As filed with the Securities and Exchange Commission on January 22, 1998.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HILB, ROGAL AND HAMILTON COMPANY
(Exact name of registrant as specified in its charter)
4235 Innslake Drive
Glen Allen, Virginia 23060
(Address of principal executive offices)
Registrant's telephone number, including area code
(804) 747-6500
Hilb, Rogal and Hamilton Company Profit Sharing Savings Plan and
HRH Frozen Merger and Acquisition Plan
(Full Title of Plan)
Virginia 54-1194795
(State or other (I.R.S.employer
jurisdiction of identification
incorporation or number)
organization)
Copy to:
Andrew L. Rogal, President Walter L. Smith, Esquire
Hilb, Rogal and Hamilton Company Hilb, Rogal and Hamilton Company
4235 Innslake Drive 4235 Innslake Drive
Glen Allen, Virginia 23060 Glen Allen, Virginia 23060
(804) 747-6500 (804) 747-6500
(Name, address and telephone
number of agent for service)
Approximate Date of Commencement of Proposed Sale to Public:
From time to time after the effective date of this Registration
Statement.
CALCULATION OF REGISTRATION FEE
Title of each Proposed Proposed
class of Amount maximum maximum Amount of
securities to to be offering price aggregate Registration
be registered(1) registered(2) per share(3) offering price(3) Fee(3)
Common stock 1,000,000 $17.875 $17,875,000 $5,273.13
without par
value
(1) In addition, pursuant to Rule 416c under the Securities Act of
1933, this registration statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the
employee benefit plans described herein.
(2) The amount of Common Stock registered hereunder includes
925,000 shares and 75,000 shares designated for use in
connection with the Registrant's Profit Sharing Savings Plan
and Frozen Merger and Acquisition Plan, respectively, and shall
be deemed to include any shares issuable as a result of a stock
split, stock dividend or other change in the capitalization of
the Registrant.
(3) Calculated on the basis of the average of the high ($18.00)
and low ($17.75) prices reported on the New York Stock
Exchange on January 20, 1998 as provided in Rule 457(c).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents By Reference
The following documents filed by the Registrant with
the Securities and Exchange Commission are incorporated herein by
reference and made a part hereof:
(1) the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1996, File No. 0-15981,
filed by the Registrant under Section 13(a) of the
Securities Exchange Act of 1934 (the "Exchange Act");
(2) all reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal
year covered by the Registrant's Annual Report on Form
10-K referred to in (1) above; and
(3) the description of the Registrant's Common Stock
contained in the Registrant's Form S-3 Registration
Statement, File No. 33-56488, effective March 1, 1993.
All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of 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 herein and to be a part hereof
from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such earlier statement.
Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of the
Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Walter L. Smith, Vice President, General Counsel and
Assistant Secretary of Hilb, Rogal and Hamilton Company, has
rendered his opinion that any Common Stock that constitutes
original issuance securities to be offered hereunder will, when
issued, be validly issued, fully paid and nonassessable.
As of January 22, 1998, Walter L. Smith was beneficial
owner of 9,980 shares of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers
Article 10 of Chapter 9 of Title 13.1 of the Code of
Virginia (the "Code") permits a Virginia corporation to indemnify
any director or officer for reasonable expenses incurred in any
legal proceeding in advance of final disposition of the
proceeding, if the director or officer furnishes the corporation
a written statement of his good faith belief that he has met the
standard of conduct prescribed by the Code, and a determination
is made by the board of directors that such standard has been
met. In a proceeding by or in the right of the corporation, no
indemnification shall be made in respect of any matter as to
which an officer or director is adjudged to be liable to the
corporation, unless the court in which the proceeding took place
determines that, despite such liability , such person is
reasonably entitled to indemnification in view of all the
relevant circumstances. In any other proceeding, no indemnifica
tion shall be made if the director or officer is adjudged liable
to the corporation on the basis that personal benefit was im
properly received by him. Corporations are given the power to
make any other or further indemnity, including advance of expen
ses, to any director or officer that may be authorized by the
articles of incorporation or any bylaw made by the shareholders,
or any resolution adopted, before or after the event, by the
shareholders, except an indemnity against willful misconduct or a
knowing violation of the criminal law. Unless limited by its
articles of incorporation, indemnification of a director or
officer is mandatory when he entirely prevails in the defense of
any proceeding to which he is a party because he is or was a
director or officer.
The Articles of Incorporation of the undersigned
Registrant contain provisions indemnifying the directors and
officers of the Registrant to the full extent permitted by
Virginia law. In addition, the Articles of Incorporation elimi
nate the personal liability of the Registrant's directors and
officers to the Registrant or its shareholders for monetary
damages for breach of their fiduciary duties to the full extent
permitted by Virginia law.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed on behalf of the
Registrant as part of this Registration Statement:
4.1 Articles of Incorporation of
Hilb, Rogal and Hamilton
Company (incorporated by
reference to Exhibit 4.1 to the
Registrant's Registration Statement
on Form S-3, File No. 33-56488,
effective March 1, 1993)
4.2 Amended and Restated
Bylaws of Hilb, Rogal and Hamilton
Company (incorporated by reference
to Exhibit 3.2 to the Registrant's
Form 10-K for the year ended Decem
ber 31, 1995, File No. 0-15981)
4.3 Hilb, Rogal and Hamilton
Company Profit Sharing Savings
Plan, and amendment effective
January 1, 1998
4.4 HRH Frozen Merger and
Acquisition Plan, and amendment
effective January 1, 1998
5 and
23.1 Opinion and Consent of
Walter L. Smith, Vice President,
General Counsel and Assistant
Secretary of the Registrant
23.2 Consent of Ernst & Young LLP
24 Powers of Attorney
(included on signature page)
The Registrant has obtained a determination letter
dated February 12, 1996 from the Internal Revenue Service (the
"IRS") that the Hilb, Rogal and Hamilton Company Profit Sharing
Savings Plan, as adopted on January 1, 1989, unless otherwise
indicates, is qualified under Section 401 of the Internal Revenue
Code (the "IRC"). The Registrant has obtained a determination
letter dated October 10, 1995 from the IRS that the HRH Frozen
Merger and Acquisition Plan, as adopted on January 1, 1989,
unless otherwise indicated, is qualified under Section 401 of the
IRC. The Registrant hereby undertakes that it will submit the
Plans, as amended and restated effective January 1, 1998, to the
IRS in a timely manner and will make all changes required by the
IRS in order to qualify the Plans, as so amended and restated.
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 ag
gregate, represent a fundamental change in
the information set forth in the registration
statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar value
of securities offered would not exceed that
which was registered) and any deviation from
the low or high and of the estimated maximum
offering range may be reflected in the form
of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no
more than 20 percent change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" label in
the effective registration statement; and
(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 paragraph
(a)(1)(i) and (a)(1)(ii) shall not apply if the
registration statement is on Form S-3 or Form S-8
or Form F-3, 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 Securities Exchange Act of
1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to
be a new registration statement relating to the
securities offered therein, and the offering of
such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove registration by means of a
post-effective amendment any of the 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 of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commis
sion such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceedings) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnifica
tion by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the under
signed, thereunto duly authorized, in the County of Henrico, Commonwealth
of Virginia, on this 22nd day of January, 1998.
HILB, ROGAL AND HAMILTON COMPANY
By: /s/Andrew L. Rogal
Andrew L. Rogal,
Chief Executive Officer
and President
POWER OF ATTORNEY
Each of the undersigned hereby appoints Andrew L. Rogal and Walter L.
Smith, either of whom may act individually, as attorneys-in-fact and agents
for the undersigned, with full power of substitution, for and in the name,
place and stead of the undersigned, to sign and file with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, any
and all amendments (including post-effective amendments) to this
Registration Statement, with any exhibits thereto, and any other documents
to be filed with the Securities and Exchange Commission pertaining to the
registration of securities covered hereby, with full power and authority to
do and perform any and all acts and things whatsoever requisite or
desirable.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Andrew L. Rogal President and Chief Executive January 22, 1998
Andrew L. Rogal Officer and Director
(Principal Executive Officer)
/s/ Robert H. Hilb Chairman and Director January 22, 1998
Robert H. Hilb
/s/ Carolyn Jones Senior Vice President, January 22, 1998
Carolyn Jones Chief Financial Officer
and Treasurer
(Principal Financial Officer)
/s/ Robert W. Blanton, Jr. Assistant Vice President January 22, 1998
Robert W. Blanton, Jr. and Controller
(Principal Accounting Officer)
/s/ Philip J. Faccenda Director January 22, 1998
Philip J. Faccenda
Director
J. S. M. French
Director
Robert S. Ukrop
/s/ Theodore L. Chandler, Jr. Director January 22, 1998
Theodore L. Chandler, Jr.
/s/ Norwood H. David, Jr. Director January 22, 1998
Norwood H. Davis, Jr.
Director
Thomas H. O'Brien
Pursuant to the requirements of the Securities Act of 1933,
Hilb, Rogal and Hamilton Company, as Plan Administrator, has duly
caused this registration statement to be signed on its behalf by
the undersigned thereunto duly authorized, in the County of
Henrico, Commonwealth of Virginia, on this 22nd day of
January, 1998.
HILB, ROGAL AND HAMILTON COMPANY
PROFIT SHARING SAVINGS PLAN
By: /s/ Jan Pouzar
Jan Pouzar, Assistant Vice
President
HILB, ROGAL AND HAMILTON COMPANY
FROZEN MERGER AND ACQUISITION PLAN
By: /s/ Jan Pouzar
Jan Pouzar, Assistant Vice
President
<PAGE>
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
FOR
HILB, ROGAL AND HAMILTON COMPANY
PROFIT SHARING SAVINGS PLAN
AND
HRH FROZEN MERGER AND ACQUISITION PLAN
Exhibit
Number Description of Exhibits
4.1 Articles of Incorporation
of Hilb, Rogal and Hamilton Company
(incorporated by reference to
Exhibit 4.1 to the Registrant's
Registration Statement on Form S-3,
File No. 33-56488, effective March
1, 1993)
4.2 Amended and Restated
Bylaws of Hilb, Rogal and Hamilton
Company (incorporated by reference
to Exhibit 3.2 to the Registrant's
Form 10-K for the year ended Decem
ber 31, 1995, File No. 0-15981)
4.3 Hilb, Rogal and Hamilton
Company Profit Sharing Savings
Plan, and amendment effective
January 1, 1998
4.4 HRH Frozen Merger and
Acquisition Plan, and amendment
effective January 1, 1998
5 and
23.1 Opinion and Consent of Walter
L. Smith, Vice President, General
Counsel and Assistant Secretary of
the Registrant
23.2 Consent of Ernst & Young LLP
24 Powers of Attorney
(included on signature page)
HILB, ROGAL AND HAMILTON COMPANY
PROFIT SHARING SAVINGS PLAN
As Amended and Restated
January 1, 1989
TABLE OF CONTENTS
ARTICLE PAGE
INTRODUCTION 1
ARTICLE I 4
DEFINITIONS
1.01 Adjustment 4
1.02 Affiliate 4
1.03 Annual Additions 4
1.04 Beneficiary 4
1.05 Board 5
1.06 Compensation 6
1.07 Contract 6
1.08 Contributions 6
1.09 Corporation 6
1.10 Credited Service 6
1.11 Current Balance 10
1.12 Deductible Account 10
1.13 Deductible Contributions 10
1.14 Defined Benefit Plan 11
1.15 Defined Contribution Plan 11
1.16 Delayed Retirement Date 11
1.17 Disability Retirement Date 11
1.18 Early Retirement Date 11
1.19 Effective Date 12
1.20 Elective Account 12
1.21 Elective Contributions 12
1.22 Employee 12
1.23 Employer 12
1.24 Employer Contribution Account 12
1.25 Employer Contribution 12
1.26 ERISA 13
1.27 Fiduciary 13
1.28 Forfeiture 13
1.29 Fund 13
1.30 Highly Compensated Employee 13
1.31 Hours of Service 16
1.32 Individual Account 18
1.33 Insurance Company 19
1.34 Investment Fund 19
1.35 IRC 19
1.36 Limitation Year 19
1.37 Matching Account 19
1.38 Matching Contributions 19
1.39 Maximum Compensation 19
1.40 Net Earnings 21
1.41 Non-Highly Compensated Employee 21
1.42 Non-Restricted Rollover Account 21
1.43 Normal Retirement Age 21
1.44 Normal Retirement Date 22
1.45 One Year Break in Service 22
1.46 Participant 23
1.47 Pension Rollover Account 23
ARTICLE PAGE
1.48 Plan 24
1.49 Plan Administrator 24
1.50 Plan Year 24
1.51 Prior Pension Plan 24
1.52 Prior Profit Sharing Plan 24
1.53 Prior Profit Sharing Plan Account 25
1.54 Restricted Rollover Account 25
1.55 Rollover Contributions 26
1.56 Salary Reduction Contribution Account 26
1.57 Salary Reduction Contributions 26
1.58 Total and Permanent Disability or Totally and
Permanently Disabled 26
1.59 Trust Agreement 26
1.60 Trustee 26
1.61 Valuation Date 26
1.62 Voluntary Employee Contribution Account 27
1.63 Voluntary Employee Contributions 27
1.64 Year of Service 27
ARTICLE II 29
ELIGIBILITY AND PARTICIPATION
2.01 Eligibility 29
2.02 Special Eligibility Provision for
Acquisitions 29
2.03 Eligibility on Reemployment 30
2.04 Participation 31
ARTICLE III 32
CONTRIBUTIONS AND ALLOCATIONS
3.01 Elective Contributions 32
3.02 Allocation of Elective Contributions 34
3.03 Matching Contributions 34
3.04 Allocation of Matching Contributions 35
3.05 Employer Contributions 35
3.06 Allocation of Employer Contributions 36
3.07 Voluntary Employee Contributions 37
3.08 Allocation of Voluntary Employee
Contributions 38
3.09 Salary Reduction Contributions 38
3.10 Allocation of Salary Reduction Contributions 39
3.11 Pension Rollover Contributions 39
3.12 Allocation of Pension Rollover Contributions 39
3.13 Deductible Contributions 40
3.14 Allocation of Deductible Contributions 40
3.15 Rollover Contributions 40
3.16 Allocation of Rollover Contributions 41
3.17 Allocation of Adjustment 41
3.18 Allocation of Forfeitures 44
3.19 Equitable Allocations 45
3.20 Interim Valuation of Fund 46
ARTICLE IV 47
LIMITATIONS ON CONTRIBUTIONS, MAXIMUM
BENEFITS AND REQUIRED DISTRIBUTION OF BENEFITS
4.01 Testing of Elective Contributions 47
4.02 Testing of Matching Contributions 51
4.03 Multiple Use Limitation 54
ARTICLE PAGE
4.04 Maximum Elective Contributions 56
4.04 Maximum Additions 57
4.05 Multiple Plan Participation 59
4.06 Required Distribution of Benefits 60
4.07 Distribution of Elective Contributions 61
ARTICLE V 62
DISTRIBUTIONS
5.01 Normal Retirement 62
5.02 Delayed Retirement 62
5.03 Early Retirement 63
5.04 Disability Retirement 64
5.05 Death Before Retirement or Termination of
Employment 66
5.06 Death After Retirement or Termination of
Employment 67
5.07 Termination of Employment 69
5.08 Method of Payment 81
5.09 Benefits to Minors and Incompetents 82
5.10 Maximum Option Payable 83
ARTICLE VI 84
WITHDRAWALS
6.01 Withdrawals Generally 84
6.02 Withdrawal of Voluntary Employee Contribution
Account 84
6.03 Withdrawal of Deductible Account 84
6.04 Withdrawal of Salary Reduction Contributions
and Elective Contributions 84
ARTICLE VII 88
FUNDING
7.01 Contributions 88
7.02 Trustee 88
7.03 Contract Fund or Funds 90
7.04 Direction of Investment of Contributions 91
7.05 Change in Direction of Investment of
Contributions 92
7.06 Change in Direction of Investment of Prior
Contributions 93
ARTICLE VIII 95
FIDUCIARIES AND PLAN ADMINISTRATION
8.01 General 95
8.02 Corporation 96
8.03 Trustee 96
8.04 Insurance Company 97
8.05 Plan Administrator 97
8.06 Claims for Benefits 98
8.07 Claims Procedures 99
8.08 Records 100
8.09 Missing Persons 101
ARTICLE IX 102
AMENDMENT AND TERMINATION OF THE PLAN
9.01 Amendment of the Plan 102
9.02 Termination of the Plan 102
ARTICLE PAGE
ARTICLE X 104
PROVISIONS RELATIVE TO EMPLOYERS INCLUDED IN PLAN
10.01 Method of Participation 104
10.02 Withdrawal 104
ARTICLE XI 106
TOP HEAVY PLAN PROVISIONS
11.01 General 106
11.02 Definitions 106
11.03 Minimum Top Heavy Contribution 109
11.04 Defined Benefit Plan Minimum Accrued Benefit 110
11.05 Multiple Plan Participation 110
11.06 No Duplication of Minimum Benefit 110
11.07 Top Heavy Assumptions 110
ARTICLE XII 112
MISCELLANEOUS
12.01 Governing Law 112
12.02 Construction 112
12.03 Expenses 112
12.04 Participant's Rights; Acquittance 112
12.05 Spendthrift Clause 112
12.06 Merger, Consolidation or Transfer 113
12.07 Mistake of Fact 113
12.08 Indemnification 114
12.09 Counterparts 114
12.10 Maximum Deductible Contribution 114
12.11 Payment of Contributions Made by the Employer 114
12.12 Notification of Individual Account and
Deductible Account Balance 115
12.13 Exclusive Benefit 115
ADOPTION OF THE PLAN 116
INTRODUCTION
Prior to becoming members of a controlled group of
corporations, the following companies maintained the following
employee benefit plans for the benefit of their respective
employees:
Meuche, Hickman and Snow Agency, Inc. Employees' Profit
Sharing Trust
Leide Associates Profit Sharing Plan and Trust
Baumhauer-Croom Insurance Employees' Profit Sharing Retirement
Plan and Trust Agreement
The Jackson Agency Profit Sharing Plan
Insurance Management Corporation of Charlottesville Employees'
Profit Sharing Plan and Trust
Hamilton and Shackelford, Inc. Profit Sharing Plan and Trust
Mutual Insurers Incorporated Profit Sharing Trust
Hilb, Rogal and Hamilton Profit Sharing Plan and Trust
Rogal Company, Inc. Pension Plan and Trust
The Herndon, Iles and Scott, Inc. Split Funded Money Purchase
Pension Plan
Insurance Management Center, Inc. (formerly known as LaBonne,
Jones-Mulvihill, Inc.) Pension Trust
Hilb, Rogal and Hamilton Company purchased the companies which
are now one hundred percent (100%) owned subsidiaries. In order
to establish a program more consistent with corporate objectives
and to cover all employees of Hilb, Rogal and Hamilton Company
and its subsidiaries, the eight (8) defined contribution plans
and the one (1) money purchase plan were amended and restated
effective as of January 1, 1983, into the Hilb, Rogal and
Hamilton Company Profit Sharing Plan. Assets of all the plans
were merged into the Plan as amended and restated effective
January 1, 1983, and all employees covered by the plans became
one hundred percent (100%) vested in their account balances which
are held in a separate account as a part of this amended and
restated Plan and are one hundred percent (100%) vested at all
times under this Plan.
