in the terms of any mortgage or
of any guarantee pertaining thereto, in any manner and
to any extent that may be deemed advisable for the
protection of the Trust Fund or the preservation of the
value of the investment; to waive any default whether in
the performance of any covenant or condition of any
mortgage or in the performance of any guarantee, or to
enforce any such default in such manner and to such
extent as may be deemed advisable; to exercise and
enforce any and all rights of foreclosure, to bid in
property on foreclosure, to take a deed in lieu of
foreclosure with or without paying a consideration
therefor and in connection therewith to release the
obligation on the bond secured by such mortgage, and to
exercise and enforce in any action, suit or proceedings
at law or in equity any rights or remedies in respect to
any such mortgage or guarantee;
(m) To employ suitable agents, including custodians, record
keepers, auditors, depositories and counsel, who may be
counsel for the Employer, and to act in accordance with
their advice and to pay their reasonable expenses and
compensation. The opinion of such counsel on any
question submitted to such counsel shall be full and
complete protection in respect to any action taken or
suffered by the Trustee hereunder in good faith and in
accordance with the opinion of such counsel;
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(n) To cause any property or securities at any time held in
the Trust Fund to be registered in the name of one or
more nominees of the Trustees, without disclosure of the
trust, or in the name of a nominee of any custodian, or
to hold any securities at any time held in trust in
bearer form so that they will pass by delivery; to
combine certificates representing securities with
certificates of the same issue held by the Trustee in
other fiduciary capacities or to deposit or to arrange
for the deposit of such securities with a depository or
clearing corporation, even though where deposited such
securities may be held in the name of the nominee of
such depository with other securities deposited
therewith by other persons, provided, however, that the
books and records of the Trustee shall at all times show
that all such securities are part of the Trust Fund;
(o) To make, execute and deliver, as Trustee, any and all
deeds, leases, mortgages, conveyances, contracts,
waivers, releases or other instruments in writing
necessary or proper for the accomplishment of any of the
foregoing powers;
(p) To invest and reinvest (or withdraw from investment) all
or any portion of the funds hereunder in units of
participation in one or more Collective Investment
Trusts, including a Collective Investment Trust
established and maintained by the Trustee or any other
party in interest. The Trustee's authority to invest in
such units of participation shall not be limited by any
statute, other rule of law, or custom prohibiting or
restricting the commingling of trust assets. As long as
any of the funds hereunder are so invested, the terms of
any such Collective Investment Trust, together with any
amendments heretofore or hereafter made thereto, are
hereby incorporated into this Trust and made a part
hereof, as long as any of the funds hereunder are
invested therein, as fully as if the same had been set
out herein at length, and shall apply to all assets
transferred to said Collective Investment Trust. The
Trustee shall not be obligated to invest the funds so
contributed in a Collective Investment Trust until the
Plan (if a Non-Standardized Plan) has been approved by
the Internal Revenue Service;
(q) To lend any securities to brokers or dealers and to
secure the same in any manner and, during the term of
any such loan, to permit the securities so lent to be
transferred in the name of, and voted by, the borrower
or others;
(r) To invest in Qualifying Employer Securities, as that
term is defined in ERISA Section 407(d)(5), subject to
all applicable provisions of ERISA and the Code, as
amended from time to time, and the regulations
promulgated thereunder. If the Plan is a
Non-standardized Profit Sharing Plan or a
Non-standardized 401(k) Plan, then the Employer may
elect to permit the aggregate investments in Qualifying
Employer Securities to exceed 10% of the value of the
Plan's assets.
(s) Generally, to do all acts, whether or not expressly
authorized, that the Trustee may deem necessary or
desirable for the protection of the Trust Fund;
(t) If the Employer has appointed an Investment Manager with
respect to the Plan with the power to direct the
investment and reinvestment of all or part of the Trust
Fund, the Investment Manager shall, unless its
appointment provides otherwise, have the power to direct
the Trustee in the exercise of the powers described in
paragraphs (a) through (r) above with respect to all or
part of the Trust Fund, as the case may be, and the
Trustee
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shall, upon receipt of a copy of the Investment
Manager's appointment and written acknowledgement of
such appointment, satisfactory in form to the Trustee,
exercise such powers as directed in writing by the
Investment Manager, unless it knows that such direction
is a breach of the Investment Manager's duty to act with
care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent person
acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like
character and with like aims. The Trustee shall not be
liable for any diminution in the value of the Trust Fund
as a result of following any such direction or as a
result of not exercising any such powers in the absence
of any such direction; and
(u) If a Participant, in accordance with Section 15.05 of
the Adoption Agreement, may individually direct the
investment of any part or all of the Trust Fund credited
to his/her Accounts, the Participant shall have the
power to direct the Trustee in the exercise of the
powers described in paragraphs (a) through (s) above and
paragraph (u) below with respect to such portion of the
Trust Fund, and the Trustee shall, upon receipt of a
written direction from the Participant, exercise such
powers in accordance with such direction. The Trustee
shall not be liable for investments made in compliance
with such written directions or for any diminution in
the value of such portion of the Trust Fund as a result
of following such directions, and, further, shall be
under no duty or obligation to review, evaluate or
reevaluate the investments made pursuant to such
directions.
15.04 EMPLOYER OR INVESTMENT MANAGER MAY DIRECT INVESTMENT PROGRAM - The
Employer, at its discretion, shall have full authority to direct
the Trustee in the investments of all or a portion of the Trust
Fund or the Employer may appoint an Investment Manager to so
direct the Trustee as indicated in Sections 15.01 and 15.04 of the
Adoption Agreement. Any such direction shall be in writing
bearing an authorized signature, and may be of a continuing nature
or otherwise.
15.05 PARTICIPANT DIRECTED INVESTMENTS - If and to the extent so
specified by the Employer in Section 15.05 of the Adoption
Agreement, each Participant may direct the Trustee to separate and
keep separate all or a portion of his Accounts; and further each
Participant is authorized and empowered, in his sole and absolute
discretion, to give directions to the Trustee in such form as the
Trustee may require concerning the investment of such portion of
his Accounts, which directions must be followed by the Trustee
subject, however, to Subsection 15.03(u) and to the restrictions
on payment of life insurance premiums described in Section 2.34.
Neither the Trustee nor any other person, including the Plan
Administrator, shall be under any duty to question any investment
direction of the Participant authorized by this Section or make
any suggestions to the Participant in connection therewith, and
the Trustee shall comply as promptly as practicable with
directions given by the Participant hereunder. Any such direction
may be of continuing nature or otherwise and may be revoked by the
Participant at any time in such form as the Trustee may require.
The Trustee shall not be responsible or liable for any loss or
expense which may arise from or result from compliance with any
directions from the Participant nor shall the Trustee be
responsible for, or liable for, any loss or expense which may
result from the Trustee's refusal or failure to comply with any
directions from the Participant. The Trustee may refuse to comply
with any direction from the Participant in the event the Trustee,
in its sole and absolute discretion, deems such directions
improper by virtue of applicable law. Any costs and expenses
related to compliance with the Participant's directions shall be
borne by the Participant's Account.
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15.06 RELIANCE ON INSTRUCTIONS - The Trustee may rely on any order,
request, or other paper believed by the Trustee to be genuine and
to be signed or presented by the proper party or parties and may
rely upon the Plan Administrator for the mailing addresses of
Participants and Employees.
15.07 VOTING AND OTHER ACTION - Subject to the provisions of Sections
15.13 and 15.14, the Employer specifically reserves the right to
direct the Trustee with respect to the voting of all stocks,
securities and other investments held by the Trustee as part of
the Trust Fund.
15.08 DISCLOSURE - The Trustee is not authorized to disclose and shall
not disclose the name, address, or security positions of the
beneficial owners of the Trust in response to requests concerning
shareholder communications under Section 14 of the Securities
Exchange Act of 1934, the rules and regulations thereunder, or any
similar statute, regulation, or rule in effect from time to time.
15.09 RETURNS AND REPORTS - The Plan Administrator shall furnish to the
Trustee, and the Trustee shall furnish to the Plan Administrator,
such information relevant to the Trust as may be required under
the Internal Revenue Code and Regulations and by the Federal
Department of Labor. The Trustee shall keep such records and file
with the Internal Revenue Service such returns and other
information concerning the Trust as may be required of it under
the Internal Revenue Code and Regulations issued or forms adopted
thereunder.
15.10 RECORDS AND ACCOUNTS - The Trustee shall keep accurate and
detailed records and accounts of all of its receipts and
disbursements. The Trustee's books and records with respect to
the Trust Fund shall be open to inspection by the Employer at all
reasonable times during business hours of the Trustee. The
Trustee shall render from time to time, and not less frequently
than once per year, accounts of its transactions to the Employer
and certify to the accuracy thereof. The Employer may approve
such accounts by an instrument in writing delivered to the
Trustee. In the absence of the filing in writing with the Trustee
by the Employer of exceptions or objections to any such account
within sixty (60) days, the Employer shall be deemed to have
approved such account; and in such case, or upon the written
approval of the Employer of any such account, the Trustee shall be
released, relieved and discharged with respect to all matters and
things set forth in such account as though such account had been
settled by the decree of a court of competent jurisdiction. No
person other than the Employer may require an accounting or bring
any action against the Trustee with respect to the Trust or its
action as Trustee. The Trustee or the Employer shall have the
right to apply at any time to a court of competent jurisdiction
for judicial settlement of any account of the Trustee not
previously settled as herein provided or for the determination of
any question of construction or for instructions. In any such
action or proceeding it shall be necessary to join as parties only
the Trustee and the Employer (although the Trustee may also join
such other parties as it may deem appropriate), and any judgment
or decree entered therein shall be conclusive.
In the case of the revocation or termination of this Trust, or in
case of the resignation or removal of the Trustee, the Employer
and the Trustee shall have the right to a settlement of the
Trustee's accounts, which accounting may be made either (i) by
agreement of settlement between the Trustee and the Employer, or
(ii) by judicial settlement in an action, suit or proceeding
instituted by the Employer or the Trustee in a court of competent
jurisdiction.