Benefit accruals under the two (2) defined benefit pension
plans were ceased effective as of April 12, 1983, and both plans
were terminated effective as of July 31, 1983, and all employees
effected became one hundred percent (100%) vested in their
accrued benefit under such plans. Upon approval by the Pension
Benefit Guaranty Corporation and the Internal Revenue Service,
employees were given the option of either (a) the purchase of a
deferred annuity or (b) a rollover of the lump sum value of
their benefit under their plan to this Plan. All excess assets
upon termination of the two (2) defined benefit pension plans
were allocated to the affected employees and any amount which an
employee elected to rollover into this Plan is held in a separate
account as a part of this Plan and are one hundred percent (100%)
vested at all times under this Plan.
In addition, effective as of January 1, 1983, the following
subsidiaries of Hilb, Rogal and Hamilton Company became
participating Employers under the Plan:
Insurance Management Corporation of South Florida
Insurance Management Corporation of Tampa Bay
Insurance Management Corporation of Tidewater
Percy H. Goodwin Insurance Services
Underwood-Dawson
The amended and restated Employees' Profit Sharing Plan of
Hilb, Rogal and Hamilton Company which became effective January
1, 1983, constituted an amendment to the earlier plans'
provisions, rather than a replacement of such plans. The
provisions of the plans as in effect immediately prior to the
January 1, 1983 amendment and restatement, modified by Section
9.02 of the amended and restated Plan, remained in effect for
those Participants who were or are not actively employed by the
participating Employers at any time after such date. The assets
under the prior plans continued to be held pursuant to the Plan
as amended and restated effective January 1, 1983.
The Plan has been amended from time to time since 1983 with
the most recent amendment and restatement being effective January
1, 1987.
The amended and restated Profit Sharing Savings Plan herein
contained constitutes an amendment, effective January 1, 1989,
unless otherwise specifically indicated, to the earlier Plan
provisions, rather than a replacement of such Plan. The Plan
provisions as in effect immediately prior to this January 1,
1989, amendment and restatement, modified by Section 9.02 of this
amended and restated Plan, shall remain in effect for those
Participants who are not actively employed by the participating
Employers at any time after such date. The assets held under the
1983 Trust Agreement will continue to be held pursuant to the
Plan as herein amended.
The purpose of this Plan, which shall be qualified as a profit
sharing plan under applicable governmental rules, is to provide
additional incentive and retirement security for eligible
employees of participating employers.
It is intended that this amended and restated Plan, together
with the Trust Agreement, meet all the requirements of the
Internal Revenue Code of 1986 ("IRC"), as amended, and the Plan
shall be interpreted, wherever possible, to comply with the terms
of the IRC and all formal regulations and rulings issued under
the IRC and amendments thereto.
Effective January 1, 1989, or as otherwise specifically
indicated herein, the Plan as amended and restated has the terms
and provisions hereinafter set forth.
ARTICLE I
DEFINITIONS
As used herein and in the concomitant Trust Agreement, unless
otherwise required by the context, the following words and
phrases shall have the meanings indicated:
1.01 Adjustment means the net increases and
decreases in the market value of the Fund during a Plan
Year or other period exclusive of any Contributions during
such year or other period. Such increases and decreases
shall include such items as realized or unrealized
investment gains and losses, investment income, and may
include expenses of administering the Fund and the Plan.
The Adjustment shall not include Forfeitures.
1.02 Affiliate means an organization which is a
member of the same controlled group of organizations as the
Employer as defined in IRC Sections 414(b), 414(c), 414(m),
and 414(o), but which is not an Employer.
1.03 Annual Additions means for any Employee in any Limitation Year,
the sum of (a) Contributions made by the Employer including excess
Elective Contributions returned under Section 4.01 and
Section 4.04 and any excess Matching Contributions
distributed under Section 4.02 and any Matching
Contributions forfeited under the Provisions of Section
4.02 and 4.04, (b) Contributions made by the Participants,
(c) Forfeitures, (d) amounts allocated after March 31, 1984
to an individual medical account, as defined in IRC
Section 415(l)(2), which is part of a pension or annuity
plan maintained by the Employer and (e) amounts derived
from contributions paid or accrued in taxable years after
December 31, 1985 which are attributable to post retirement
medical benefits allocated to the separate account of a Key
Employee under a welfare benefit fund, as defined in IRC
Section 419(e), maintained by the Employer.
1.04 Beneficiary means any person designated by a
Participant or otherwise entitled to receive any benefits
that become payable hereunder after the death of a
Participant.
Each Participant shall designate a Beneficiary in
writing on forms furnished by the Plan Administrator, and
all beneficiary designation forms shall be maintained in
files held by the Plan Administrator. A Participant from
time to time may change his Beneficiary by written notice
to the Plan Administrator and upon such change, the rights
of all previously designated Beneficiaries to receive any
benefits under this Plan shall cease.
If, at the date of death of the Participant, there is
no valid and current Beneficiary designation on file with
the Plan Administrator, then any death benefits which would
have been payable to the Beneficiary shall be payable to
the Participant's spouse, if any; if none, equally to the
Participant's surviving children, if any; or, if none, then
to the Participant's estate. The interpretation of the
Plan Administrator with respect to any Beneficiary
designation, subject to applicable law, shall be binding
and conclusive upon all parties, and no person who claims
to be a Beneficiary, or any other person, shall have any
right to question any action of the Plan Administrator,
which in the judgment of the Plan Administrator fulfills
the intent of the Participant who filed such designation.
If a Beneficiary designated by a Participant is not the
Participant's spouse, then the spouse's written consent
shall be required for the designation of the alternate
Beneficiary to become effective and such consent must be
limited to a benefit for a specific alternate Beneficiary,
form of benefits or both and must acknowledge the effect of
the consent. Such consent shall be witnessed by the Plan
Administrator, a representative of the Plan Administrator
or a notary public. Any change in the designation of an
alternate Beneficiary shall also require the written
consent of the spouse for such change to become effective.
The Plan Administrator may accept an election other than
that provided hereunder without the written consent of the
spouse if there is no spouse, the spouse cannot be located,
or such other circumstances exist as may be prescribed by
regulations. Any spousal consent shall be applicable only
to the spouse granting such consent and apply only to the
Beneficiary with respect to which such consent was granted.
1.05Board means the board of directors of the
Corporation.
1.06 Compensation means the earnings paid to the
Employee in the calendar year or the portion of the
calendar year in which an Employee is eligible to
participate in the Plan prior to withholding by the
Employer including commissions, overtime payments, Elective
Contributions made to the Plan and any other amounts which
the Employee could have elected to receive as cash in the
current year as taxable income in lieu of a non-taxable
benefit under a plan which is maintained by the Employer
pursuant to IRC Section 125. Compensation shall not
include bonuses, fringe benefits, other extra ordinary
compensation and any contributions by the Employer other
than Elective Contributions as hereinbefore provided to
this or any other employee benefit program. Reference
herein to Compensation with respect to any period of time
shall mean the total Compensation as defined in the
preceding sentence of an Employee for such period.
In no event shall Compensation during a Plan Year
exceed two hundred thousand dollars ($200,000) or such
larger amount as may be determined by the Secretary of the
Treasury pursuant to IRC Section 401(a)(17), provided that
the increase determined as of January 1 of a calendar year
by the Secretary of the Treasury shall be effective for
Plan Years beginning in such calendar year. In determining
the Compensation of a Participant for purposes of this
limit, the rules of IRC Section 414(q)(6) shall apply,
except in applying such rules, the term "family" shall
include only the spouse of the Participant and any lineal
descendants of the Participant who have not attained age
nineteen (19) before the close of the year. If, as a
result of the application of such rules, the adjusted two
hundred thousand dollar ($200,000) limit is exceeded, then
the limitation shall be prorated among the affected
individuals in proportion to each such individual's
Compensation as determined under this Section prior to the
application of the limit.
For Plan Years beginning on or after January 1, 1994,
Compensation shall not exceed one hundred fifty throusand
dollars ($150,000), as adjusted by the Secretary for
increases in the cost of living in accordance with IRC
Section 401(a)(17)(b) and for Plan Years beginning after
December 31, 1993 such adjustment for inflation after 1994
by the Secretary shall be done at the same time and in the
same manner as under IRC Code Section 415(d), except that
the base period for purposes of IRC Section 415(d)(1)(A)
shall be the calendar quarter beginning October 1, 1993.
The cost of living adjustment in effect for a calendar year
applies to any period, not to exceed twelve (12) months,
over which Compensation is determined beginning in such
calendar year. If a period consists of fewer than twelve
(12) months, then the limit will be multiplied by a
fraction, the numerator of which is the number of months in
the short period and the denominator of which is twelve
(12). If Compensation for any prior period is taken into
account in determining benefits under the Plan in the
current Plan Year, the Compensation for that period shall
be subject to the one hundred fifty thousand dollar
($150,000) limit, as adjusted.
1.07 Contract means an immediate participation
group annuity contract or contracts or any other type of
annuity contract or contracts issued by an Insurance
Company to effect the purposes of the Plan.
1.08 Contributions means payments as provided
herein by the Employer and/or the Participants or Employees
for the purpose of providing the benefits under this Plan.
1.09 Corporation means Hilb, Rogal and Hamilton
Company, a Virginia corporation, or any successor thereto.
The Corporation is the sponsor, named Fiduciary and
administrator of the Plan for purposes of ERISA as it
relates to the employees of each Employer.
1.10 Credited Service means as of any date the sum of past
Credited Service, if any, under Section 1.10(a) and
future Credited Service under Section 1.10(b), subject
to Section 1.10(c), if applicable.
1.10(a)Past Credited Service shall be granted in
accordance with the following:
1.10(a)(i)Employees who were participants in a
Prior Profit Sharing Plan or Prior
Pension Plan on December 31, 1982, shall
be granted past service credit. Past
service shall be determined in
accordance with the applicable Prior
Profit Sharing Plan or Prior Pension
Plan under which the Employee was
covered assuming such coverage through
the end of the plan year which commenced
in 1982.
1.10(a)(ii)If an Employee
was employed on December 31, 1982, by an
Employer maintaining a Prior Profit
Sharing Plan or Prior Pension Plan but
was not a participant in such Prior
Profit Sharing Plan or Prior Pension
Plan, he shall receive credit for past
service. Past service shall mean the
number of years and months of continuous
employment by such Employer of an
Employee from his most recent hiring
date prior to January 1, 1983, until
December 31, 1982, rounded up to the
next full year.
1.10(a)(iii) If an Employee was employed by Insurance Management
Corporation of South Florida, Insurance
Management Corporation of Tampa Bay,
Insurance Management Corporation of
Tidewater, Percy H. Goodwin Insurance
Services or Underwood-Dawson on December
31, 1982, he shall receive credit for
past service. Past service for any such
Employee shall mean the number of years
and months of continuous employment by
such Employer of an Employee from his
most recent hiring date prior to January
1, 1983, until December 31, 1982,
rounded up to the next full year.
1.10(b)For periods commencing on or after January 1, 1983,
an Employee shall receive Credited Service for the
total number of Plan Years during which he has been
credited with one thousand (1,000) Hours of Service
during the period of time commencing on the later
of (i) January 1, 1983, or (ii) if Section 1.10(c)
is applicable, the first day of a Plan Year
coincident with or immediately preceding the
applicable reemployment date.
1.10(c)If a terminated Participant whose vested benefit
under Section 5.07 is zero at his date of
termination is subsequently reemployed and again
becomes a Participant, his Credited Service shall
not include any periods of employment prior to his
reemployment if the Participant's consecutive One
Year Breaks in Service as of his reemployment date
equals or exceeds the greater of (i) five (5)
consecutive One Year Breaks in Service or (ii) the
Participant's Credited Service as of his
termination date. However, the provisions of
Section 1.10(c)(i) shall only apply to Employees
actively participating in the Plan for periods on
and after the first day of the Plan Year following
December 31, 1984.
For purposes of determining the vested percentage in
Section 5.07:
1.10(d)Periods of employment with an Affiliate which would
have constituted Credited Service had the Employee
been employed by the Employer shall be included as
if such periods had been performed for the
Employer; and
1.10(e)Periods of employment with the Employer other than
as an Employee which would have constituted
Credited Service had the Employee been employed as
an Employee shall be included as if such periods
had been performed as an Employee.
If an Employee is simultaneously in the employ of more
than one Employer or is transferred from the employment of
one Employer to the employment of another Employer, the
number of Hours of Service completed during any twelve (12)
consecutive month period shall be the sum of the number of
Hours of Service completed for all Employers during such
period.
1.11 Current Balance as used in regard to a
Participant's Individual Account and Deductible Account or
stipulated portion thereof, means, as of any date:
1.11(a)The Participant's Individual Account balance or
stipulated portion thereof as of the last Valuation
Date minus any distributions or Forfeitures from
such Individual Account occurring since the last
Valuation Date plus any Elective Contributions made
on behalf of a Participant and any Rollover
Contributions made to the Plan subsequent to the
last Valuation Date.
1.11(b)The market value of the Participant's Deductible
Account as of the last Valuation Date, minus any
distributions or withdrawals from his Deductible
Account occurring since the last Valuation Date.
1.12 Deductible Account means the detailed record kept of
the amount held on behalf of Participants attributable to
Deductible Contributions previously made to the Plan pursuant to
Section 3.13 and the Participant's proportionate share of
the Adjustment attributable to his Deductible Account.
1.13 Deductible Contributions means payments made previously to the Fund by
an Employee pursuant to Section 3.13 for periods through
December 31, 1986.
1.14 Defined Benefit Plan means a plan established and qualified
under IRC Section 401 or 403, except to the extent it is, or is
treated as, a Defined Contribution Plan.
1.15 Defined Contribution Plan means a plan established and qualified
under IRC Section 401 or 403, which provides for an
individual account for each participant therein and for
benefits based solely on the amount contributed to each
participant's account and any income and expenses or gains
or losses (both realized and unrealized) which may be
allocated to such accounts.
1.16 Delayed Retirement Date means the first day of the month
coinciding with or next following the Participant's date of
termination of employment after his Normal Retirement Date.
1,17 Disability Retirement Date means the first day of the month coinciding
with or next following the date the Participant is
determined to be Totally and Permanently Disabled.
1.18 Early Retirement Date means the first day of the month
coinciding with or next following the Participant's date
of termination of employment prior to his Normal Retirement
Date provided that the Participant has attained the age of
fifty-five (55) and completed at least ten (10) years of Credited
Service. Notwithstanding the preceding, if a participant
who was covered under the provisions of the Meuche, Hickman
and Snow Agency, Inc. Employee Profit Sharing Trust had
attained the age of fifty-five (55) as of December 21,
1983, the date the Plan as amended and restated effective
January 1, 1983, was adopted, his Early Retirement Date
shall be the first day of the month following his
attainment of age fifty-five (55).
1.19 Effective Date means for this amended and
restated Plan January 1, 1983, or such later date as of
which an Employer adopts the Plan for its Employees.
1.20 Elective Account means that portion of a Participant's
Individual Account attributable to the Elective Contributions
allocated to such Participant under Section 3.02 and the Participant's
proportionate share of the Adjustment attributable to his
Elective Account.
1.21 Elective Contributions means Contributions made by an Employer
pursuant to Section 3.01.
1.22 Employee means any person employed by the
Employer including officers, any director who is active in
the business of the Employer in a capacity other than as
director only and any person considered a leased employee.
A leased employee is a person other than an Employee of the
Employer who pursuant to an agreement between the Employer
and any other person (leasing organization) has performed
services for the Employer or for the Employer and related
persons, determined in accordance with IRC Section
414(n)(6), on a substantially full time basis for a period
of at least one year, and such services are of a type
historically performed by employees in the business field
of the Employer. Contributions or benefits provided a
leased employee by the leasing organization attributable to
services performed for the Employer shall be treated as
provided by the Employer. A leased employee shall not be
considered an Employee if the leasing organization provides
a non-integrated money purchase pension plan which provides
for a ten percent (10%) contribution rate, immediate
vesting and participation and if leased employees
constitute less than twenty percent (20%) of the Employer's
non-highly compensated workforce.
1.23 Employer means, collectively or individually
as the context may indicate, the Corporation and any other
organization which (a) is a member of the same controlled
group of organizations as the Corporation, as defined in
IRC Sections 414(b), (c), (m) and (o), (b) the Board has
authorized to adopt the Plan and (c) by taking appropriate
action has adopted the Plan and become signatory to the
Trust Agreement, or any successor to one or more of such
entities.
1.24 Employer Contribution Account means that portion of a Participant's
Individual Account attributable to the Employer
Contributions allocated to such Participant pursuant to
Section 3.06 and the Participant's proportionate share of
the Adjustment attributable to his Employer Contribution
Account.
1.25 Employer Contribution means Contributions made to the Fund by an
Employer pursuant to Section 3.05.
1.26 ERISA means the Employee Retirement Income
Security Act of 1974, as amended. Any reference to any
Section of ERISA shall be deemed to include any applicable
regulations pertaining to such Section.
1.27 Fiduciary means the Corporation, Employer,
Trustee, Plan Administrator and any individual,
corporation, firm or other entity which assumes, in
accordance with Article VIII, responsibilities of the
Corporation, Employer, Trustee or Plan Administrator
respecting management of the Plan or the disposition of its
assets.
1.28 Forfeiture means any amount held upon the
termination of employment of a Participant which he is not
entitled to receive as a distribution in accordance with
the terms of Section 5.07.
1.29 Fund means the trust fund and contract fund or funds
created in accordance with Article VII.
1.30 Highly Compensated Employee means:
1.30(a)Any employee who during the Plan Year or preceding
twelve month (12) period meets one of the following
criteria --
(i) was at any time a Five Percent (5%) Owner of
the Employer or Affiliate;
(ii)received Maximum Compensation from the
Employer or Affiliate in excess of seventy-
five thousand dollars ($75,000) (or such
larger amount as may be determined by the
Secretary of Treasury);
(iii)received Maximum Compensation from the
Employer or Affiliate in excess of fifty
thousand dollars ($50,000) (or such larger
amount as may be determined by the Secretary
of Treasury) and was in the top-paid group
consisting of the top twenty percent (20%) of
the employees (considering all employees of
the Employer or Affiliate) when ranked on the
basis of Maximum Compensation during such
Plan Year; or
(iv)was at any time an officer and received
Maximum Compensation greater than fifty
percent (50%) of the amount in effect under
IRC Section 415(b)(1)(A) for such Plan Year.
If, for any Plan Year, no officer of the
Employer or Affiliate is identified pursuant
to this Section, the highest paid officer of
the Employer or Affiliate for such Plan Year
shall be treated as a Highly Compensated
Employee. No more than fifty (50) employees
or, if lesser, the greater of three (3)
employees or ten percent (10%) of the
employees, shall be treated as officers.
An employee shall be considered a Highly
Compensated Employee for purposes of Section
1.30(a)(i) if he was a Five Percent (5%) Owner of
the Employer or Affiliate in the Plan Year of
determination or the preceding Plan Year. An
employee shall not be considered a Highly
Compensated Employee for purposes of Sections
1.30(a)(ii), 1.30(a)(iii) and 1.30(a)(iv) if he was
a Highly Compensated Employee in the current Plan
Year but was not a Highly Compensated Employee in
the preceding Plan Year unless such employee is a
member of the group consisting of the one hundred
(100) employees paid the greatest Maximum
Compensation by the Employer or an Affiliate during
the Plan Year for which such determination is being
made.
If an employee is a Family Member of another
employee who is (i) a Five Percent (5%) Owner of
the Employer or Affiliate, or (ii) one (1) of the
top ten (10) highest paid employees of the Employer
or Affiliate in the current or preceding Plan Year,
the Maximum Compensation paid to and Contributions
made on behalf of such Family Member shall be
deemed to have been made on behalf of such
employee. In calculating the Maximum Compensation
paid to such Family Member, the Maximum
Compensation of the Employee, the Employee's spouse
and any lineal descendants under the age of
nineteen (19) shall be limited to two hundred
thousand dollars ($200,000), as adjusted by the
Secretary of Treasury.
For Plan Years beginning on or after January 1,
1994, Maximum Compensation shall not exceed one
huundred fifty throusand dollars ($150,000), as
adjusted by the Secretary for increases in the cost
of living in accordance with IRC Section
401(a)(17)(b) and for Plan Years beginning after
December 31, 1993 such adjustment for inflation
after 1994 by the Secretary shall be done at the
same time and in the same manner as under IRC
Section 415(d), except that the base period for
purposes of IRC Section 415(d)(1)(A) shall be the
calendar quarter beginning October 1, 1993. The
cost of living adjustment in effect for a calendar
year applies to any period, not to exceed twelve
(12) months, over which Maximum Compensation is
determined beginning in such calendar year. If a
period consists of fewer than twelve (12) months,
then the limit will be multiplied by a fraction,
the numerator of which is the number of months in
the short period and the denominator of which is
twelve (12). If Maximum Compensation for any prior
period is taken into account in determining
benefits under the Plan in the current Plan Year,
the Maximum Compensation for that period shall be
subject to the one hundred fifty thousand dollar
($150,000) limit, as adjusted.
Any former employee shall be treated as a Highly
Compensated Employee if such employee was a Highly
Compensated Employee (i) when he terminated
employment, or (ii) in any year following
attainment of age fifty-five (55). In addition, an
employee who works only a de minimis amount of
service may be considered a Highly Compensated
Employee.
1.30(b)The following employees shall be excluded for
purposes of determining who is in the top-paid
group under Section 1.30(a)(iii):
(i) employees who have not completed six (6)
months of service;
(ii)employees who normally work less than
seventeen and one-half (17 1/2) hours per
week;
(iii)employees who normally work not more than six
(6) months during any year;
(iv)employees who have not attained age twenty-
one (21);
(v) except to the extent provided in regulations,
employees who are included in a collective
bargaining agreement between employee
representatives and an Employer or Affiliate;
and
(vi)employees who are nonresident aliens and who
receive no earned income [within the meaning
of IRC Section 911(d)(2)] from an Employer or
Affiliate which constitutes income from
sources within the United States [within the
meaning of IRC Section 861(a)(3)].
1.30(c)For purposes of this Section and Sections 4.01 and
4.02, the following definitions shall apply:
(i) The term "Family Member" as used herein shall
mean with respect to any employee, such
employee's spouse and lineal ascendants or
descendants and the spouses of such lineal
ascendants or descendants.
(ii)The term "Five Percent (5%) Owner" shall have
the same meaning as specified in IRC Section
416(i).
1.30(d)The determination of Maximum Compensation for
purposes of determining who is a Highly Compensated
Employee shall be made without regard to IRC
Sections 125, 402(a)(8), and 402(h)(1)(B), and in
the case of contributions by the Employer made
pursuant to a salary reduction agreement, without
regard to IRC Section 403(b).
1.31 Hours of Service means the sum of:
1.31(a)Each hour for which an employee is paid or entitled
to payment for the performance of duties for the
Employer during the applicable computation period.
1.31(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 or leave of absence.
However, the determination of hours under this
Section 1.31(b) shall be subject to the following
restrictions:
(i) No more than five hundred one (501) hours
shall be credited to an employee during any
single continuous period during which the
employee performs no duties (whether or not
such period occurs in a single computation
period).
(ii)No hours shall be credited to an employee if
payment is made or due under a plan
maintained solely for the purpose of
complying with applicable workers'
compensation, unemployment or disability
insurance laws.
(iii)Hours shall not be credited for a payment
which solely reimburses an employee for
medical or medically related expenses
incurred by the employee.
1.31(c)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 due to
military duty and any other periods in which an
employee was not paid or entitled to payment and
presumably would have performed services for the
Employer but for the fact that the employee was on
a military leave of absence for service in the
armed forces of the United States of America,
provided that the employee entered such service
directly from the employ of the Employer and was
discharged from such service and reemployed by the
Employer within the period during which his
employment rights as a veteran are protected by
law.
1.31(d)Each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed
to by the Employer; provided, that the same hours
shall not be credited under Section 1.31(a),
Section 1.31(b), or Section 1.31(c), as the case
may be, and under this Section 1.31(d).
Hours of Service shall not include any period during
which the Employee was employed by a predecessor of the
Employer, unless the predecessor's organization maintained
the Plan or a predecessor plan or credit for such period of
employment is otherwise granted under the provisions of the
Plan.
Hours of Service under Sections 1.31(a), 1.31(c) and
1.31(d) shall be determined from the Employer records.
Hours of Service under Section 1.31(b) shall be determined
in accordance with Department of Labor Regulation Section
2530.200b-2. Hours of Service hereunder shall be credited
to the appropriate computation period in accordance with
Department of Labor Regulation Section 2530.200b-2(c).
Notwithstanding anything herein to the contrary,
nothing in this Section 1.31 shall be construed to alter,
amend, modify, invalidate, impair or supersede any law of
the United States or any rule or regulation issued under
any such law.
1.32 Individual Account means the detailed record kept of the amounts
credited or charged to each individual in accordance with
the terms of the Plan. An Individual Account is
established for each Participant and is comprised of an
Employer Contribution Account, a Matching Account, an
Elective Account, a Salary Reduction Contribution Account,
a Voluntary Employee Contribution Account, a Pension
Rollover Account or Prior Profit Sharing Plan Account, if
applicable, a Restricted Rollover Account and a Non-
Restricted Rollover Account.
1.33 Insurance Company means any life insurance company or companies licensed to
do business in the Commonwealth of Virginia with which the
Employer has entered into a Contract or Contracts for the
purposes of providing benefits under the Plan or to invest
Contributions thereunder.
1.34 Investment Fund means an Investment Fund
as described in Article VII.
1.35 IRC means the Internal Revenue Code of 1986, as
amended. Any reference to any section of the IRC shall be
deemed to include any applicable regulations and rulings
pertaining to such section and also shall be deemed a
reference to comparable provisions of future laws.
1.36 Limitation Year means the twelve (12) month period
commencing on January 1 and ending on December 31.
1.37 Matching Account means that portion of Individual Account
attributable to the Matching Contributions allocated to
such Participant pursuant to Section 3.04 and the Participant's
proportionate share of the Adjustment attributable to his
Matching Account and Forfeitures allocated to such
Participant pursuant to Section 3.18(b).
1.38 Matching Contributions means Contributions made by an Employer
pursuant to Section 3.03.
1.39 Maximum Compensation means a Participant's earned income, wages,
salaries, fees for professional services and other amounts
received for personal services actually rendered in the
course of employment with an Employer maintaining the Plan
(including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses,
fringe benefits, reimbursements and expense allowances) and
excluding the following:
1.39(a)Employer contributions to a plan of deferred
compensation to the extent contributions are not
included in the gross income of the Employee for
the taxable year in which contributed, or on behalf
of an Employee to a simplified employee pension
plan to the extent such contributions are
deductible under IRC Section 404(h), and any
distributions from a plan of deferred compensation
whether or not includable in the gross income of
the Employee when distributed.
1.39(b)Amounts realized from the exercise of a non-
qualified stock option, or when restricted stock
(or property) held by an Employee becomes freely
transferable or is no longer subject to a
substantial risk of forfeiture;
1.39(c)Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified
stock option; and
1.39(d)Other amounts which receive special tax benefits,
or contributions made by an Employer (whether or
not under a salary reduction agreement) towards the
purchase of an IRC Section 403(b) annuity contract
(whether or not the contributions are excludable
from the gross income of the Employee).
Maximum Compensation for any Limitation Year is the
compensation actually paid or includable in gross income
during such year. For Limitation Years commencing on and
after January 1, 1989, Maximum Compensation shall be
limited to two hundred thousand dollars ($200,000) or such
larger amount as may be determined by the Secretary of the
Treasury, pursuant to IRC Section 401(a)(17).
For Plan Years beginning on or after January 1, 1994,
Maximum Compensation shall not exceed one huundred fifty
throusand dollars ($150,000), as adjusted by the Secretary
for increases in the cost of living in accordance with IRC
Section 401(a)(17)(b) and for Plan Years beginning after
December 31, 1993 such adjustment for inflation after 1994
by the Secretary shall be done at the same time and in the
same manner as under IRC Code Section 415(d), except that
the base period for purposes of IRC Section 415(d)(1)(A)
shall be the calendar quarter beginning October 1, 1993.
The cost of living adjustment in effect for a calendar year
applies to any period, not to exceed twelve (12) months,
over which Maximum Compensation is determined beginning in
such calendar year. If a period consists of fewer than
twelve (12) months, then the limit will be multiplied by a
fraction, the numerator of which is the number of months in
the short period and the denominator of which is twelve
(12). If Maximum Compensation for any prior period is
taken into account in determining benefits under the Plan
in the current Plan Year, the Maximum Compensation for that
period shall be subject to the one hundred fifty thousand
dollar ($150,000) limit, as adjusted.
Maximum Compensation for purposes of determining who is
a Key Employee shall include Sections 1.39(a) and 1.39(d).
This definition shall be interpreted consistent with
IRC Section 415. Further, such law and regulations shall
be controlling in all determinations under this definition,
inclusive of any provisions and requirements stated
thereunder but hereinabove absent.
1.40 Net Earnings means for any Plan Year the
Employer's net income or surplus for such year determined
by the Employer upon the basis of its books of account for
tax purposes or in accordance with generally accepted
accounting principles without any deduction for taxes based
upon income, if any, or for Contributions made by the
Employer under this Plan.
1.41 Nondiscrimination Compensation means, for each Participant,
that portion of his total compensation for the Plan Year or
for the period of time during the Plan Year during which a
Participant is eligible to participate in the Plan which
would be nondiscriminatory within the meaning of IRC
Section 414(s) and the regulations issued thereunder. The
Plan Administrator shall determine the Nondiscrimination
Compensation of each Participant from year to year and such
determination shall be made consistently among all
Participants to the extent required by IRC Section 414(s)
and the regulations issued thereunder.
1.42 Non-Highly Compensated Employee Compensated Employee means any
Employee who is not a Highly Compensated Employee.
1.43 Non-Restricted Rollover Account means the portion of the Individual
Account established on behalf of an Employee to hold the
amount he elects to rollover into this Plan that is not
subject to the restrictions of IRC Section 401(k) and the
proportionate share of the Adjustment attributable to the
Non-Restricted Rollover Account. A Non-Restricted Rollover
Account shall be established for an Employee who elects to
make a Rollover Contribution to this Plan which is not
subject to the restrictions of IRC Section 401(k) and shall
become a part of the Fund held pursuant to the provisions
of this Plan. All amounts held in the Non-Restricted
Rollover Account shall at all times be one hundred percent
(100%) vested.
1.44 Normal Retirement Age means age sixty-five (65). Notwithstanding the
preceding, if a Participant was covered under the
provisions of The Jackson Agency Profit Sharing Plan as of
December 21, 1983, the date the Plan as amended and
restated effective January 1, 1983, was adopted, Normal
Retirement Age means age sixty (60).
1.45 Normal Retirement Date means the first day of the month coinciding
with or next following the date on which a Participant attains his
Normal Retirement Age.
1.46 One Year Break in Service means a Plan Year during which a terminated
Employee has not completed more than five hundred (500)
Hours of Service.
For Plan Years commencing on or after January 1, 1985,
and to the extent not already credited, Hours of Service
shall be credited solely for purposes of determining
whether a One Year Break in Service has occurred with
respect to an Employee who is absent from work regardless
of whether the Employee is paid for such absence:
1.46(a)By reason of the pregnancy of the Employee;
1.46(b)By reason of the birth of a child of the Employee;
1.46(c)By reason of the placement of a child with the
Employee in connection with the adoption of such
child by such Employee; or
1.46(d)For purposes of caring for such child for a period
beginning immediately following such birth or
placement.
Hours of Service to be credited for such purpose shall be
(i) the Hours of Service which otherwise normally would
have been credited to such Employee but for such
absence, or
(ii)in any case in which the Plan Administrator is
unable to determine the hours in (i), eight (8)
Hours of Service per normal workday of absence.
The total number of hours treated as Hours of Service by
reason of any such pregnancy, birth or placement shall not
exceed five hundred one (501) hours. The hours in items
(i) and (ii) shall be treated as Hours of Service hereunder
(iii)only in the Plan Year in which the absence from
work begins, if an Employee would be prevented
from incurring a One Year Break in Service in such
Plan Year solely because the period of absence is
treated as Hours of Service as provided in
Sections 1.46(a), 1.46(b), 1.46(c) or 1.46(d); or
(iv) in any other case, in the immediately following
Plan Year.
Further, the Plan Administrator may request that the
Employee furnish any information the Plan Administrator may
require to establish that the absence is for the reasons
hereinbefore provided and the number of days for which
there was such an absence. If such information is not
submitted in a timely manner, no Hours of Service shall be
credited for the absence.
1.47 Participant means any Employee who becomes a
Participant as provided in Article II.
1.48 Pension Rollover Account means the portion of the Individual Account
established on behalf of an employee who was a participant
in a Prior Pension Plan to hold the amount he elected to
rollover into this Plan as a result of the termination of
such Prior Pension Plans, effective as of July 31, 1983, in
accordance with the provisions of such plans and the
proportionate share of the Adjustment attributable to the
Pension Rollover Account. A Pension Rollover Account was
established for a participant covered under the provisions
of said plans who elected to rollover such amounts to this
Plan and became a part of the Fund held pursuant to the
provisions of this Plan. For purposes of this Plan, a
Participant's Pension Rollover Account shall not include
any voluntary contributions made to the applicable Prior
Pension Plan. Any voluntary contribution in any such plan
and any interest thereon if transferred to this Plan shall
be maintained in the Employee's Voluntary Employee
Contribution Account. All amounts held in a Participant's
Pension Rollover Account shall at all times be one hundred
percent (100%) vested.
1.49 Plan means the Hilb, Rogal and Hamilton Company
Profit Sharing Savings Plan, as contained herein or as
amended.
1.50 Plan Administrator means the individual or individuals appointed
by the Corporation to carry out the day to day
administration of the Plan as provided in Article VIII. If
a Plan Administrator has not been appointed, or resigns
from a prior appointment, the Corporation shall be deemed
to be the Plan Administrator.
1.51 Plan Year means each twelve (12) month period beginning on
January 1 and ending on December 31.