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15.11 INDEMNIFICATION OF TRUSTEE - The Employer shall indemnify and save
harmless the Trustee from and against any and all claims, loss,
damages, expenses (including reasonable counsel fees) and
liability to which the Trustee may be subjected by reason of any
act done or omitted to be done except where the same is finally
adjudicated to be due to the negligence or wilful misconduct of
the Trustee.
If the Trustee is at any time acting as a successor Trustee, the
Employer shall indemnify and save harmless the Trustee from and
against any and all claims, losses, damages, expenses (including
reasonable counsel fees), taxes and liability incurred by or
assessed against it as a successor Trustee, as a direct or
indirect result of any act or omission of a predecessor Trustee or
any act or omission of any other person occurring prior to the
date of appointment of the Trustee as successor Trustee. In
addition, the Trustee shall not be liable for any losses to the
Trust Fund resulting from the disposition of any investment which
shall have been made by a predecessor Trustee or for the retention
thereof if the Trustee is unable to dispose of such investment
because of any Federal or state securities laws, restrictions or
the unmarketable or illiquid nature of such investments, or if an
orderly liquidation is difficult under prevailing conditions.
15.12 FEES AND TAXES, EXPENSES AND COMPENSATION OF TRUSTEE - The Trustee
shall pay out of the Trust Fund all real and personal taxes and
other taxes of any and all kinds levied or assessed under existing
or future laws against the Trust Fund. The Trustee shall be paid
its reasonable expenses for the management and administration of
the Trust Fund, including without limitation reasonable expenses
of counsel, custodians, and other agents employed by the Trustee,
and reasonable compensation for its services as Trustee hereunder,
the amount of which shall be agreed upon from time to time by the
Employer and the Trustee in writing; provided, however, that if
the Trustee forwards an amended fee schedule to the Employer
requesting its agreement thereto and the Employer fails to object
thereto within thirty (30) days of its receipt, the amended fee
schedule shall be deemed to be agreed upon by the Employer and the
Trustee. Such expenses and compensation may be paid by the
Employer, but if they are not paid by the Employer, they shall be
paid by the Trustee from the Trust Fund.
15.13 VOTING EMPLOYER STOCK - Each Participant and Beneficiary shall
have the power to direct the Trustee in the voting of all
Qualifying Employer Securities, as that term is defined in ERISA
Section 407(d)(5), allocated to that person's Accounts. All
voting of Qualifying Employer Securities shall be in compliance
with all applicable rules and regulations of the Securities and
Exchange Commission and all applicable rules of or any agreement
with any stock exchange on which the Employer stock being voted is
traded. The Trustee shall vote all Qualifying Employer Securities
as directed by the Participant.
15.14 TENDER OFFERS - Each Participant and Beneficiary shall have the
sole right to direct the Trustee as to the manner in which to
respond to a tender or exchange offer for Qualifying Employer
Securities, as that term is defined in ERISA Section 407(d)(5),
allocated to such person's Accounts. The Employer shall use its
best efforts to notify or cause to be notified each Participant
and Beneficiary of any tender or exchange offer and to distribute
or cause to be distributed to each Participant and Beneficiary
such information as is distributed in connection with any tender
or exchange offer to holders generally of Employer stock, together
with the appropriate forms for directing the Trustee as to the
manner in which to respond to such tender or exchange offer. Upon
timely receipt of such directions from the Participant or
Beneficiary, the Trustee shall respond to the tender or exchange
offer in accordance with, and only in accordance
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with, such directions. If the Trustee does not receive timely
directions from a Participant or Beneficiary, the Trustee shall
respond to the tender or exchange offer for Employer stock on
behalf of the Participant or Beneficiary in such manner as the
Trustee deems appropriate.
ARTICLE XVI
THE INSURER
16.01 INSURER NOT A PARTY TO THE TRUST - The Insurer shall be protected
in treating the Trustee as absolute owner of any individual or
group annuity contract, guaranteed investment contract or other
contract or life insurance Policy issued to the Trustee and may
rely on directions received from the Trustee. The Insurer shall
not be required to take or permit any action contrary to the
provisions of any such contract or life insurance Policy issued
hereunder, or be bound to allow any benefit or privilege to any
Plan Participant covered by the contract or Policy which is not
provided for in such contract or Policy.
The Insurer shall deal with and accept the signature of the
Trustee in connection with any changes or actions under its group
annuity contract or Policy and shall have no liability to inquire
as to the Trustee's authority nor to determine that the Trustee
has obtained any necessary direction, signature, or consents. Any
sums paid out by the Insurer under any of the terms of any group
annuity contract or life insurance Policy to the Trustee or in
accordance with his direction or to any other person or persons to
whom payment should be made shall be a complete and full discharge
of liability of such payment, and the Insurer shall have no
obligations as to the disposition of any funds to be paid.
The Insurer shall be fully protected in accepting premiums on any
group annuity contract or life insurance Policy it may issue under
this Trust and shall have no responsibility to make any inquiry as
to the Trustee's authority to make such payment.
The Insurer shall be fully protected at all times in dealing with
the person or corporation who is Trustee according to the latest
notification received by the Insurer at its Home Office.
No amendment to this Trust shall, regardless of its provisions,
deprive the Insurer of any of its exemptions and immunities
hereunder.