1.52 Prior Pension Plan means the following plans:
(a)Rogal Company, Inc. Pension Plan and Trust
(b)Insurance Management Center, Inc. (formerly known as
LaBonne, Jones-Mulvihill, Inc.) Pension Trust
1.53 Prior Profit Sharing Plan means the following plans:
(a)Meuche, Hickman and Snow Agency, Inc. Employee Profit
Sharing Trust
(b)Leide Associates Profit Sharing Plan and Trust
(c)Baumhauer-Croom Insurance Employees' Profit Sharing
Retirement Plan and Trust Agreement
(d)The Jackson Agency Profit Sharing Plan
(e)Insurance Management Corporation of Charlottesville
Employees' Profit Sharing Plan and Trust
(f)Hamilton and Shackelford, Inc. Profit Sharing Plan and
Trust
(g)Mutual Insurers Incorporated Profit Sharing Trust
(h)Hilb, Rogal and Hamilton Profit Sharing Plan and Trust
(i)The Herndon, Iles and Scott, Inc. Split Funded Money
Purchase Pension Plan
1.54 Prior Profit Sharing Plan Account means the portion
of the Individual Account established on behalf of
an employee who was a participant in any of the Prior
Profit Sharing Plans to hold the amount attributable
to his account balance as of the last day of the
applicable plan year which began in 1982, in accordance
with the provisions of such plans and the proportionate
share of the Adjustment attributable to the Prior Profit
Sharing Plan Account. A Prior Profit
Sharing Plan Account was established for any participant
covered under the provisions of said plans and became a
part of the Fund held pursuant to the provisions of this
Plan. For purposes of this Plan, a Participant's Prior
Profit Sharing Plan Account shall not include any voluntary
contributions made to such plans. Any voluntary
contribution in such plan and any interest thereon if
transferred to this Plan shall be maintained in the
Employee's Voluntary Employee Contribution Account. All
amounts held in the Prior Profit Sharing Plan Account shall
at all times be one hundred percent (100%) vested.
1.55 Restricted Rollover Account means the portion of the Individual
Account established to hold the amounts he elects to
rollover into this Plan that are subject to the
restrictions of IRC Section 401(k) and the proportionate
share of the Adjustment of the Fund attributable to the
Restricted Rollover Account. A Restricted Rollover Account
shall be established for an Employee who elects to make a
Rollover Contribution to this Plan which is subject to the
restrictions of IRC Section 401(k) and shall become a part
of the Fund held pursuant to the provisions of this Plan.
All amounts held in a Participant's Restricted Rollover
Account shall at all times be one hundred percent (100%)
vested.
1.56 Rollover Contributions means Rollover Contributions made to the Fund
pursuant to Section 3.15.
1.57 Salary Reduction Contribution Account means that portion
of a Participant's Individual Account attributable to
the Salary Reduction Contribution previously allocated
to such Participant pursuant to Section 3.10 and the Participant's
proportionate share of the Adjustment attributable to the
Salary Reduction Account.
1.58 Salary Reduction Contributions means Contributions previously
made to the Plan by an Employer pursuant to Section 3.09.
1.59 Total and Permanent Disability or Totally and Permanently
Disabled means the incapacity of a Participant
by reason of bodily injury or physical or mental disease
which prevents the Participant from performing his
customary or other duties with the Employer and will
continue to prevent the Participant from performing his
customary or other duties for the remainder of his
lifetime. Total and Permanent Disability shall be
determined by the Plan Administrator in accordance with
uniform principles consistently applied based on evidence
that the Participant is eligible for disability benefits
under the long term disability plan sponsored by the
Employer but administered by an independent third party.
1.60 Trust Agreement means the agreement
entered into between the Corporation and the Trustee under
Article VII.
1.61 Trustee means such individual, individuals or
financial institution, or a combination of them as shall be
designated in the Trust Agreement to hold in trust any
assets of the Plan for the purpose of providing benefits
under the Plan and shall include any successor trustee to
the trustee initially designated thereunder.
1.62 Valuation Date means June 30 and December 31 of each Plan Year,
as of which dates the Fund shall be valued at fair market value.
The Plan Administrator may, from time to time, value the Fund
as of any other date it deems desirable.
1.63 Voluntary Employee Contribution Account means that portion of a
Participant's Individual Account attributable to his own
after-tax Voluntary Employee Contributions previously made
to the Plan pursuant to Section 3.07, any voluntary
contributions previously made to any Prior Profit Sharing
Plan or Prior Pension Plan and any interest thereon which
was transferred to this Plan, and the Participant's
proportionate share of the Adjustment attributable to his
Voluntary Employee Contribution Account.
1.64 Voluntary Employee Contributions means voluntary after-tax
Contributions previously made to the Fund by an Employee
pursuant to Section 3.07.
1.65 Year of Service.65Year of Service means for any Employee a
stated twelve (12) consecutive month period during which
the Employee completed one thousand (1,000) or more Hours
of Service for the Employer.
If an Employee is simultaneously in the employ of more
than one Employer or is transferred from the employment of
one Employer to the employment of another Employer, the
number of Hours of Service completed during any twelve (12)
month period shall be the sum of the number of Hours of
Service completed for all Employers during such year.
For purposes of determining eligibility in Article II:
1.65(a)Periods of employment with an Affiliate which would
have constituted a Year of Service had the Employee
been employed by the Employer shall be included as
if such periods had been performed for the
Employer; and
1.65(b)Periods of employment with the Employer other than
as an Employee which would have constituted a Year
of Service had the Employee been employed as an
Employee shall be included as if such periods had
been performed as an Employee.
Notwithstanding anything contained herein to the
contrary, effective for periods commencing on and after
January 1, 1988, employees of employers being purchased by
the Corporation, whether through a merger into and existing
Employer or acquisition as a separate employer, shall
receive credit for purposes of the eligibility requirement
in Section 2.01 for Hours of Service completed with such
employer prior to its acquisition by the Corporation.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.01 Eligibility - Each person who was a
Participant on December 31, 1988, shall continue as a
Participant after such date, subject to the provisions
hereinafter contained.
Each Employee who was not a Participant on December 31,
1988, and each person who becomes an Employee after such
date and who is not already a Participant shall
automatically become a Participant on the January 1 or July
1 coinciding with or next following the latest of (a)
January 1, 1989, (b) the Effective Date, (c) the attainment
of age twenty-one (21), and (d) the completion of a Year of
Service subsequent to the date on which he completed his
first Hour of Service.
Upon the completion of the first twelve (12) month
period noted in (d) above, the twelve (12) month period for
determining the Year of Service shall be based on Plan
Years starting with the Plan Year in which occurs the first
anniversary of the date on which he completes the
applicable first Hour of Service.
2.02 Special Eligibility Provision for Acquisitions - Notwithstanding
anything contained herein to the contrary, in 1989 the
Corporation acquired The Frankel Company and William K.
Lieberman & Co., Inc., (either by merger into an existing
Employer or acquisition as a separate employer) both of
which maintained qualified plans. Employees who were
participants in the qualified plan maintained by The
Frankel Company and William K. Lieberman & Co. were
automatically eligible to participate in this Plan as
follows:
The Frankel Company August 1, 1989
William K. Lieberman & Co., Inc. September 1, 1989
Employees who were not participants of the qualified
plans maintained by The Frankel Company and William K.
Lieberman on the above dates became eligible to participate
in this Plan in accordance with the provisions of Section
2.01.
In 1990, the Corporation acquired Employee Benefits
Services, Inc., W. L. Dinn & Company, Inc. and C. P. Brown
& Associates, Inc., (either by merger into an existing
Employer or acquisition as a separate employer) all of
which maintained qualified 401(k) plans. Employees who
were participants of the qualified 401(k) plans maintained
by Employee Benefit Services, Inc., W. L. Dinn & Company,
Inc. and C. P. Brown & Associates, Inc.. automatically
became eligible to participate in this Plan as follows:
Employee Benefit Services, Inc. October 1, 1990
W. L. Dinn & Company, Inc. October 1, 1990
C. P. Brown & Associates, Inc. January 1, 1991
Commencing on and after January 1, 1991, employees of
companies acquired by the Corporation who whether by merger
into an existing Employer or acquisition as a separate
employer are participants of a qualified plan maintained by
the acquired company shall become eligible to participate
in the Plan as soon as reasonably possible following the
acquisition. Any such company and the date of
participation in this Plan is indicated in Exhibit A.
Employees of acquired companies who were not participants
of a qualified plan maintained by the acquired company
shall be eligible to participate in this Plan in accordance
with Section 2.01.
2.03 Eligibility on Reemployment - If an Employee ceases to be
a Participant due to his termination of employment and is later
reemployed, he shall once again become a Participant upon
his reemployment date.
2.04 Participation - Each Employee shall automatically become a
Participant beginning with the date he first becomes eligible.
Such Participant may then elect, on forms provided by the Plan
Administrator, to contribute to the Plan in accordance with
Article III. If a Participant does not agree to a salary reduction
under the provisions of Section 3.01 when initially eligible, he
may so elect effective with the January 1 or July 1
coinciding with or next following the execution of a salary
reduction agreement under Section 3.01(a). Each person who
becomes a Participant shall remain a Participant so long as
he remains an Employee, or is entitled to future benefits
under the terms of the Plan.
ARTICLE III
CONTRIBUTIONS AND ALLOCATIONSAND ALLOCATIONS
3.01 Elective Contributions - A Participant may elect to have Elective
Contributions made to the Plan on his behalf as follows:
3.01(a)A Participant shall make such an election by
entering into a salary reduction agreement with his
Employer in which it is agreed that the
Participant's Employer will reduce the
Participant's Compensation during each pay period
by a designated percentage and contribute the
amount so determined, expressed as a percentage of
Compensation, to the Plan on behalf of the
Participant. The designated percentage may be any
whole percentage between one percent (1%) and
twelve percent (12%) of the Compensation otherwise
payable to the Participant during the pay period.
Such election shall be initially effective on the
first regular payroll period falling on or after
July 1, 1987, and thereafter, the payroll period
falling on or after the January 1 or July 1
subsequent to the acceptance of such salary
reduction agreement by the Employer.
Notwithstanding the preceding, in the case of
acquisitions as provided in Section 2.02,
Participants shall be eligible to make salary
reduction elections as provided in this Section
3.01 on the first regular payroll period falling on
and after the date indicated in Section 2.02 and
thereafter, the payroll period falling on or after
the January 1 or July 1 subsequent to the
acceptance of such salary reduction agreement.
In the absence of any election to enter into a
salary reduction agreement by the Participant, an
eligible Employee shall nevertheless be considered
a Participant hereunder for purposes of Section
4.01.
3.01(b)A Participant, by written notice filed with the
Plan Administrator at least thirty (30) days in
advance of the effective date of such notice (or
upon such shorter notice as may be acceptable to
the Plan Administrator), may elect to prospectively
revoke a salary reduction agreement. Any such
election shall become effective on the first
payroll period falling on or after such thirty (30)
day notice period and shall not have any
retroactive effect. If Elective Contributions are
suspended hereunder, a Participant may again sign a
salary reduction agreement effective on the payroll
period falling on or after the January 1 or July 1
following the prior revocation. Any such election
shall be made on forms provided by the Plan
Administrator.
3.01(c)A Participant, by written notice filed with the
Plan Administrator at least thirty (30) days in
advance of the effective date of such notice (or
upon such shorter notice as may be acceptable to
the Plan Administrator), may elect to prospectively
revoke a prior election and make a new election to
reduce the amount of the Elective Contributions
being made on his behalf. Any such election shall
become effective on the first payroll period
falling on or after such thirty (30) day notice
period and shall not have any retroactive effect.
If a Participant desires thereafter to increase the
amount of his Elective Contributions, he shall be
allowed to do so as of the payroll period falling
on or after any January 1 or July 1 following
thereafter by filing appropriate written notice to
the Plan Administrator. Any such election shall be
made on forms provided by the Plan Administrator.
3.01(d)A Participant may prospectively revoke any prior
election and make a new election by written notice
filed with the Plan Administrator at least thirty
(30) days (or upon such shorter notice as may be
acceptable to the Plan Administrator), prior to
each January 1 and July 1. Any such election shall
become effective on the payroll period falling on
or after the January 1 or July 1 following such
thirty (30) day notice period and shall not have
any retroactive effect. Any such election shall be
made on forms provided by the Plan Administrator.
3.01(e)The Employer shall pay to the Trustee and/or
Insurance Company such Participant's Elective
Contributions within a reasonable time following
the date such Elective Contributions were withheld
from the Participant's Compensation.
3.02 Allocation of Elective Contributions - A Participant's Elective
Contributions shall be credited to the Participant's
Elective Account and shall not be subject to withdrawal,
except as provided in Article VI.
3.03 Matching Contributions - As of each December 31 Valuation Date,
subsequent to July 1, 1987, each Employer shall make a
Matching Contribution to the Fund out of its current or
accumulated Net Earnings equal to twenty-five percent (25%)
of the first four percent (4%) of Elective Contributions
made to the Fund by eligible Participants. Notwithstanding
the preceding, the twenty-five percent (25%) match shall be
subject to increase at the discretion of the Board.
3.04 Allocation of Matching Contributions - The Matching Account
of each Participant who is in the employ of the Employer on the
last day of the Plan Year or who is not employed on the
last day of the Plan Year due to his retirement, death or
Total and Permanent Disability occurring during such Plan
Year shall be credited as of each December 31 Valuation
Date for which the Employer shall make a Matching
Contribution with his allocable share of the Matching
Contribution.
3.05 Employer Contributions - For the 1983 Plan Year and each Plan Year
thereafter, the Corporation shall contribute an amount
determined by the Board on behalf of each Employer;
provided, however, that a minimum Contribution of three
percent (3%) of Compensation paid to Participants shall be
made on behalf of each Employer. All Contributions made
hereunder must be made out of current or accumulated Net
Earnings of the Employer or, in the absence thereof, of the
Corporation.
Notwithstanding anything contained herein to the
contrary, in the event an Employer does not have sufficient
Net Earnings to make a Contribution hereunder, the
Contribution may be made by another Employer in accordance
with the following provisions.
3.05(a)The Employer for which the Contribution is made and
the Employer making the Contribution are members of
an affiliated group of corporations as defined in
IRC Section 1504 and both the Employer making the
Contribution and the Employer on whose behalf the
Contribution is being made participate in the Plan.
3.05(b)The Employer for which the Contribution is made is
required to make a Contribution to the Plan but is
prevented from making such Contribution because it
does not have current or accumulated Net Earnings
sufficient to make the required Contribution. To
the extent that such Employer has any current or
accumulated Net Earnings, it shall not be
considered to be prevented from making its required
Contribution to the Plan.
3.05(c)Any Contribution made on behalf of another Employer
must be made out of the current or accumulated Net
Earnings of the Employer making the Contribution.
3.05(d)The amount that is deductible under IRC Section
404(a)(3)(B) shall be determined by applying the
rules of IRC Section 404(a)(3)(A) and Internal
Revenue Service Regulations 1.404(a)-9 and 1.404(a)-
10(b).
3.05(e)The allowance of the deduction under IRC Section
404(a)(3)(B) shall be determined under Internal
Revenue Service Regulation 1.404(a)-10(c).
3.06 Allocation of Employer Contributions - The Plan Administrator,
as of the last day of each Plan Year for which the Employer shall
make an Employer Contribution pursuant to Section 3.05,
shall determine for each Participant his share of the
Employer Contribution.
Effective for periods commencing on and after January
1, 1990, the Employer Contribution shall be allocated as of
the December 31 Valuation Date only to Participants who (a)
received Compensation as a Participant from the Employer
during such Plan Year, (b) completed one thousand (1,000)
Hours of Service during the Plan Year and (c) are employed
on the last day of the Plan Year or who are not employed on
the last day of the Plan Year due to retirement, death or
Total and Permanent Disability occurring since the last
December 31 Valuation Date. The allocation shall be made
to the Employer Contribution Account of each eligible
Participant in the same proportion that his Compensation as
a Participant bears to the total Compensation of all
eligible Participants for the Plan Year.
For periods prior to January 1, 1990, the Employer
Contribution was allocated as of the December 31 Valuation
Date only to Participants who (a) received Compensation as
a Participant from the Employer during the Plan Year and
(b) completed one thousand (1,000) Hours of Service during
the Plan Year. The allocation was made to the Employer
Contribution Account of each eligible Participant in the
same proportion that his Compensation as a Participant bore
to the total Compensation of all eligible Participants for
the Plan Year.
3.07 Voluntary Employee Contributions - Prior to January 1, 1987, each
Participant was permitted, but was not required to,
contribute Voluntary Employee Contributions to the Fund in
each Plan Year through the Plan Year ending on December 31,
1986, during which he was a Participant. Voluntary
Employee Contributions were made in accordance with the
provisions of the Plan as in effect through December 31,
1986. Further, it was conclusively presumed that an
election to make Voluntary Employee Contributions meant
Voluntary Employee Contributions on a non-deductible basis
which were not subject to any restrictions imposed by IRC
Section 72(o) and 219.
A Participant's Voluntary Employee Contributions in any
Plan Year could be an amount which, together with all
Voluntary Employee Contributions made by such a Participant
in prior years, would cause his total contribution to equal
but not exceed ten percent (10%) of the aggregate
Compensation received since becoming a Participant.
For Plan Years commencing on and after January 1, 1987,
Voluntary Employee Contributions to the Plan are no longer
permitted.
3.08 Allocation of Voluntary Employee Contributions - A
Participant's Voluntary Employee Contributions previously
made to the Plan as provided in Section 3.07 were credited
to his Voluntary Employee Contribution Account.
3.09 Salary Reduction Contributions - Effective for Plan Years
commencing on and after January 1, 1985, Salary Reduction
Contributions as provided in this Section 3.06 were no
longer be permitted to be made to the Plan.
Any Participant who received a bonus during a Plan Year
could elect as of February 1 of each Plan Year to receive
the entire amount of such payment in cash or elect to have
the Employer contribute an amount as hereinafter determined
to the Plan. The amount which was permitted to be
contributed to the Plan was limited to five and seven-
tenths percent (5.7%) of the Participant's taxable income
in the tax year in which such amount would otherwise be
taxable to the Participant in excess of the "taxable wage
base". For purposes of this Section 3.09, "taxable wage
base" meant the maximum annual amount of earnings as in
effect on the last day of the applicable Plan Year which
may be considered wages under IRC Section 3121(a)(1). Any
amount contributed by the Employer to the Plan under this
Section 3.09 must have been contributed to the Plan within
thirty (30) days. Salary Reduction Contributions under
this Section 3.09 were conditioned upon satisfying the
requirement of Internal Revenue Service Regulations
1.401(k)-1(b)(2)(i) as in effect on December 31, 1984. To
the extent Salary Reduction Contribution (and earnings
thereon) hereunder did not meet the requirements of IRC
Section 401(k) as in effect at such time, such Salary
Reduction Contributions were considered Voluntary Employee
Contributions and allocated to the Participant's Voluntary
Employee Contribution Account as of the December 31
Valuation Date.
3.10 Allocation of Salary Reduction Contributions - Salary
Reduction Contributions previously made to the Plan as
provided in Section 3.09 were credited to the Participant's
Salary Reduction Contribution Account and shall not be
subject to withdrawal except as provided in Article VI.
3.11 Pension Rollover Contributions - A Participant who was a
participant of a Prior Pension Plan was permitted
to transfer to the Fund assets initially distributed
as a qualifying total distribution [determined pursuant to IRC Section
402(a)(5)(E)] within sixty (60) days of the date the assets
were distributed to the Participant or was permitted to
direct the trustee of the Prior Pension Plan to transfer to
this Plan on the Participant's behalf, any amount which
would otherwise have been distributed to the Participant as
a qualifying total distribution. The transfer of such
assets was not permitted to include any assets attributable
to contributions made on his behalf under a qualified
retirement plan while he was an employee within the meaning
of IRC Section 401(c)(1). The Plan Administrator
determined the rules under which the distribution would be
accepted and the procedures to be followed. Any subsequent
distribution of a Participant's Pension Rollover
Contribution shall be subject to the terms of Article V.
3.12 Allocation of Pension Rollover Contributions - Pension
Rollover Contributions as provided in Section 3.11 were
credited at fair market value to the Participant's Pension
Rollover Account as of the date made and are fully vested
at all times. The Participant's Pension Rollover Account
shares in the Adjustment of the Fund in accordance with
Section 3.17.
3.13 Deductible Contributions - Effective as of January 1, 1987, no
Deductible Contributions attributable to periods commencing
on or after January 1, 1987, as otherwise provided in this
Section 3.13 have been permitted or accepted by the Plan.
Deductible Contributions which were attributable to
calendar year 1986 were accepted through April 15, 1987.
Deductible Contributions were made to the Plan on a
voluntary basis in accordance with the provisions of the
Plan as in effect through December 31, 1986. All
Deductible Contributions were intended to satisfy the
requirements of IRC Sections 72(o) and 219 as in effect
through December 31, 1986 and were not permitted to exceed
the lesser of one hundred percent (100%) of the
Participant's Compensation for the Plan Year or two
thousand dollars ($2,000) in a Plan Year.
3.14 Allocation of Deductible Contributions - Deductible Contributions
previously made to the Plan as provided in Section 3.13
were allocated to a Participant's Deductible Account as of
the date made and are invested in the Contract.
3.15 Rollover Contributions - An Employee may transfer to the Fund
assets initially distributed as a qualifying total
distribution [determined pursuant to IRC Section
402(a)(5)(E)] within sixty (60) days of the date the assets
were distributed to the Employee. Nothing in this Section
shall be construed as requiring the transfer of the entire
qualifying total distribution and to that end an amount
less than the entire qualifying total distribution may be
accepted as a Rollover Contribution. The transfer of such
assets shall not include (a) any assets attributable to
contributions made on his behalf under a qualified
retirement plan while he was an employee within the meaning
of IRC Section 401(c)(1), (b) any assets representing after-
tax employee contributions, or (c) any assets which would
cause this Plan to become a transferee plan pursuant to IRC
Section 401(a)(11)(B)(iii)(III). The Plan may accept
rollover funds transferred from a rollover individual
retirement account. Further, it is specifically provided
that the Trustee of this Plan may receive a transfer of a
Participant's entire interest in any other qualified
retirement plan from the trustee of such plan provided such
amount would have otherwise qualified as a qualifying total
distribution and that such transfer would not cause this
Plan to be a transferee plan as defined in IRC Section
401(a)(11)(b)(iii)(III). The Plan Administrator shall
determine the rules under which the distribution shall be
accepted and the procedures to be followed. Any subsequent
distribution of a Rollover Contribution shall be subject to
the terms of Article V. If there is a transfer of assets
or amounts which are restricted by IRC Section 401(k) from
another qualified plan, then such assets shall remain
subject to such restrictions as if the transfer had not
occurred.
3.16 Allocation of Rollover Contributions - Rollover Contributions shall be
credited a fair market value to the Participant's Non-
Restricted Rollover Account or Restricted Rollover Account,
whichever shall be applicable, as of the date made.
Rollover Contributions share in the Adjustment of the Fund
in accordance with Section 3.17.
3.17 Allocation of Adjustment - Except as otherwise specifically provided in
this Section 3.17, the Plan Administrator shall determine
the Adjustment of the Fund for the period elapsed since the
last preceding Valuation Date by adding together all income
received and accrued, realized and unrealized gains, and
deducting therefrom all taxes, charges or expenses (unless
paid for separately by the Corporation at its discretion,
outside the confines of this Plan) and any realized or
realized losses which may have been sustained. The
Adjustment shall be allocated as of the Valuation Date as
hereinafter provided to Individual Accounts in which a
credit balance is maintained as of the Valuation Date.
The Adjustment of the Matching Accounts, Employer
Contribution Accounts, Salary Reduction Contribution
Accounts, Prior Profit Sharing Plan Accounts, Pension
Rollover Accounts, Non-Restricted Rollover Accounts and
Restricted Rollover Accounts of Participants shall be
prorated and credited or debited, as the case may be, to
the Matching Account, Employer Contribution Account, Salary
Reduction Contribution Account, Prior Profit Sharing Plan
Account, Pension Rollover Account, Non-Restricted Rollover
Account and Restricted Rollover Account of all such
Participants as of the Valuation Date, prior to the
allocation of Employer Contributions and Matching
Contributions as provided in Section 3.06 and 3.04 and
Forfeitures as provided in Section 3.18, on the basis of
the ratio of (a) the Matching Account, Employer
Contribution Account, Salary Reduction Contribution
Account, Prior Profit Sharing Plan Account, Pension
Rollover Account, Non-Restricted Rollover Account and
Restricted Rollover Account balances as of the preceding
Valuation Date minus any distributions or Forfeitures from
the Matching Account, Employer Contribution Account, Salary
Reduction Contribution Account, Prior Profit Sharing Plan
Account, Pension Rollover Account, Non-Restricted Rollover
Account and Restricted Rollover Account occurring since the
preceding Valuation Date plus the Salary Reduction
Contribution, if any, made subsequent to such Valuation
Date to (b) the total of all Matching Account, Employer
Contribution Account, Salary Reduction Contribution
Account, Prior Profit Sharing Plan Account, Pension
Rollover Account, Non-Restricted Rollover Account and
Restricted Account balances as determined in accordance
with (a) above for the same period. Rollover Contributions
in the initial year made to a Participant's Non-Restricted
Rollover Account or Restricted Rollover Account shall be
initially held in a separate protected investment fund held
by the trustee until the December 31 Valuation Date
coinciding with or next following receipt by the Trustee at
which time such Rollover Contribution plus the earnings
from the date of receipt of such Rollover Contribution
shall be transferred to the Investment Fund as elected by
the Employee in accordance with Article VII. Thereafter,
the Non-Restricted Rollover Account and Restricted Rollover
Account shall share in the Adjustment of the Fund in
accordance with the provisions of this Section 3.17.
Notwithstanding anything contained herein to the
contrary, the allocation of the Adjustment of the Fund
related to amounts attributable to the Prior Profit Sharing
Accounts or Pension Rollover Accounts in the initial year
that they became a part of the Fund received an Adjustment
of the Fund on a pro-rata basis based on the actual period
of time that such amounts were in the Fund for the Plan
Year.
The Adjustment of the Elective Account shall be
prorated and credited or debited, as the case may be, to
the Elective Accounts of all Participants on the Valuation
Date on the basis of the ratio of (a) the Participant's
Elective Account balance as of the preceding Valuation Date
minus any distributions or withdrawals attributable to the
Elective Account occurring since the preceding Valuation
Date plus the one-half (1/2) of Elective Contributions made
on behalf of the Participant, if any, subsequent to such
Valuation Date to (b) the total of all Elective Account
balances as determined in accordance with (a) above for the
same period.
The allocation of the Adjustment of a Participant's
Individual Account attributable to his Voluntary Employee
Contribution Account and to his Deductible Account shall be
made by the Insurance Company in accordance with the
provisions of the Contract. In the event that more than
one (1) Contract is in effect under the Plan, the
allocation of the Adjustment shall be determined by
aggregating all such Contracts and determining an average
or blended rate of return for such Contracts with the
allocation of the Adjustment determined on an equitable
basis from such average or blended rate.
3.18 Allocation of Forfeitures - The Plan Administrator shall determine the
amount of Forfeitures applicable for each Employer as of
the last day of each Plan Year by adding together all
amounts relinquished through terminations of employment
during the Plan Year. Each Employer's Forfeitures shall be
allocated, as of the December 31 Valuation Date in the
manner hereinafter provided.
3.18(a)For periods commencing on and after January 1,
1990, Forfeitures arising from the Employer
Contribution Accounts shall be allocated to the
Employer Contribution Accounts of all Participants
who (i) received Compensation as a Participant
during such Plan Year, (ii) completed one thousand
(1,000) Hours of Service during the Plan Year and
(iii) are employed on the last day of the Plan Year
or who are not employed on the last day of the Plan
Year due to retirement, death or Total and
Permanent Disability occurring since the preceding
December 31 Valuation Date. The allocation shall
be made in the same proportion that the
Participant's Compensation with respect to the Plan
Year bears to the total Compensation of all such
Participants for the Plan Year.
For periods prior to January 1, 1990, Forfeitures
arising from the Employer Contribution Accounts
were allocated to the Employer Contribution
Accounts of all Participants who (i) received
Compensation from the Employer as a Participant
during such Plan Year, and (ii) completed one
thousand (1,000) Hours of Service during the Plan
Year. The allocation was made in the same
proportion that the Participant's Compensation with
respect to the Plan Year bore to the total
Compensation of all such Participants for the Plan
Year.
3.18(b)Forfeitures arising from the Matching Accounts
shall be allocated to the Matching Accounts of all
Participants (a) who are eligible to receive a
Matching Contribution and (b) who are employed on
the last day of the Plan Year or who are not
employed on the last day of the Plan Year due to
retirement, death or Total and Permanent Disability
occurring since the preceding December 31 Valuation
Date.
The allocation shall be made in the same manner as
the Employer's Matching Contribution as provided in
Section 3.04.
3.19 Equitable Allocations - The Plan Administrator shall establish
accounting procedures for the purpose of making
allocations, valuations and adjustments to Individual
Accounts and Deductible Accounts. Should the Plan
Administrator determine that the strict application of its
accounting procedures will not result in an equitable and
nondiscriminatory allocation among the Individual Accounts
and Deductible Accounts, or other circumstances arise which
are not covered hereunder, it may modify its procedures for
the purpose of achieving an equitable and nondiscriminatory
allocation in accordance with the general concepts of the
Plan and the provisions of this Article.
Further, notwithstanding anything contained herein to
the contrary, in order to administer the Plan in an
equitable and nondiscriminatory manner, the Plan
Administrator may choose an alternate date to value
Individual Accounts and Deductible Accounts for all
purposes including distributions from the Plan, transfers
among Funds within the Plan and any other transactions
needing a specific Valuation Date, provided such alternate
Valuation Date is within sixty (60) days after the date the
Plan would otherwise value Individual Accounts and
Deductible Accounts.
3.20 Interim Valuation of Fund - Effective for periods through
December 31, 1989, an interim valuation of the income of
the Fund could be made as of the end of each calendar
quarter for which the Employer had not authorized a Valuation
Date. The Individual Accounts and Deductible Accounts of
Participant's who died or became Totally and Permanently
Disabled since the last Valuation Date were adjusted
according to the income factor in effect at the date of
their termination. The factor was determined based on the
actual return of the Fund during such period and assuming
all Contributions and withdrawals were made mid-period.
ARTICLE IV
LIMITATIONS ON CONTRIBUTIONS, MAXIMUM
BENEFITS, REQUIRED DISTRIBUTION OF BENEFITS AND
RESTRICTIONS ON DISTRIBUTIONS OF ELECTIVE CONTRIBUTIONS
4.01 Testing of Elective Contributions - Notwithstanding anything contained
herein to the contrary, in each Plan Year commencing on or
after January 1, 1987, in which Elective Contributions not
in excess of the maximum Annual Additions set forth in IRC
Section 415 are made to the Plan, such Elective
Contributions shall be subject to the following tests. For
purposes of these tests, all Elective Contributions made
under any plans that are aggregated for purposes of IRC
Sections 401(a)(4) or 410(b) [without regard to IRC Section
410(b)(2)(A)(ii)] shall be treated as made under a single
plan of the Employer, and such aggregated plans must
satisfy IRC Section 401(k) as though they were a single
plan. Effective for Plan Years commencing on and after
January 1, 1990, plans may be aggregated only if they have
the same plan year. Further, all Elective Contributions
made under the Plan for a Plan Year must relate to
Compensation either (a) which would have been received by
the eligible Employee within the Plan Year and which would
have been received by the eligible Employee except for the
salary reduction agreement within two and one-half (2 1/1)
months after the end of the Plan Year. Elective
Contributions must be allocated to the Employee's
Individual Account as of a date which falls within the Plan
Year, and the allocation may not be made contingent upon
participation or performance of service after the
allocation date. Elective Contributions must be paid to
the Trustee no later than twelve (12) months after the end
of the Plan Year.
Elective Contributions under this Plan and salary
reduction contributions under all other cash or deferred
arrangements of the Employer or Affiliate with plan years
ending with or within the same calendar year made on behalf
of Highly Compensated Employees shall be combined for
purposes of these tests. These tests shall apply to the
Elective Contributions made for the Plan Year as determined
as of the end of the Plan Year.
The Plan Administrator shall establish rules and
procedures for modifying the election with respect to the
Highly Compensated Employees to ensure, to the extent
possible, that either of the tests will be met.
4.01(a)Upon the application of the tests prior to the end
of the Plan Year if neither test is met, the Plan
Administrator may adjust the Highly Compensated
Employee's election to the extent necessary to meet
either test. The adjustment of Elective
Contributions shall be done in a uniform and
nondiscriminatory manner.
4.01(b)Upon the application of the tests at the end of the
Plan Year if neither test is met, the Plan
Administrator shall adjust the Elective
Contributions of the Highly Compensated Employees
to the extent necessary to meet one of the tests.
The adjustment of Elective Contributions shall be
done in descending order by reducing the highest
deferral percentage for all Highly Compensated
Employees similarly situated to the next lowest
percentage, and if additional reduction is
necessary, to again reduce the highest deferral
percentage for all Highly Compensated Employees
similarly situated to the next lowest percentage.
The amount of the adjustment of Elective
Contributions, inclusive of earnings or losses,
necessary to meet either test shall be returned to
the Highly Compensated Employee within twelve (12)
months after the end of the Plan Year. If amounts
are returned after two and one-half (2 1/2) months
after the close of the Plan Year, a ten percent
(10%) excise tax under IRC Section 4979 shall be
imposed on the Employer maintaining the Plan with
respect to such amounts. For purposes of
determining the earnings or losses on Elective
Contributions which will be returned to a Highly
Compensated Employee, such earnings or losses shall
include the Adjustment attributable to his Elective
Contributions for the Plan Year during which the
excess Elective Contributions were made.
The amount of excess Elective Contributions that
may be distributed shall be reduced by the amount
of any excess Elective Contributions previously
distributed in the Participant's taxable year
ending with or within the applicable Plan Year.
It is specifically provided hereunder that any
Matching Contributions shall be conditioned upon
permissible Elective Contributions. Elective
Contributions shall only be permissible to the
extent they meet the nondiscrimination tests
provided herein. If the nondiscrimination tests
require the return of excess Elective
Contributions, the corresponding Matching
Contributions shall not be made to the Plan. If
Matching Contributions have already been made to
the Plan prior to the time the following tests are
performed, then such Matching Contributions,
inclusive of earnings or losses, shall be forfeited
and used to reduce Contributions by the Employer.
For purposes of determining the earnings or losses
of Matching Contributions which will be forfeited
and used to reduce Contributions by the Employer,
such earnings or losses shall include the
Adjustment attributable to such Matching
Contributions for the Plan Year in which they were
made.
4.01(c)The determination of which test shall be met shall
be based upon the test which requires the
adjustment of the smallest amount of Elective
Contributions.
4.01(d)As of the last day of each Plan Year or more
frequently as determined by the Plan Administrator,
all eligible Employees shall be separated into two
(2) groups -- the Highly Compensated Employee group
and the Non-Highly Compensated Employee group.
Only one (1) of the following two (2) tests
needs to be satisfied for there not to be an
adjustment to Elective Contributions as provided in
this Section.
Test I - The actual deferral percentage for the
eligible Highly Compensated Employee group is not
more than the actual deferral percentage of the Non-
Highly Compensated Employee group multiplied by
1.25.
Test II - The excess of the actual deferral
percentage for the eligible Highly Compensated
Employee group over the Non-Highly Compensated
Employee group is not more than two (2) percentage
points, and the actual deferral percentage for the
Highly Compensated Employee group is not more than
the actual deferral percentage of the Non-Highly
Compensated Employee group multiplied by 2.0.
For purposes of this Section, actual deferral
percentage means, with respect to the Highly
Compensated Employee group and Non-Highly
Compensated Employee group for a Plan Year the
average of the ratios, calculated separately for
each Participant in such group, of (i) the amount
of Elective Contributions (including excess
Elective Contributions returned to the Participant
and excluding Elective Contributions taken into
account in the actual contribution percentage test,
provided that the actual deferral percentage test
is satisfied both with and without the exclusion of
the Elective Contributions allocated to each
Participant to (ii) the Participant's
Nondiscrimination Compensation for the Plan Year.