ARTICLE XVII
LIFE INSURANCE POLICIES
17.01 GENERAL RULES - If and to the extent permitted by the Employer, at
the request and direction of a Participant the Trustee shall
invest in life insurance Policies, subject to the following:
(a) each Policy shall be issued by the Insurer to the
Trustee only and shall provide for premiums payable in
accordance with the terms of the Policy. Purchase of
Policies in accordance with this Section 17.01 shall
constitute an investment of amounts allocated to the
appropriate Account of the Participant, and each such
Account shall be reduced by the amount paid for such
Policies,
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(b) as provided in Section 12.06, the Trustee shall be
designated as Beneficiary of any Policy issued
hereunder, and upon the death of the Participant the
Trustee shall pay or apply the Policy proceeds for the
benefit of the appropriate Plan Beneficiary,
(c) each Policy shall be a Policy between the Insurer and
Trustee and shall reserve to the Trustee all rights,
options and benefits,
(d) each life insurance Policy shall provide a full or
increasing death benefit,
(e) each Policy shall provide settlement options (including
lump sum cash payment in the event of the surrender or
maturity of such Policy) subject, however, to Section
12.07,
(f) any dividend payable while a Policy is on a premium
paying basis shall be applied or accumulated as
indicated on the Policy application for the benefit of
the Participant on whose life the Policy was issued,
(g) all classes of life insurance Policies purchased
hereunder shall be alike or substantially alike as to
settlement option provisions, cash values, and as to
other Policy provisions, subject, however, to the
provisions of Sections 17.01(h), 17.01(i) and 17.01(j),
(h) if an eligible Employee is determined to be insurable by
the Insurer at its standard rates, a Policy shall be
obtained upon his life, if available from the Insurer,
which provides a life insurance death benefit prior to
retirement to which the eligible Employee is entitled,
(i) if an eligible Employee is not insurable at the standard
rates of such Insurer, if permitted under the Policy
being issued, the Policy shall provide for a reduced but
increasing death benefit as determined by the Insurer
(usually called increasing or graded death benefit),
(j) if an eligible Employee is not insurable at the standard
rates of the Insurer, each Employee may elect to pay any
excess premium that may be required in order to obtain a
Policy providing for full death benefits described in
Section 17.01(h), if the Insurer shall agree to issue
such a Policy,
(k) the Insurer shall only issue Policies which conform to
the terms of the Plan.
17.02 PROCEDURE FOLLOWED TO OBTAIN POLICIES - The Trustee shall apply to
the Insurer for Policies on the lives of Participants with
completed applications as may be required by the Insurer, such
Policies to have benefits which are purchasable by a premium equal
to the portion of the contribution allocated for that purpose.
17.03 KEY MAN INSURANCE - The Trustee shall have the power, which shall
be exercised upon direction of the Employer or any duly appointed
Investment Manager, to invest in life insurance Policies on the
lives of key Employees of the Employer, payable on death to the
Trust as beneficiary. Such Policies shall be vested exclusively
in the Trustee for the benefit of the Trust, and death proceeds
received under any such Policy shall be considered to be an
additional Employer Contribution.
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ARTICLE XVIII
TRANSFER OF ASSETS, ROLLOVER CONTRIBUTIONS
18.01 TRANSFER FROM OTHER QUALIFIED PLANS - With the consent of the Plan
Administrator, the Trustee may accept funds and property
transferred from other pension, profit sharing or stock bonus
plans qualified under Code Section 401(a) or 403(a) or Rollover
Amounts, provided that the plan from which such funds and property
are transferred permits the transfer to be made.
In the event of a transfer to this Plan, the Trustee shall
maintain a 100% vested and nonforfeitable account for the amount
transferred and its share of the Trust Fund's accretions or
losses, to be known as the Participant's Rollover Account. At the
Trustee's direction, the Plan Administrator shall separately
account for transferred funds and Rollover Amounts within a
Participant's Rollover Account.
"Rollover Amount" means any rollover contribution or eligible
rollover distribution described in Code Section 402(a)(5) (for
years prior to 1993), 402(c)(4) (for years after 1992), 403(a)(4)
or 408(d)(3)(A)(ii).
An Employee who makes a contribution to the Plan described in this
Section shall become a Plan Participant on the date the Trustee
accepts the contribution. However, no 401(a) or 401(k) Employer
Contributions or Employer Match Contributions will be made on
behalf of such Employee nor will the Employee be eligible to enter
into a salary reduction agreement, to share in Plan forfeitures or
to make Voluntary After-Tax Contributions until the Employee
satisfies the Plan eligibility requirements set forth in Section
3.02 of the Adoption Agreement.
In the case of a Profit Sharing or 401(k) Plan, if elected by the
Employer in Section 10.01 of the Adoption Agreement, a Participant
shall have the right at any time (or at any time after he attains
Age 59 1/2, if so specified by the Employer in the Adoption
Agreement) to request a withdrawal in cash of the portion of his
Accrued Benefit attributable to his Rollover Contributions. If
necessary to comply with the requirements of Section 12.08, the
Plan Administrator shall require the consent of the Participant's
spouse before making any withdrawal. Any such consent shall
satisfy the requirements of Section 12.08. Subject to any
limitations or restrictions imposed pursuant to Section 10.03, any
such amount requested to be withdrawn shall be paid within 90 days
following the date written request therefor is received by the
Plan Administrator. Values not so withdrawn, including any
increments earned on withdrawn amounts prior to withdrawal, shall
be distributed to the Participant or his Beneficiary at such time
and in such manner as the Trust otherwise provides for Account
distributions.
No forfeitures will occur solely as a result of an Employee's
withdrawal of Rollover Contributions.
The portion of a Participant's Accrued Benefit attributable to
Rollover Contributions shall be 100% vested and nonforfeitable at
all times.
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18.02 PARTICIPANT TRANSFERS TO OTHER QUALIFIED PLANS -
(a) For distributions made prior to January 1, 1993, upon
the request of a Participant upon his termination of
employment, the Trustee, at the direction of the Plan
Administrator, shall transfer the vested portion of his
Accrued Benefit, if any, to another pension, profit
sharing or stock bonus plan maintained by such
Participant's employer and meeting the requirements of
Code Section 401(a) or 403(a), provided that the plan to
which such transfer is to be made permits the transfer.
(b) (i) Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a
distributee's election under this Article, for
distributions made on or after January 1, 1993, a
distributee may elect, at the time and in the
manner prescribed by the Plan Administrator, to
have any portion of an eligible rollover
distribution paid directly to an eligible
retirement plan specified by the distributee in a
direct rollover.
(ii) Definitions.
(A) Eligible rollover distribution: An
eligible rollover distribution is any
distribution of all or any portion of the
balance to the credit of the distributee,
except that an eligible rollover
distribution does not include: any
distribution that is one of a series of
substantially equal periodic payments (not
less frequently than annually) made for
the life (or life expectancy) of the
distributee or the joint lives (or joint
life expectancies) of the distributee and
the distributee's designated Beneficiary,
or for a specified period of ten years or
more; any distribution to the extent such
distribution is required under section
401(a)(9) of the Code; and the portion of
any distribution that is not includible in
gross income (determined without regard to
the exclusion for net unrealized
appreciation with respect to employer
securities).
(B) Eligible retirement plan: An eligible
retirement plan is an individual
retirement account described in section
408(a) of the Code, an individual
retirement annuity described in section
408(b) of the Code, an annuity plan
described in section 403(a) of the Code,
or a qualified trust described in section
401(a) of the Code, that accepts the
distributee's eligible rollover
distribution. However, in the case of an
eligible rollover distribution to the
surviving spouse, an eligible retirement
plan is an individual retirement account
or individual retirement annuity.
(C) Distributee: A distributee includes an
Employee or former Employee. In addition,
the Employee's or former Employee's
surviving spouse or former spouse who is
the alternate payee under a qualified
domestic relations order, as defined in
section 414(p) of the Code, are
distributees with regard to the interest
of the spouse or former spouse.
(D) Direct rollover: A direct rollover is a
payment by the Plan to the eligible
retirement plan specified by the
distributee.
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(c) Unless the Plan is a profit sharing plan described in
Subsection 12.08(e), if the Participant's vested Accrued
Benefit attributable to Employer and Employee
contributions and Plan transfers exceeds (or at the time
of any prior distribution exceeded) $3,500, the Plan
Administrator shall require the consent of the
Participant's spouse before authorizing the transfer.
Any such spousal consent shall satisfy the requirements
of Section 12.08.
ARTICLE XIX
CLAIMS PROCEDURE
19.01 CLAIMS FIDUCIARY - The Retirement Plan Committee will act as
Claims Fiduciary except to the extent that the Employer has
allocated the function to someone else.
Notwithstanding anything in the Plan and Trust to the contrary,
the Claims Fiduciary shall have total discretion to fulfill their
fiduciary responsibilities as they see fit on a uniform and
consistent basis and as they believe a prudent person acting in a
like capacity and familiar with such matters would do.
19.02 CLAIMS FOR BENEFITS - Claims for benefits under the Plan must be
made in writing to the Plan Administrator. For the purpose of
this procedure, "claim" means a request for a Plan benefit by a
Participant or a Beneficiary of a Participant. If the basis of
the claim includes documentation not a part of the records of the
Plan or of the Employer, all such documentation must be included
with the claim.
19.03 NOTICE OF DENIAL OF CLAIM - If a claim is wholly or partially
denied, the Plan Administrator shall notify the claimant of the
denial of the claim within a reasonable period of time. Such
notice of denial (i) shall be in writing, (ii) shall be written in
a manner calculated to be understood by the claimant, and (iii)
shall contain (a) the specific reason or reasons for denial of the
claim, (b) a specific reference to the pertinent Plan provisions
upon which the denial is based, (c) a description of any
additional material or information necessary for the claimant to
perfect the claim, along with the explanation why such material or
information is necessary, and (d) an explanation of the Plan's
claim review procedure. Unless special circumstances require an
extension of time for processing the claim, the Plan Administrator
shall notify the claimant of the claim denial no later than 90
days after the Administrator's receipt of the claim. If such an
extension is required, written notice of the extension shall be
furnished to the claimant prior to the termination of the initial
90-day period. In no event shall such extension exceed a period
of 90 days from the end of such initial period. The extension
notice shall indicate the special circumstances requiring the
extension of time and the date by which the Plan Administrator
expects to render the final decision.