For any Plan Year in which an eligible Highly
Compensated Employee is considered a Five Percent
(5%) Owner or is one (1) of the ten (10) Highly
Compensated Employees paid the greatest Maximum
Compensation during the current or preceding Plan
Year, the actual deferral percentage must be
determined in aggregation with eligible "Family
Member" Employees. A Family Member of a Highly
Compensated Employee is the Employee's spouse,
lineal ascendants or descendants, and the spouses
of such lineal ascendants or descendants who in the
aggregate shall be referred to as a "Family Group".
For Plan Years beginning after December 31, 1988,
in calculating the combined percentage for the
Family Group, the Compensation of the Employee, the
Employee's spouse, and any lineal descendants under
the age of nineteen (19) shall be limited to two
hundred thousand dollars ($200,000), as adjusted by
the Secretary of the Treasury.
4.01(e)All rules of application with reference to Test I
and Test II shall be governed by IRC Section 401(k)
and any rules and regulations issued pursuant
thereto.
4.02 Testing of Matching Contributions - In each Plan Year commencing on or
after January 1, 1987, in which Matching Contributions are
made to the Plan, such Matching Contributions shall be
subject to the following tests. For purposes of this
Section 4.02, the term "Matching Contributions" shall
include any Forfeitures reallocated to Matching Accounts in
accordance with Section 3.18(b). For purposes of these
tests, all Matching Contributions made under this Plan and
all matching contributions made under any plans that are
aggregated for purposes of IRC Sections or 410(b), without
regard to IRC Section 410(b)(2)(A)(ii), shall be treated as
made under a single plan of the Employer, and such
aggregated plans must satisfy IRC Section 401(m) as though
they were a single plan. Effective for Plan Years
commencing on or after January 1, 1990, plans may be
aggregated only if they have the same plan year.
Matching Contributions under this Plan and matching
contributions under all other plans of the Employer or
Affiliate with plan years ending with or within the same
calendar year made on behalf of Highly Compensated
Employees shall be combined for purposes of these tests.
These tests shall apply to the Matching Contributions made
for the Plan Year as determined as of the end of the Plan
Year. The Employer, however, may apply these tests at any
other time during the Plan Year.
The Plan Administrator shall establish rules and
procedures for modifying the election with respect to the
Highly Compensated Employees to ensure, to the extent
possible, that either of the tests will be met.
4.02(a)Upon the application of the tests prior to the end
of the Plan Year if neither test is met, the Plan
Administrator may adjust the Highly Compensated
Employee's Matching Contributions to the extent
necessary to meet either test. The adjustment of
Matching Contributions shall be done in a uniform
and nondiscriminatory manner.
4.02(b)Upon the application of the tests at the end of the
Plan Year if neither test is met, then Matching
Contributions, not previously deemed forfeited
pursuant to Section 4.01, made on behalf of Highly
Compensated Employees shall be reduced. The
adjustment of Matching Contributions shall be done
in descending order by reducing the highest actual
contribution percentage for all Highly Compensated
Employees similarly situated to the next lowest
percentage, and if additional reduction is
necessary, to again reduce the highest actual
contribution percentage for all Highly Compensated
Employees similarly situated to the next lowest
percentage. This process shall be used until one
of the tests is met.
After the adjustment and to the extent that
excess Matching Contributions were not vested, then
the excess Matching Contributions shall be
forfeited and used to reduce Contributions by the
Employer. To the extent that excess Matching
Contributions would have been vested under Section
5.07, then the excess Matching Contributions,
inclusive of earnings or losses, shall be
distributed to the Highly Compensated Employee.
The amount of the adjustment of Matching
Contributions shall be distributed to the Highly
Compensated Employee within twelve (12) months
after the end of the Plan Year. If amounts are
distributed after two and one-half (2 1/2) months
after the close of the Plan Year, a ten percent
(10%) excise tax under IRC Section 4979 shall be
imposed on the Employer maintaining the Plan with
respect to such amounts.
For purposes of determining the earnings or losses
on Matching Contributions which will be distributed
to a Highly Compensated Employee or Matching
Contributions which will be forfeited and used to
reduce Contributions of the Employer, such earnings
or losses shall include the Adjustment attributable
to such Matching Contributions for the Plan Year
during which the excess Matching Contributions were
made.
4.02(c)The determination of which test shall be met shall
be based upon the test which requires the
adjustment of the smallest amount of Matching
Contributions.
4.02(d)As of the last day of each Plan Year or more
frequently as determined by the Plan Administrator,
all eligible Employees shall be separated into two
(2) groups -- the Highly Compensated Employee group
and the Non-Highly Compensated Employee group.
Only one (1) of the following two (2) tests
needs to be satisfied for there not to be an
adjustment as provided in this Section.
Test I - The actual contribution percentage for the
eligible Highly Compensated Employee group is not
more than the actual contribution percentage of the
Non-Highly Compensated Employee group multiplied by
1.25.
Test II - The excess of the actual contribution
percentage for the eligible Highly Compensated
Employee group over the Non-Highly Compensated
Employee group is not more than two (2) percentage
points, and the actual contribution percentage of
the Highly Compensated Employee group is not more
than the actual contribution percentage of the Non-
Highly Compensated Employee group multiplied by
2.0.
For purposes of this Section, actual contributions
percentage means, with respect to the Highly
Compensated Employee group and Non-Highly
Compensated Employee group for a Plan Year, the
average of the ratios, calculated separately for
each Participant in such group, of (i) the amount
of Matching Contributions and Forfeitures of
Matching Contributions reallocated to Participants
during the Plan Year (to the extent not taken into
account in the actual deferral percentage test) and
including at the election of the Employer Elective
Contributions, provided the actual deferral
percentage test is met before the Elective
Contributions are used in the actual contributions
percentage test and continues to be met following
the exclusion of the Elective Contributions that
are used to meet the actual contribution percentage
test, allocated to each Participant to (ii) the
Participant's Nondiscrimination Compensation for
the Plan Year.
For any Plan Year in which an eligible Highly
Compensated Employee is considered a Five Percent
(5%) Owner or is one (1) of the ten (10) Highly
Compensated Employees paid the greatest Maximum
Compensation during current or preceding Plan Year,
the actual contribution percentage must be
determined in aggregation with eligible "Family
Member" Employees. A Family Member of a Highly
Compensated Employee is the Employee's spouse,
lineal ascendants or descendants, and the spouses
of such lineal ascendants or descendants who in the
aggregate shall be referred to as a "Family Group".
For Plan Years beginning after December 31, 1988,
in calculating the combined percentage for the
Family Group, the Compensation of the Employee, the
Employee's spouse, and any lineal descendants under
the age of nineteen (19) shall be limited to two
hundred thousand dollars ($200,000), as adjusted by
the Secretary of the Treasury.
4.02(e)All rules of application with reference to Test I
and Test II shall be governed by IRC Section 401(m)
and any rules and regulations issued thereunder.
4.03 Multiple Use Limitation - Effective for Plan Years beginning after
December 31, 1988, if the Employer or an Affiliate sponsors
one (1) or more qualified plan(s) to which IRC Sections
401(k) and 401(m) apply, additional rules shall be
applicable to prevent the multiple use of the alternative
tests described in IRC Sections 401(k)(3)(A)(ii)(II) and
401(m)(2)(A)(ii) with respect to any Participant.
The multiple use of the alternative tests occurs if (i)
one or more Highly Compensated Employees are eligible to
participate in a plan subject to IRC Sections 401(k) and
401(m) and (ii) the sum of the actual deferral percentage
of the entire group of eligible Highly Compensated
Employees subject to IRC Section 401(k) and the actual
contribution percentage of the entire group of eligible
Highly Compensated Employees under the plan subject to IRC
Section 401(m) exceeds the "Aggregate Limit".
The Aggregate Limit is the sum of:
4.03(a)One hundred twenty-five percent (125%) of the
greater of (i) the actual deferral percentage of
the group of Non-Highly Compensated Employees
eligible under the plan subject to IRC Section
401(k) for the plan year, or (ii) the actual
contribution percentage of the group of Non-Highly
Compensated Employees eligible under the plan
subject to IRC Section 401(m) for the plan year
beginning with or within the plan year of the plan
subject to IRC Section 401(k).
4.03(b)Two (2) plus the lesser of Section 4.03(a)(i) or
4.03(a)(ii). However, in no event shall this
amount exceed two hundred percent (200%) of the
lesser of Section 4.03(a)(i) or 4.03(a)(ii).
Notwithstanding the preceding, the Aggregate Limit
shall be the sum of the following alternate Aggregate Limit
if such alternate Aggregate Limit is greater than the
Aggregate Limit set forth above.
The alternate Aggregate Limit is the sum of:
4.03(c)One hundred twenty-five percent (125%) of the
lesser of (i) the actual deferral percentage of the
group of Non-Highly Compensated Employees eligible
under the plan subject to IRC Section 401(k) for
the plan year, or (ii) the actual contribution
percentage of the group of Non-Highly Compensated
Employees eligible under the plan subject to IRC
Section 401(m) for the plan year beginning with or
within the plan year of the plan subject to IRC
Section 401(k).
4.03(d)Two (2) plus the greater of Section 4.03(c)(i) or
4.03(c)(ii). However, in no event shall this
amount exceed two hundred percent (200%) of the
greater of Section 4.03(c)(i) or 4.03(c)(ii).
If the Aggregate Limit is exceeded, the Employer may
elect to reduce the actual deferral ratios or the actual
contribution ratios either for all Highly Compensated
Employees under the plan(s) or only for those Highly
Compensated Employees who are eligible in both
arrangements.
4.04 Maximum Elective Contributions - Notwithstanding anything
contained herein to the contrary, Elective Contributions
contributed pursuant to this Plan during a calendar year shall not
exceed seven thousand dollars ($7,000) or such larger
amount as may be determined by the Secretary of Treasury
for any Participant in any calendar year.
If Elective Contributions are made to the Plan, or any
other plan maintained by an Affiliate, in excess of this
limit, the excess, inclusive of earnings or losses, shall
be returned to the Participant by April 15 of the calendar
year following the calendar year in which the Elective
Contributions were made. For purposes of this Plan, a
Participant shall be deemed to request such a distributions
under Section 1.402(g)-(1)(3) of the regulations under IRC
Section 401. Any such excess Elective Contributions shall
be distributed on a last in, first out method based on the
plan in which the excess Elective Contributions occurred.
Further, if the Participant notifies the Plan Administrator
by March 1 of the calendar year following the calendar year
in which Elective Contributions have been made that he has
contributed in excess of the seven thousand dollar ($7,000)
limit (as adjusted) to all plans to which the seven
thousand dollar ($7,000) limit (as adjusted) applies and
requests a return of such excess, the Plan Administrator
shall return the excess inclusive of earnings or losses by
April 15.
In the event of the return of the excess Elective
Contributions, the corresponding Matching Contributions
shall be forfeited and used to reduce Contributions by the
Employer. To this end, the vesting provisions of this Plan
applicable to Matching Contributions by the Employer are
conditioned on Elective Contributions being permissible
Elective Contributions. Elective Contributions in excess
of the seven thousand dollar ($7,000) all source limit (as
adjusted) provided for in IRC Section 402(g)(5) are
specifically prohibited hereunder and, as a result, the
Employer reserves the right for up to one (1) Plan Year
following the Plan Year in which Matching Contributions,
inclusive of earnings or losses, were made to recapture any
Matching Contributions mistakenly made to the Plan due to
the Employee exceeding the IRC Section 402(g) limit.
For purposes of determining the earnings on Elective
Contributions which will be returned to the Participant and
the corresponding earnings or losses on Matching
Contributions which will be forfeited and used to reduce
Contributions of the Employer, such earnings or losses
shall include the Adjustment attributable to such Elective
Contributions and Matching Contributions for the Plan Year
during which the excess Elective Contributions and Matching
Contributions were made.
4.04 Maximum Additions - Notwithstanding anything contained herein to the
contrary, the total Annual Additions made to the Individual
Account of a Participant for any Limitation Year commencing
on and after January 1, 1983, when combined with any
similar Annual Additions credited the Participant for the
same period from another qualified Defined Contribution
Plan maintained by the Employer or by an Affiliate, shall
not exceed the lesser of Sections 4.04(a) and 4.04(b)
following:
4.04(a)Thirty thousand dollars ($30,000) or, if greater,
twenty-five percent (25%) of the dollar limitation
in effect under IRC Section 415(b)(1)(A); and
4.04(b)Twenty-five percent (25%) of the Participant's
total non-deferred Maximum Compensation received
from the Employer for such Plan Year.
If a Participant is covered by one or more Defined
Contribution Plans maintained by the Employer or an
Affiliate, the maximum Annual Additions noted above shall
be decreased as determined necessary by the Employer, prior
to the reduction of such other Defined Contribution Plans,
to ensure that all such plans will remain qualified under
the IRC.
If as of any Valuation Date corrective adjustments in
the Annual Addition to any Individual Account are required
pursuant to this Section, Forfeitures shall be first
reduced by the amount required to ensure compliance with
this Section, and then in order, the Employer Contribution
Account, the Matching Account and then the Elective
Account.
If, (a) as result of the allocation of Forfeitures, (b)
a reasonable error is made in estimating a Participant's
annual Maximum Compensation, or (c) a reasonable error is
determining the amount of Elective Contribution within the
meaning of IRC Section 401(g)(3) that may be made with
respect to a Participant under the limitations of IRC
Section 415, or (d) under other facts and circumstances
which the Internal Revenue Service finds justify the
availability of these rules, any amount withheld or taken
from a Participant's Individual Account hereunder shall be
segregated in the Fund in a separate account and applied
toward the Contribution of the Employer for the next
Limitation Year.
Notwithstanding the above, any reduction of a
Participant's Elective Account shall be returned to the
Participant.
4.05 Multiple Plan Participation - If a Participant is a participant of a
Defined Benefit Plan maintained by the Employer or by an
Affiliate, the sum of his defined benefit plan fraction and
his defined contribution plan fraction for any Limitation
Year may not exceed 1.0.
For purposes of maximum Annual Additions to Defined
Contribution Plans and maximum annual benefits payable from
Defined Benefit Plans, all Defined Contribution Plans and
all Defined Benefit Plans, whether or not terminated, shall
be combined and treated as one (1) plan.
For purposes of this Section, the term "defined
contribution plan fraction" shall mean a fraction, the
numerator of which is the sum of all of the Annual
Additions to the Participant's Individual Account under
this Plan as of the close of the Limitation Year and the
denominator of which is the sum of the lesser of the
following amounts determined for such Limitation Year and
for each prior Limitation Year of employment with the
Employer:
4.05(a)the product of 1.25 multiplied by the dollar
limitation in effect in Section 4.04(a) for such
year determined without regard to IRC Section
415(c)(6); or
4.05(b)the product of 1.4 multiplied by an amount
determined pursuant to Section 4.04(b) with respect
to each individual under the Plan for such
Limitation Year.
For purposes of this Section, the term, "defined
benefit plan fraction" shall mean a fraction, the numerator
of which is the Participant's projected annual benefit (as
defined in the said defined benefit plans) determined as of
the close of the Limitation Year and the denominator of
which is the lesser of:
4.05(c)the product of 1.25 multiplied by the dollar
limitation in effect pursuant to IRC Section
415(b)(1)(A) for such Limitation Year; or
4.05(d)the product of 1.4 multiplied by the amount which
may be taken into account pursuant to IRC Section
415(b)(1)(B) with respect to each individual under
the Plan for such Limitation Year.
The limitation on aggregate benefits from a Defined
Benefit Plan and a Defined Contribution Plan which is
contained in IRC Section 415(e) shall be complied with by a
reduction (if necessary) in the Participant's benefits
under the Defined Benefit Plan(s), in accordance with the
provisions of the such plan(s), before a reduction of any
such Defined Contribution Plan.
4.06 Required Distribution of Benefits - If a portion of a Participant's
Individual Account and Deductible Account which shall be
due and payable under Article V, and the Participant has
not elected otherwise in accordance with the provisions of
the Plan, any payment of benefits or commencement thereof
to the Participant shall begin not later than sixty (60)
days after the close of the Plan Year in which occurs the
latest of:
4.06(a)the Participant's having attained his Normal
Retirement Age;
4.06(b)the tenth (10th) anniversary of the date the
Participant commenced participation in the Plan;
and
4.06(c)the termination of service of the Participant.
Notwithstanding anything contained herein to the
contrary, the interest of each Participant under the Plan
shall begin to be distributed no later than the April 1 of
the calendar year following the calendar year in which the
Participant attains age seventy and one-half (70 1/2) in
accordance with IRC Section 401(a)(9) and the regulations
issued thereunder, inclusive of the minimum distribution
incidental benefit requirements of Section 1.401(a)(9)-2 of
the regulations under IRC Section 401(a)(9). Distributions
shall not be required to commence for Employees who were
not Five Percent (5%) Owners at any time on or after the
calendar year in which they attained age sixty-six and one-
half (66 1/2) and who had attained age seventy and one-half
(70 1/2) prior to January 1, 1988. Life expectancy of the
Participant and the Participant's spouse (other than for a
life annuity) may be redetermined annually if the
Participant so elects.
4.07 Restrictions on Distribution of Elective Contributions - Amounts
attributable to Elective Contributions shall not be distributed
prior to the earliest of any of the following events:
4.07(a)The Participant's retirement, death, Total and
Permanent Disability, or termination of employment;
4.07(b)The termination of the Plan without establishment
or maintenance of a successor Defined Contribution
Plan (other than an employee stock ownership plan
as defined in IRC Section 4975(e)(7);
4.07(c)The date of the sale or disposition of
substantially all of the assets (sale of eighty-
five percent (85%) of the assets shall be deemed to
be substantially all) used by the Employer in its
trade or business to an unrelated corporation
provided the Participant continues employment with
the corporation acquiring such assets and the
Employer continues to maintain the Plan after such
disposition;
4.07(d)The date of sale or other disposition of the
Employer of its interest in a subsidiary to an
unrelated entity provided the Participant continues
employment with the unrelated entity and the
Employer continues to maintain the Plan after such
disposition;
4.07(e)the Participant's attainment of age fifty-nine and
one-half (59 1/2); or
4.07(f)the Participant's hardship.
All distributions shall be subject to the Participant
and spousal consent requirements, if applicable, under IRC
Sections 401(a)(11) and 417.
ARTICLE V
DISTRIBUTIONS
5.01 Normal Retirement - Effective for periods commencing on
and after January 1, 1990, upon the retirement of a
Participant at his Normal Retirement Date, the Current
Balance of his Individual Account and Deductible Account
shall become payable, and the Plan Administrator shall
direct the Trustee and Insurance Company to distribute
such amount to the Participant in accordance with Section 5.08.
The total amount, if any, credited to a Participant's
Individual Account subsequent to his Normal Retirement Date
shall become vested at the time it is credited to his
Individual Account and the Plan Administrator shall direct
the Trustee and Insurance Company to distribute such
additional amount to the Participant.
For periods prior to January 1, 1990, upon the
retirement of a Participant at his Normal Retirement Date,
the Current Balance of the Participant's Individual Account
and Deductible Account plus the total amount, if any,
credited to his Individual Account and Deductible Account
subsequent to his Normal Retirement Date became payable as
of the Valuation Date following his Normal Retirement Date
and the Plan Administrator directed the Trustee and
Insurance Company to distribute such amount to the
Participant in accordance with Section 5.08.
5.02 Delayed Retirement - Effective for periods commencing on and after
January 1, 1990, upon the retirement of a Participant on
his Delayed Retirement Date, the Current Balance of his
Individual Account and Deductible Account shall become
payable, and the Plan Administrator shall direct the
Trustee and Insurance Company to distribute such amount to
the Participant in accordance with Section 5.08.
The total amount, if any, credited to a Participant's
Individual Account subsequent to his Delayed Retirement
Date shall become vested at the time it is credited to his
Individual Account and the Plan Administrator shall direct
the Trustee and Insurance Company to distribute such amount
to the Participant.
For periods prior to January 1, 1990, upon the
retirement of a Participant at his Delayed Retirement Date,
the Current Balance of the Participant's Individual and
Deductible Account plus the total amount, if any, credited
to his Individual Account and Deductible Account subsequent
to his Delayed Retirement Date became payable as of the
Valuation Date following his Delayed Retirement Date and
the Plan Administrator directed the Trustee and Insurance
Company to distribute such amount to the Participant in
accordance with Section 5.08.
5.03 Early Retirement - Effective for periods commencing on
and after January 1, 1990, upon the retirement of a
Participant on his Early Retirement Date, the Current
Balance of his Individual Account and Deductible Account
shall continue to be held as a part of the Fund until
what would otherwise be the Participant's Normal
Retirement Date at which time the Plan
Administrator shall direct the Trustee and Insurance
Company to distribute the Current Balance then held in the
Participant's Individual Account and Deductible Account in
accordance with Section 5.08.
The total amount, if any, credited to a Participant's
Individual Account subsequent to his Early Retirement Date
shall become vested at the time it is credited to his
Individual Account and the Plan Administrator shall direct
the Trustee and Insurance Company to distribute such
additional amount to the Participant in accordance with the
provisions of this Section.
For periods prior to January 1, 1990, upon the
retirement of a Participant at his Early Retirement Date,
the Current Balance of his Individual Account and
Deductible Account plus the total amount, if any, credited
to his Individual Account and Deductible Account subsequent
to his Early Retirement Date shall continue to be held as a
part of the Fund until what would otherwise be the
Participant's Normal Retirement Date at which time the Plan
Administrator shall direct the Trustee and Insurance
Company to distribute the Current Balance then held in the
Participant's Individual Account and Deductible Account in
accordance with Section 5.08.
Notwithstanding anything contained herein to the
contrary, a Participant who retires at his Early Retirement
Date shall have the right, at any time prior to his Normal
Retirement Date, to elect to have the Current Balance then
held in his Individual Account and Deductible Account paid
at an earlier date, including the commencement of his
benefit as of his Early Retirement Date. If the
Participant makes such an election, the Plan Administrator
shall direct the Trustee and Insurance Company to
distribute the Current Balance of the Participant's
Individual Account and his Deductible Account as soon as
reasonably following such election in accordance with
Section 5.08.
Any amount held pursuant to this Section 5.03 shall
continue to share in the Adjustment of the Fund pursuant to
Section 3.17.
5.04 Disability Retirement - Effective for periods commencing on and after
January 1, 1990, upon the retirement of a Participant on
his Disability Retirement Date, the Current Balance of his
Individual Account and Deductible Account shall become
vested and shall continue to be held as a part of the Fund
until what would otherwise be the Participant's Normal
Retirement Date, at which time the Plan Administrator shall
direct the Trustee and Insurance Company to distribute the
Current Balance then held in the Participant's Individual
Account and Deductible Account to the Participant in
accordance with Section 5.08.
The total amount, if any, credited to a Participant's
Individual Account subsequent to his Disability Retirement
Date shall become vested at the time it is credited to his
Individual Account and the Plan Administrator shall direct
the Trustee and Insurance Company to distribute such
additional amount to the Participant in accordance with the
provisions of this Section.
For periods prior to January 1, 1990, upon the
retirement of a Participant at his Disability Retirement
Date, the Current Balance of the Participant's Individual
Account and Deductible Account plus the total amount, if
any, credited to the Participant's Individual Account and
Deductible Account subsequent to his Disability Retirement
Date became vested and continued to be held as a part of
the Fund until what would otherwise be the Participant's
Normal Retirement Date, at which time the Plan
Administrator shall direct the Trustee and Insurance
Company to distribute the Current Balance then held in the
Participant's Individual Account and Deductible Account in
accordance with Section 5.08.
For purposes of this Section 5.04 as it relates to the
distribution of a Participant's Deductible Account, the
term "disability" means an incapacity which leaves the
Participant unable to engage in any substantially gainful
activity by reason of any medically determinable physical
or mental impairment which can be expected to result in
death or to be of long-continued and indefinite duration.
Notwithstanding anything contained herein to the
contrary, a Participant who retires at his Disability
Retirement Date shall have the right, at any time prior to
his Normal Retirement Date, to elect to have the Current
Balance then held in his Individual Account and Deductible
Account paid at an earlier date including the commencement
of his benefit as of his Disability Retirement Date. If
the Participant makes such an election, the Plan
Administrator shall direct the Trustee and Insurance
Company to distribute the Current Balance then held in the
Participant's Individual Account and Deductible Account as
soon as reasonably possible following such election in
accordance with Section 5.08.
Any amount held on a Participant's behalf pursuant to
this Section shall continue to share in the Adjustment of
the Fund pursuant to Section 3.17.
5.05 Death Before Retirement or Termination of Employment - At the
death of (a) a Participant on or after attaining his Normal
Retirement Age but prior to the commencement of his benefit,
(b) an active Participant who has satisfied the requirements for
early retirement, (c) an active Participant, or (d) if a vested terminated
Participant or retired Participant dies prior to the commencement of his
benefit, a death benefit shall be payable as provided in this Section 5.05.
Effective for periods commencing on and after January
1, 1990, upon the death of a Participant before retirement
or termination of employment, the Current Balance of the
Participant's Individual Account and Deductible Account as
of the date of the Participant's death shall become vested.
The total amount, if any, credited to the Participant's
Individual Account subsequent to his death shall become
vested at the time it is credited to his Individual
Account.
Subject to the provisions under this Article 5.05, upon
the Participant's death, his Individual Account shall
continue to be held as a part of the Fund until the
Participant's Normal Retirement Date at which time the Plan
Administrator shall direct the Trustee or Insurance Company
to distribute the Current Balance of the Participant's
Individual Account to his Beneficiary in accordance with
Section 5.08.
Notwithstanding anything contained herein to the
contrary, a Participant's Beneficiary shall have the right
to elect, in writing, to have the Participant's Individual
Account paid at an earlier date. A Beneficiary may elect
to have the benefit paid as of the first day of the month
coinciding with or next following the Participant's death
or on the first day of any month thereafter. Upon such
election, the Plan Administrator shall direct the Trustee
to distribute the Current Balance of the Participant's
Individual Account as of the first day of the month
coinciding with or next following the election by the
Beneficiary to receive the benefit at any earlier date.
For periods prior to January 1, 1990, upon the death of
a Participant before his retirement or termination of
employment, the Beneficiary could elect to receive the
Current Balance of the Participant's Individual Account and
Deductible Account plus the total amount, if any, credited
to the Participant's Individual Account and Deductible
Account subsequent to his death became payable as of the
Valuation Date coinciding with or next following the date
of the Participant's death and the Plan Administrator
directed the Trustee and Insurance Company to distribute
such amount to the Participant's Beneficiary in a lump sum.
Notwithstanding anything contained herein to the contrary,
the Participant's Beneficiary could also elect an immediate
payout of the Current Balance of the Participant's
Individual Account and his Deductible Account. If the
Participant's Beneficiary made such an election, the total
amount, if any, credited to the Participant's Individual
Account and Deductible Account subsequent to the
Participant's death prior to his retirement or termination
of employment became payable at the time such amount was
credited to his Individual Account and Deductible Account
and the Plan Administrator directed the Trustee and
Insurance Company to distribute such additional amount to
the Participant's Beneficiary in a lump sum.
Any amount held in the Participant's Individual Account
subsequent to his death under this Section 5.05 shall
continue to share in the Adjustment of the Fund.
Payment of the death benefit under this Section 5.05
shall be subject to the following provisions.
5.05(a)If the designated Beneficiary is the spouse of the
Participant, the Beneficiary may elect to commence
the benefit within a reasonable period of time
after the Participant's death but in no event may
such election be made later than (i) the December
31 of the calendar year immediately following the
calendar year in which the Participant died, or
(ii) the December 31 of the calendar year in which
the Participant would have attained age seventy and
one-half (70 1/2). The benefit may be paid over
the life or over a period certain not extending
beyond the life expectancy of the designated
Beneficiary. If the spouse dies before the
distribution begins, then the five (5) year
distribution requirement of Section 5.05(c) shall
apply as if the Beneficiary were the Participant.
5.05(b)If the benefit is paid to a designated Beneficiary,
as defined in IRC Section 401(a)(9)(E) inclusive of
Section 1.401(a)(9)-1 D-1 and D-2 of the
regulations, other than the Participant's spouse,
the distributions shall commence no later than the
December 31 of the calendar year immediately
following the calendar year in which the
Participant died. The benefit may be paid over the
life or over a period certain not extending beyond
the life expectancy of the designated Beneficiary.
5.05(c)If there is no designated Beneficiary, as defined
in IRC Section 401(a)(9) inclusive of Section
1.401(a)(9)-1 D-1 and D-2 of the regulations, at
the death of the Participant, then distribution of
the Participant's entire interest shall be
completed by the December 31 of the calendar year
containing the fifth (5th) anniversary of the
Participant's death.
5.05(d)The benefit payable under this Section 5.05 after
the death of a Participant may not be paid in any
form which would violate the required distribution
requirements of Sections 5.06(a), 5.06(b) and
5.06(c).
5.06 Death After the Commencement of Benefits - Upon the death of a
retired or terminated Participant who is receiving benefit
payments under Section 5.08, the provision of Section 5.08
shall control concerning any payments upon the death of the
Participant. However, the Beneficiary may elect in writing
on forms provided by the Plan Administrator to have any
remaining benefits which are being paid in installment paid
in a lump sum. At the death of a Participant, the
remaining portion of his benefit must be distributed at
least as rapidly as under the method of distribution in
effect at the date of the Participant's death.
5.07 Termination of Employment - For periods commencing on and after
January 1, 1990, upon termination of employment for any
reason other than retirement, Total and Permanent
Disability or death, a Participant shall be entitled to a
benefit equal to the vested portion of the Current Balance
of his Individual Account and Deductible Account as of his
date of termination of employment.
For periods prior to January 1, 1990, upon termination
of employment for any reason other than retirement, Total
and Permanent Disability or death, a Participant was
entitled to a benefit equal to the vested portion
determined as of his date of termination of the Current
Balance of his Individual Account and Deductible Account as
of the Valuation Date coinciding with or next following his
termination of employment plus the total amount, if any,
credited to a Participant's Individual Account and
Deductible Account subsequent to his termination of
employment.
5.07(a)A Participant shall at all times be one hundred
percent (100%) vested in the Current Balance of his
Elective Account, Voluntary Employee Contribution
Account, Salary Reduction Contribution Account,
Deductible Account, Prior Profit Sharing Plan
Account, Pension Rollover Account, if applicable,
Non-Restricted Rollover Account and his Restricted
Rollover Account.
5.07(b)A Participant shall be one hundred percent (100%)
vested in the Current Balance of his Employer
Contribution Account and Matching Account upon his
attainment of age fifty-five (55) and completion of
ten (10) years of Credited Service. However, if a
Participant who was a participant in the Meuche,
Hickman and Snow Agency, Inc. Employees' Profit
Sharing Plan, he shall be one hundred percent
(100%) vested upon the attainment of age fifty-five
(55). Further, in all events a Participant shall
be one hundred percent (100%) vested in his
Employer Contribution Account and Matching Account
upon the attainment of his Normal Retirement Age.
5.07(c)If Section 5.07(b) is not applicable, a Participant
shall be vested in the Current Balance of his
Employer Contribution Account and Matching Account
in accordance with the following table:
Years of Credited Service Vested Percentage
Less than 2 years 0%
2 years but less than 3 years 20%
3 years but less than 4 years 40%
4 years but less than 5 years 60%
5 years but less than 6 years 80%
6 years or more 100%
Notwithstanding anything contained herein to the
contrary, if a Participant was a participant of a
Prior Profit Sharing Plan or a Prior Pension Plan
and the vesting schedule under the Prior Profit
Sharing Plan or Prior Pension Plan was more liberal
than the preceding vesting schedule, such
Participant shall continue to be covered under the
vesting schedule of the Prior Profit Sharing Plan
or Prior Pension Plan, whichever shall be
applicable.
Distribution due to a Participant's termination of
employment shall be made in accordance with the following
provisions of this Section 5.07.
5.07(d)If the vested portion of Current Balance of the
Participant's Individual Account and Deductible
Account does not exceed three thousand five hundred
dollars ($3,500) (including any previous
distributions made to the Participant), the Plan
Administrator shall direct the Trustee and
Insurance Company to distribute such amount to the
Participant in a lump sum. For periods commencing
on and after January 1, 1990, the lump sum amount
shall be equal to the vested portion of the Current
Balance of the Participant's Individual Account and
Deductible Account as of his date of termination of
employment and shall be payable as soon as
reasonably possible following his termination of
employment.
For periods prior to January 1, 1990, the lump sum
amount equalled the Current Balance of the
Participant's Individual Account and Deductible
Account plus the vested portion of the total
amount, if any, credited to his Individual Account
and Deductible Account subsequent to his
termination of employment and was payable as of the
Valuation Date following his termination of
employment.
5.07(e)If the vested portion of the Current Balance of the
Participant's Individual Account and Deductible
Account exceeds three thousand five hundred dollars
($3,500) (including any previous distributions made
to the Participant), the distribution of the
Current Balance of the Participant's Individual
Account and Deductible Account as hereinafter
provided may only be made with the Participant's
written consent. If the Current Balance of a
Participant's Individual Account and Deductible
Account at the time of any distribution exceeds
three thousand five hundred dollars ($3,500)
(including any previous distributions made to the
Participant), then the Current Balance of his
Individual Account and Deductible Account at any
time thereafter shall be deemed to exceed three
thousand five hundred dollars ($3,500) and the
Participant's consent shall be required prior to
any distribution being made to the Participant.
5.07(f)Subject to the consent requirement of Section
5.07(e), effective for periods commencing on and
after January 1, 1990, upon termination of
employment, the Current Balance of the
Participant's Elective Account, Voluntary Employee
Contribution Account, Salary Reduction Account, Non-
Restricted Rollover Account, Restricted Rollover
Account and Deductible Account shall become payable
and the Plan Administrator shall direct the Trustee
and Insurance Company to distribute such amount to
the Participant in accordance with the provisions
of Section 5.08. If the Participant does not
consent to the distribution as hereinbefore
provided to be made to him, the Current Balance of
his Elective Account, Voluntary Employee
Contribution Account, Salary Reduction Account, Non-
Restricted Rollover Account, Restricted Rollover
Account and Deductible Account shall continue to be
held until what would otherwise be the
Participant's Normal Retirement Date or, if
earlier, the first day of the month coinciding with
or next following the time the Participant requests
an earlier distribution. At such time, the Plan
Administrator shall direct the Trustee and
Insurance Company to distribute the Current Balance
then held in his Elective Account, Voluntary
Employee Contribution Account, Salary Reduction
Account, Non-Restricted Rollover Account,
Restricted Rollover Account and Deductible Account
to the Participant in accordance with Section 5.08.
For periods prior to January 1, 1990, the Current
Balance of the Participant's Elective Account,
Voluntary Employee Contribution Account, Salary
Reduction Account, Non-Restricted Rollover Account,
Restricted Rollover Account and Deductible Account
was payable as of the Valuation Date following his
termination of employment and the Plan
Administrator directed the Trustee and Insurance
Company to distribute such amount to the
Participant in accordance with the provisions of
Section 5.08. If the Participant did not consent
to the distribution as hereinbefore provided to be
made to him, the Current Balance of his Elective
Account, Voluntary Employee Contribution Account,
Salary Reduction Account, Non-Restricted Rollover
Account, Restricted Rollover Account and Deductible
Account continued to be held as part of the Fund
until the Valuation Date following his Normal
Retirement Date, or if earlier, the Valuation Date
coinciding with or next following the time the
Participant requested an earlier distribution. At
such time, the Plan Administrator directed the
Trustee and Insurance Company to distribute the
Current Balance then held in his Elective Account,
Voluntary Employee Contribution Account, Salary
Reduction Account, Non-Restricted Rollover Account,
Restricted Rollover Account and Deductible Account
to the Participant in accordance with Section 5.08.
Amounts being held in the Participant's Individual
Account and Deductible Account under the provisions
of this Section 5.07(h) shall continue to share in
the Adjustment of the Fund in accordance with
Section 3.17.