19.04 REQUEST FOR REVIEW OF DENIAL OF CLAIM - Within 120 days of the
receipt by the claimant of the written notice of denial of the
claim or if the claim has not been granted within a reasonable
period of time, the claimant or his duly authorized representative
may file a written request with the Claims Fiduciary to conduct a
full and fair review of the denial of the claimant's claim for
benefit. In connection with the claimant's appeal of the denial
of his benefit, the claimant or his duly authorized representative
may review pertinent documents and may submit issues and comments
in writing.
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19.05 DECISION ON REVIEW OF DENIAL OF CLAIM - The Claims Fiduciary shall
deliver to the claimant a written decision on the claim promptly,
but not later than 60 days after the receipt of the claimant's
request for review, except that if there are special circumstances
which require an extension of time for processing, the aforesaid
60-day period may be extended to 120 days by written notice
delivered to the claimant prior to the expiration of the initial
60-day period. Such decision shall (i) be written in a manner
calculated to be understood by the claimant, (ii) include specific
reasons for the decision, and (iii) contain specific references to
the pertinent Plan provisions upon which the decision is based.
Notwithstanding any provisions elsewhere to the contrary, the
Claims Fiduciary shall have total discretion to make decisions as
they see fit on a uniform and consistent basis, as they believe a
prudent person acting in a like capacity and familiar with such
matters would do.
ARTICLE XX
AMENDMENT AND TERMINATION
20.01 AMENDMENT OF PLAN - The right is reserved to the Employer to amend
its Plan at any time and from time to time and all parties or any
person claiming any interest hereunder shall be bound thereby;
except no person having an already vested interest in such Plan
shall be deprived of any interest already existing nor have such
interest adversely affected. No such amendment shall have the
effect of vesting in the Employer any right, title or interest to
any assets held under the Trust.
The decision of the Employer shall be binding upon the
Participants and all other persons and parties interested, as to
whether or not any amendment does deprive a Participant or any
other person or adversely affects such interest. The consent of
the Trustee shall not be necessary to any Plan amendment unless in
its opinion its duties or liabilities have been increased. No
amendment to the Adoption Agreement shall be made or shall be
valid if it would result in causing the Employer's Plan to become
disqualified under the controlling provisions of the Internal
Revenue Code or any of its applicable Regulations or applicable
and controlling rulings of the Secretary of the Treasury or his
delegate, or under final decisions of any Federal Court.
Participants shall be notified of any Plan amendments. No such
amendment shall affect any other Employer who had adopted this
Plan.
No amendment to the Plan shall be effective to the extent that it
has the effect of decreasing a Participant's Accrued Benefit.
Notwithstanding the preceding sentence, a Participant's Account
balance may be reduced to the extent permitted under Section
412(c)(8) of the Internal Revenue Code. For purposes of this
paragraph, a Plan amendment which has the effect of decreasing a
Participant's Account balance or eliminating an optional form of
benefit, with respect to benefits attributable to service before
the amendment shall be treated as reducing an Accrued Benefit.
Furthermore, no amendment to the Plan shall have the effect of
decreasing a Participant's vested interest determined without
regard to such amendment as of the later of the date such
amendment is adopted or the date it becomes effective.
The Employer may (1) change the choice of options in the Adoption
Agreement, (2) add overriding language in the Adoption Agreement
when such language is necessary to satisfy Section 415 or Section
416 of the Code because of the required aggregation of multiple
plans, and
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(3) add certain model amendments published by the Internal Revenue
Service which specifically provide that their adoption will not
cause the Plan to be treated as individually designed. An
Employer that amends the Plan for any other reason will no longer
participate in this master or prototype plan and will be
considered to have an individually designed plan.
In the case of any merger, consolidation with or transfer of
assets or liabilities by the Employer to another Plan, each
Participant in the Plan on the date of the transaction shall have
a benefit in the surviving Plan (determined as if such Plan were
terminated immediately after the transaction) at least equal to
the benefit to which he would have been entitled to receive
immediately prior to the transaction if the Plan had then
terminated. However, this provision shall not be construed to be
a termination or discontinuance of Plan or to be a guarantee of a
specific level of benefits from this Plan.
20.02 AMENDMENT OF PROTOTYPE PLAN AND ADOPTION AGREEMENT - Subject to
Section 20.01, Bank One may amend this Prototype Plan and Trust
and Adoption Agreement, and, if amended, shall mail or deliver to
each adopting Employer who has registered with Bank One a copy of
such amendment as it has been approved by the Internal Revenue
Service. Each Employer and Trustee shall be deemed to have
consented to any such amendment by its original execution of the
Adoption Agreement for this Plan and Trust unless Bank One is
otherwise advised in writing by the Employer.
20.03 EMPLOYER MAY DISCONTINUE PLAN - The Employer reserves the right at
any time to reduce its annual payments, to partially terminate the
Plan or to terminate the Plan in its entirety. Any such
termination or partial termination of such Plan shall become
effective immediately upon receipt by the Trustee of a written
notice from the Employer of such action.
In the event of the liquidation of the Employer or the bona fide
sale of the controlling interest thereof, such Employer or its
successors or assigns shall not be obligated to continue this
Plan.
In the event of termination of the Plan there shall be a 100%
vesting and nonforfeitability of all rights and benefits under
this Trust and Plan of all affected Participants irrespective of
their length of participation under the Plan. However, the Trust
shall remain in existence, and all of the provisions of the Trust
shall remain in force which are necessary in the sole opinion of
the Trustees, other than the provisions relating to Employer
contributions. All of the assets on hand on the date of
termination or discontinuance of contributions shall be held,
administered and distributed by the Trustees in the manner
provided in the Plan, except that a Participant shall have a 100%
vested and nonforfeitable interest in his Accrued Benefit, subject
to Section 20.05.
Subject to Section 20.05, in the event of Plan termination any
other remaining assets of the Trust Fund shall also be vested in
Participants on a pro rata basis based on their respective Account
balances (other than their Tax Deductible Voluntary Contribution
and Rollover Accounts) in relation to the aggregate of all such
Account balances.
In the event of a partial termination of Plan, this section will
only apply to those Participants who are affected by such partial
termination of Plan.
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In the event that the Employer shall decide to terminate
completely the Plan and Trust, they shall be terminated as of a
date to be specified in a notice to be delivered to the Trustees.
Upon termination of the Plan and Trust, after payment of all
expenses and proportional adjustment of Participants' Accounts to
reflect such expenses, fund profits or losses and reallocations to
the date of termination, each Participant shall be entitled to
receive any amounts then credited to his Accounts. The Trustee
may make payment of such amounts in cash, in assets of the fund,
or in the form of an immediate or deferred annuity, whichever the
Plan Administrator may direct.
20.04 DISCONTINUANCE OF CONTRIBUTIONS - In the case of a Profit Sharing
Plan, in the event that the Employer shall completely discontinue
its contributions, the Accounts of each affected Participant shall
be fully vested and nonforfeitable. After a discontinuance of
contributions, Plan benefits shall be payable to Participants or
their Beneficiary upon death, disability, retirement, termination
of employment or termination of Plan in accordance with the
provisions of the Plan applicable upon the occurrence of any such
event.
20.05 RETURN OF EMPLOYER CONTRIBUTIONS UNDER SPECIAL CIRCUMSTANCES -
Notwithstanding any provisions of this Plan and Trust to the
contrary:
(a) Any contributions made by the Employer because of a
mistake of fact must be returned to the Employer within
one year of the contribution.
(b) In the event the deduction of the contribution made by
the Employer is disallowed under Section 404 of the
Code, such contribution(to the extent disallowed) must
be returned to the Employer within one year of the
disallowance of the deduction.
(c) In the event that the Commissioner of Internal Revenue
determines that the Plan is not initially qualified
under the Internal Revenue Code, any contribution made
incident to that initial qualification by the Employer
must be returned to the Employer within one year after
date the initial qualification is denied, but only if
the application for the qualification is made by the
time prescribed by law for filing the Employer's return
for the taxable year in which the Plan is adopted, or
such later date as the Secretary of the Treasury may
prescribe.
The return of a Plan contribution to the Employer under Subsection
(a) or (b) above satisfies the requirements of this Section only
if the amount so returned does not include earnings or other gain
attributable to such contributions. Further, a return will
satisfy the requirements of this Section only if the amount of the
contribution so returned is reduced by any loss attributable to
the contribution.
Except as provided in this Section 20.05 and in Article VII, under
no circumstances or conditions whatsoever shall any funds or the
income therefrom which at any time have been contributed to this
Plan ever inure to the benefit of the Employer.
ARTICLE XXI
MISCELLANEOUS
21.01 PROTECTION OF EMPLOYEE INTEREST - No benefit or interest available
hereunder will be subject to assignment or alienation, either
voluntarily or involuntarily, except where an assignment is made
to provide security for a loan made in accordance with Article XI
or an
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assignment is otherwise not prohibited by Code Section 401(a)(13)
and the Regulations thereunder. The preceding sentence shall also
apply to the creation, assignment, or recognition of a right to
any benefit payable with respect to a Participant pursuant to a
domestic relations order, unless such order is determined to be: a
qualified domestic relations order, as defined in Code Section
414(p), a domestic relations order entered before January 1, 1985
and under which payments commenced prior to that date, or a
domestic relations order entered before January 1985 and under
which payments did not commence by January 1, 1985 and which the
Plan Administrator chooses to treat as a qualified domestic
relations order.
21.02 MEANING OF WORDS USED IN PLAN AND TRUST - Wherever any words are
used herein in the masculine gender, they shall be construed as
though they were also used in the feminine or neutral gender in
all cases where they would so apply. Wherever any words are used
herein in the singular form, they shall be construed as though
they were also used in the plural form in all cases where they
would so apply.
Titles used herein are for general information only and this Plan
and Trust is not to be construed by reference thereto.
21.03 PLAN DOES NOT CREATE NOR MODIFY EMPLOYMENT RIGHTS - The Plan and
Trust shall not be construed as creating or modifying any contract
of employment between the Employer and any Participant. All
Employees of the Employer shall be subject to discharge to the
same extent that they would have been if this Plan had never been
adopted.
21.04 COUNTERPARTS OF PLAN, TRUST AND ADOPTION AGREEMENT - This Plan and
Trust and Adoption Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and said
counterparts shall constitute but one and the same instrument and
may be sufficiently evidenced by any one counterpart.
21.05 STATE LAW WHICH GOVERNS - This Plan and Trust shall be governed by
the laws of the State of domicile of the Trustee to the extent
that they are not pre-empted by the laws of the United States of
America.
21.06 OBLIGATION OF TRUST - This Plan and Trust shall be binding upon
the parties hereto, upon each Participant and upon the
Beneficiaries, heirs, executors, administrators, distributees and
assigns of the individual Participants; the heirs, executors,
administrators, and successors of the Trustee; and the successors
and assigns of the Employer, subject, however, to the provisions
of Article XX hereof.
21.07 PARTICIPANT'S BENEFITS LIMITED TO ASSETS - Each Participant by his
participation in the Trust shall be conclusively deemed to have
agreed to look solely to the assets held under the Trust for the
payment of any benefit to which he may be entitled by reason of
his participation.
21.08 RECEIPT AND RELEASE FOR PAYMENTS - Any payment to any Participant,
his legal representative, Beneficiary, or to any guardian,
custodian or committee appointed for such Participant or
Beneficiary in accordance with the provisions of this Plan and
Trust, shall, to the extent thereof, be in full satisfaction of
all claims hereunder against the Trustee, the Employer and the
Insurer, any of whom may require such Participant, legal
representative, Beneficiary, guardian, custodian 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, Employer or Insurer.
-80-
<PAGE> 1
EXHIBIT 5.1
<PAGE> 2
[JENKENS & GILCHRIST LETTERHEAD]
May 31, 1995
Cash America International, Inc.
1600 West 7th Street
Fort Worth, Texas 76102
Re: Cash America International, Inc. - 1994 Long-Term Incentive
Plan Plan Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Cash America International, Inc., a Texas
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange commission on or about May 31, 1995 under the
Securities Act of 1933, as amended (the "Securities Act"), relating to
1,400,000 shares of the $.10 par value common stock (the "Common Stock") of the
Company that are offered on the exercise of the incentive stock options and
nonqualified stock options (collectively, the "Options") granted or that may be
granted under the Cash America International, Inc. Long-Term Incentive Plan
(the "Plan").
You have requested the opinion of this firm with respect to certain
legal aspects of the proposed offering. In connection therewith, we have
examined and relied upon the original, or copies identified to our
satisfaction, of (1) the Articles of Incorporation and the bylaws of the
Company, as amended; (2) minutes and records of the corporate proceedings of
the Company with respect to the establishment of the Plan, the issuance of
shares of Common Stock pursuant to the Plan and related matters; (3) the
Registration Statement and exhibits thereto, including the Plan; and (4) such
other documents and instruments as we have deemed necessary for the expression
of opinions herein contained. In making the foregoing examinations, we have
assumed the genuineness of all signatures and the authenticity of all documents
submitted to us as originals, and the conformity to original documents of all
documents submitted to us as certified or photostatic copies. As to various
questions of fact material to this opinion, and as to the content and form of
the Articles of Incorporation, the bylaws, minutes, records, resolutions and
other documents or writings of the Company, we have relied, to the extent we
<PAGE> 3
JENKENS & GILCHRIST
A PROFESSIONAL CORPORATION
Cash America International, Inc.
May 31, 1995
Page 2
deem reasonably appropriate, upon representations or certificates of officers
or directors of the Company and upon documents, records and instruments
furnished to us by the Company, without independent check or verification of
their accuracy.
Based upon our examination, consideration of, and reliance on the
documents and other matters described above, and subject to the comments and
exceptions noted below, we are of the opinion that the Company presently has
available at least 1,400,000 shares of authorized but unissued stock and/or
treasury shares from which the 1,400,000 shares of Common Stock proposed to be
sold pursuant to exercise of Options granted or to be granted under the Plan
may be issued. Assuming that (a) the Company maintains an adequate number of
authorized but unissued shares and/or treasury shares available for issuance to
those persons who exercise Options granted under the Plan, (b) the Options are
issued in accordance with the Plan, (c) the shares of Common Stock are issued
in accordance with the Plan and the associated option agreement for which such
shares are being issued, and (d) the consideration for shares of Common Stock
issued pursuant to such Options is actually received by the Company as provided
in the Plan and exceeds the par value of such shares, then the shares of Common
Stock issued pursuant to the exercise of the Options granted under and in
accordance with the terms of the Plan will be duly and validly issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to our firm included in or made a part
of the Registration Statement. In giving this consent, we do not admit that we
come within the category of person whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Securities and Exchange
commission thereunder.
Very truly yours,
JENKENS & GILCHRIST, a Professional
Corporation
By: /s/ L. STEVEN LESHIN
L. Steven Leshin
Authorized Signatory
<PAGE> 1
EXHIBIT 24.2
<PAGE> 2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Cash America International, Inc. on Form S-8, of our report dated January 27,
1995, on our audits of the consolidated financial statements and financial
statement schedule of Cash America International, Inc.
COOPERS & LYBRAND L.L.P.
Fort Worth, Texas
May 31, 1995