Notwithstanding anything contained in the previous
paragraph to the contrary, upon termination of
employment, a Participant may, at any time, direct
in writing that the Plan Administrator transfer the
Current Balance of his Deductible Account to a
successor depository. In such event, the Plan
Administrator shall notify the Insurance Company to
transfer the Current Balance of the Participant's
Deductible Account to the successor depository as
soon as reasonably possible following receipt of
the request from the Participant.
5.07(g)Subject to the consent requirement of Section
5.07(e), upon termination of employment, the
Participant may elect to take up to a maximum of
five thousand dollars ($5,000) of the Current
Balance of his Prior Profit Sharing Plan Account or
Pension Rollover Account and the vested portion of
his Employer Contribution Account and Matching
Account in a lump sum. Notwithstanding the
preceding, if the total Current Balance of the
Individual Account attributable to his Prior Profit
Sharing Plan Account or Pension Rollover Account
and the vested portion of the Current Balance of
his Employer Contribution Account and Matching
Account exceeds five thousand dollars ($5,000) but
does not exceed six thousand dollars ($6,000), the
Participant may elect that the total amount be paid
to him in a lump sum. For periods commencing on
and after January 1, 1994, the five thousand dollar
($5,000) limit hereinbefore provided shall be
increased to ten thousand dollars ($10,000). For
periods commencing on and after January 1, 1990,
the lump sum amount payable shall be determined as
the Current Balance of his Prior Profit Sharing
Plan Account or Pension Rollover Account and the
vested portion of the Current Balance of his
Employer Contribution Account and Matching Account.
For periods prior to January 1, 1990, the lump sum
amount payable equalled the Current Balance of his
Prior Profit Sharing Plan Account or Pension
Rollover Account and the vested portion of the
Current Balance of his Employer Contribution
Account and Matching Account plus the total amount,
if any, credited to his Employer Contribution
Account and Matching Account subsequent to his
termination of employment as of the Valuation Date
following his termination of employment.
If a Participant does not make an election to
receive such lump sum payment, his Prior Profit
Sharing Plan Account or Pension Rollover Account
and the vested portion of the Current Balance of
his Employer Contribution Account and Matching
Account shall continue to be held as a part of the
Fund and paid in accordance with the provisions of
Sections 5.07(h) and 5.07(i). Amounts held in the
Participant's Individual Account under the
provisions of this Section 5.07(g) shall continue
to share in the Adjustment of the Fund in
accordance with Section 3.17.
5.07(h)Any amount held in the Participant's Prior Profit
Sharing Plan Account or Pension Rollover Account
and the vested portion of the Current Balance of
his Employer Contribution Account and Matching
Account in excess of the amount eligible for
distribution under Section 5.07(g) shall continue
to be held as a part of the Fund until what would
otherwise be the Participant's Normal Retirement
Date or, if earlier, his Early Retirement Date as
provided in Section 5.07(i) and shall be paid to
the Participant in accordance with Section 5.08.
Any amounts held in a Participant's Prior Profit
Sharing Account or Pension Rollover Account,
Employer Contribution Account and Matching Account
under this Section 5.07(h) shall continue to share
in the Adjustment of the Fund in accordance with
Section 3.17.
5.07(i)Notwithstanding anything contained herein to the
contrary, a Participant who has completed ten (10)
years of Credited Service at his date of
termination of employment may elect in writing to
the Plan Administrator to have his otherwise
deferred benefit under Section 5.07(h) commence in
accordance with Section 5.08 as of the first day of
the month coincident with or next following his
attainment of the age of fifty-five (55) or the
first day of any month thereafter. However, for a
Participant who was a participant in the Meuche,
Hickman and Snow Agency, Inc. Employees' Profit
Sharing Plan, such Participant may elect to
commence benefits as of the first day of the month
coincident with or next following his attainment of
the age of fifty-five (55) regardless of his years
of Credited Service at his date of termination of
employment. If a Participant does not elect to
commence his benefit as hereinbefore provided,
payment of his benefit shall commence as of his
Normal Retirement Date.
For periods commencing on and after January 1,
1990, the amount payable under this Section 5.07(i)
shall be the Current Balance of the Participant's
Prior Profit Sharing Plan Account or Pension
Rollover Account and the vested portion of his
Employer Contribution Account and Matching Account
as of the date the Participant elects to commence
his benefit under this Section 5.07(i). For
periods prior to January 1, 1990, the amount
payable under this Section 5.07(i) equalled the
Current Balance of the Participant's Prior Profit
Sharing Plan Account or Pension Rollover Account
and the vested portion of the Current Balance of
his Employer Contribution Account and Matching
Account as of the Valuation Date coinciding with or
next following the date the Participant elects to
commence his benefit under this Section 5.07(i).
5.07(i) Upon the occurrence of a financial hardship, as
herein defined, a terminated Participant whose
Prior Profit Sharing Plan Account or Pension
Rollover Account and vested portion of the Current
Balance of his Employer Contribution Account and
Matching Account are being held pursuant to the
provisions of Sections 5.07(h) and 5.07(i), may
make application to withdraw all or part of the
Current Balance of his Prior Profit Sharing Account
or Pension Rollover Account and the vested portion
of the Current Balance of his Employer Contribution
and Matching Account.
(A)The Plan Administrator shall authorize a
withdrawal only upon a finding that:
(i) The withdrawal is necessary to enable the
Participant to met unusual or special
situations in his financial affairs which
result in an immediate and heavy financial
need;
(ii) Such amount is not available from other
resources of the Participant; and
(iii) Any distribution hereunder may not exceed
the amount required to meet the immediate
financial need created.
(B)In furtherance of (A) above, a financial
hardship with respect to a Participant shall be
deemed to be present if the withdrawal request
is on account of:
(i) Medical expenses described in IRC Section
213(d) incurred by the Participant, the
Participant's spouse or any dependents of
the Participant (as defined in IRC Section
152;
(ii) Purchase (excluding mortgage payments) of a
principal residence for the Participant;
(iii) The need to prevent the eviction of the
Participant from his principal residence or
foreclosure on the mortgage on the
Participant's principal residence; or
(iv) Such other events as may be determined by
the Internal Revenue Service.
(C)The Plan Administrator shall make a
determination on the basis of all relevant facts
and circumstances that the distribution does not
exceed the amount necessary to satisfy the
financial need and that it is not available from
other resources of the Participant. The Plan
Administrator may rely upon reasonable
representations by the Participant that the need
cannot otherwise be satisfied by:
(i) Reimbursement or compensation by insurance
or otherwise;
(ii) Reasonable liquidation of the Participant's
assets to the extent the liquidation would
not itself cause an immediate and heavy
financial need;
(iii) By other distributions or nontaxable (at
the time of the loan) loans from all plans
maintained by the Employer or any other
employer; or
(iv) By borrowing from commercial sources on
reasonable commercial terms.
If the vested portion of a terminated Participant's
Employer Contribution Account and Matching Account is zero
at his date of termination, the Participant shall be deemed
to have received a distribution of the vested portion of
the Current Balance of his Employer Contribution Account
and Matching Account. If the terminated Participant who
was deemed to receive a distribution is reemployed prior to
incurring five (5) consecutive One Year Breaks in Service,
his Employer Contribution Account and Matching Account
shall be restored to the Current Balance of his Employer
Contribution Account and Matching Account as of the date of
the deemed distribution.
If a terminated Participant receives a distribution of
his entire vested Employer Contribution Account and
Matching Account, the nonvested portion shall be held in
his Employer Contribution Account and Matching Account
until the Valuation Date following a One Year Break in
Service at which time it shall become a Forfeiture, subject
to the reinstatement provisions hereinafter provided, and
be reallocated to remaining Participants in accordance with
Section 3.18. The amount held in the Participant's
Employer Contribution Account and Matching Account
hereunder shall not share in the Adjustment of the Fund
under Section 3.17 unless the Participant is employed by
the Employer on the Valuation Date.
If a terminated Participant does not receive a
distribution of his entire vested Employer Contribution
Account and Matching Account, the nonvested portion shall
be held in his Employer Contribution Account and Matching
Account until the Valuation Date coinciding with or next
following the occurrence of five (5) consecutive One Year
Breaks in Service at which time it shall become a
Forfeiture and be reallocated to remaining Participants in
accordance with Section 3.18. The amount held in the
Participant's Individual Account hereunder shall share in
the Adjustment of the Fund under Section 3.17.
If a terminated Participant who received a distribution
is reemployed prior to incurring five (5) consecutive One
Year Breaks in Service and he repays the amount of the
distribution he received prior to the earlier of (a) five
(5) years after the first day on which the Participant is
subsequently reemployed or (b) the close of the first
period of five (5) consecutive One Year Breaks in Service
commencing after the distribution, the amount which was
forfeited from his Employer Contribution Account and
Matching Account shall be reinstated by the Employer.
Any amount to be reinstated to a Participant's Employer
Contribution Account and Matching Account shall be made, at
the Employer's discretion, from the income or gains of the
Fund, Forfeitures or from Contributions by the Employer.
In the event a Participant who has terminated his
employment with an Employer is reemployed as an Employee
prior to receiving a distribution of the vested portion of
the Current Balance of his Individual Account and
Deductible Account, he shall not be entitled to a
distribution as provided in this Section 5.07 due to his
termination of employment, but shall be entitled to a
distribution as determined herein upon any subsequent
termination of employment for any reason. Further, the
amount previously transferred to the suspense account upon
the Participant's termination of employment shall be
transferred back to the Participant's Employer Contribution
Account and Matching Account as of the Valuation Date
following his reemployment.
If a Participant terminates employment, receives a
distribution and has not incurred a Forfeiture as a result
of such distribution, then upon any subsequent
determination of vesting hereunder at a time when a
Participant is less than one hundred percent (100%) vested
in his Employer Contribution Account and Matching Account,
the vested value of his Employer Contribution Account and
Matching Account (which cumulatively shall be "X") shall be
determined by the formula X = P [AB + D] - D. With respect
to such formula, P equals the vested percentage of his
Employer Contribution Account and Matching Account under
this Section 5.07 at such later date, AB equals the balance
in his Employer Contribution Account and Matching Account
at such later date, and D equals the amount distributed to
the Participant.
5.08 Method of Payment -
5.08(a)Application for Benefits - In order to receive a
benefit under the Plan, a Participant, his
Beneficiary or next of kin must make written
application therefor on a form or forms provided by
the Plan Administrator. The Plan Administrator may
require that there be furnished to it in connection
with such application all information pertinent to
any question of eligibility and the amount of any
benefit.
Each Participant shall have the right to elect
to have his benefit paid under the option
hereinafter set forth in Section 5.08(c) in lieu of
the benefit otherwise provided for in Section
5.08(b).
A Participant who desires to have his benefits
paid under the optional form provided in Section
5.08(c) shall make such an election by written
notification to the Plan Administrator on forms
provided by the Plan Administrator. An election by
a Participant to receive his benefit under Section
5.08(c) may be revoked by such Participant and a
new election made in writing to the Plan
Administrator at any time prior to the commencement
of benefits.
5.08(b)Normal Form - In the absence of the election of the
optional method of payment denoted in Section
5.08(c), the benefit shall be paid in a lump sum.
5.08(c)Optional Form - In lieu of receiving payment in
accordance with Section 5.08(b), a Participant may
elect in writing that his benefits be payable under
one of the following options.
5.08(c)(i)In monthly, quarterly, semi-annual or
annual installments from the Fund and
Contract over a period not to exceed ten
(10) years or the life expectancy of the
Participant and his Beneficiary. All
assets held on behalf of a Participant
pursuant to this Section 5.08(c) shall
continue to share in the Adjustment of
the Fund pursuant to Section 3.17.
Notwithstanding the preceding, a
Participant may elect at any time after
the commencement of benefit payments
under this Section 5.08(c) that any
remaining payments be paid to him in a
lump sum. If the Participant makes such
an election, the lump sum payment shall
be made to the Participant as soon as
reasonably possible following his
election of the lump sum payment.
5.08(c)(ii) A Participant may
elect to receive a lump sum payment of
any portion of his Individual Account
and have the remaining amount paid in
installments as provided in Section
5.08(c)(i).
Notwithstanding anything contained herein to the
contrary, effective for periods commencing on and after
January 1, 1993, in addition to the payment forms provided
in this Section, a Participant or his spouse may elect to
have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan designated by the
Particpant or spouse in the form of a direct rollover. For
purposes of direct rollovers, the following definitions
shall apply.
5.08(d)An eligible rollover distribution is any
distribution of all or any portion of the balance
to the credit of the Participant, his spouse or his
former spouse under a qualified domestic relations
order, except that an eligible rollover
distribution shall not include:
(i) 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 Participant or
his spouse or the joint lives or joint life
expectancies of the Particpant and his
spouse, or for a specified period of ten (10)
years or more;
(ii) any distribution to the extent such
distribution is requireed under IRC Section
401(a)(9); and the portion of any
distribution that is not includible in gross
income (determined without regard to the
exclusion of net unrealized appreciation with
respect to employer securities).
5.08(e)An eligible retirement plan is an individual
retirement account described in IRC Section 408(a),
an individual retirement annuity described in IRC
Section 408(b), an annuity plan described in IRC
Section 403(a) or a qualified trust described in
IRC Section 401(a) that will accept a Participant;s
rollover distribution. However, in the case of an
eligible rollover distribution to the surviving
spouse of a Paarticipant, an eligible retirement
plan is an individual retirement account or
individual retirement annuity.
5.08(f)A direct rollover is a payment by the Plan to an
eligible retirement plan specified by the
Participant or his spouse.
5.09 Benefits to Minors and Incompetents - If any person
entitled to receive payment under the Plan is a minor,
the Plan Administrator, in its discretion, may dispose
of such amount in any one or more of the following ways:
5.09(a)By payment thereof directly to such minor;
5.09(b)By application thereof for the benefit of such
minor;
5.09(c)By payment thereof to either parent of such minor
or to any adult person with whom such minor may at
the time be living or to any person who shall be
legally qualified and acting as guardian of the
person or the property of such minor; provided
only, that the parent or other adult to whom any
amount is paid has advised the Plan Administrator
in writing that he will hold or use such amount for
the benefit of such minor.
If a person entitled to receive payment under the Plan
is physically or mentally incapable of personally receiving
and giving a valid receipt for any payment due (unless
prior claim therefor has been made by a duly qualified
committee or other legal representative), the payment may
be made to the spouse, son, daughter, parent, brother,
sister or other person deemed by the Plan Administrator to
have incurred expense for such person otherwise entitled to
payment.
5.10 Maximum Option Payable - If a Participant elects to have his benefit paid
under an optional form of payment and the designated
Beneficiary is not the spouse of the Participant, the
option elected shall be restricted so that the minimum
distribution incidental benefit requirements of IRC Section
401(a)(9) and Treasury Regulation 1.401(a)(9)-2 are met.
ARTICLE VI
WITHDRAWALS
6.01 Withdrawals Generally - Subject to the terms and conditions set forth
in this Article, a Participant may withdraw all or a part
of his interest in the Plan attributable to his Voluntary
Employee Contributions, Salary Reduction Contributions,
Elective Contributions, any amount held on his behalf as a
result of a Direct Rollover made to the Plan at any time on
or after January 1, 1993 or Deductible Contributions upon
written application to the Plan Administrator.
6.02 Withdrawal of Voluntary Employee Contribution Account - With
fifteen (15) days notice to the Plan Administrator, a Participant
may request a withdrawal of all or a portion of his Voluntary
Employee Contribution Account. However, commencing on and
after January 1, 1993, the fifteen (15) day notice requirement shall no
longer apply and the Plan Administrator shall provide forms for any
Participant to complete. Payment of such amount shall be in a lump sum
as soon as reasonably possible after the first of the month coinciding
with or next following the date the Plan Administrator receives the
withdrawal request. However, commencing on any after January 1,
1994, payment of such amount shall be in a lump sum as soon as reasonably
possible after the Plan Administrator receives the withdrawal request.
A withdrawal under this Section 6.02 shall not be made more than
once in any Plan Year.
Amounts withdrawn pursuant to this Section 6.02 may not
be repaid to the Fund.
6.03 Withdrawal of Deductible Account - With thirty (30) days written notice
to the Plan Administrator, a Participant may request a
withdrawal of all or a portion of the Current Balance of
his Deductible Account. However, for periods commencing on
and after January 1, 1993, the Plan Administrator shall
provide forms to the Participant to elect a withdrawal
hereunder. However, A withdrawal from a Participant's
Deductible Account may be made independent of and without
interrupting a Participant's participation in other aspects
of the Plan. Payment of such amount shall be in a lump sum
and shall be made as soon as reasonably possible after the
Plan Administrator receives the withdrawal request.
6.04 Withdrawal of Salary Reduction Contributions and Elective
Contributions - Subject to the provisions of this Section 6.04,
a Participant shall be allowed to withdraw all or a portion
of his Salary Reduction Contribution Account and Elective Account
attributable only to his Salary Reduction Contributions and
Elective Contributions. Withdrawal of the earnings on his
Salary Reduction Contributions and Elective Contributions
shall not be permitted.
Upon the occurrence of a financial hardship, as herein
defined, a Participant may make application on forms
provided by the Plan Administrator to withdraw all or part
of his Salary Reduction Contributions and Elective
Contributions.
6.04(a)The Plan Administrator shall authorize a withdrawal
of Salary Reduction Contributions and Elective
Contributions only upon a finding that:
(i) The withdrawal is necessary to enable the
Participant to meet unusual or special
situations in his financial affairs which
result in an immediate and heavy financial
need;
(ii)Such amount is not available from other
resources of the Participant; and
(iii)Any distribution hereunder may not exceed the
amount actually required to meet the
immediate financial need created.
6.04(b)In furtherance of Section 6.04(a)(i), a financial
hardship with respect to a Participant shall be
deemed to be present if the withdrawal request is
on account of:
(i) Medical expenses described in IRC Section
213(d) incurred by the Participant, the
Participant's spouse or any dependents of the
Participant (as defined in IRC Section 152);
(ii)Purchase (excluding mortgage payments) of a
principal residence for the Participant;
(iii)Payment of tuition for the next semester or
quarter of post-secondary education for the
Participant, his spouse, children or
dependents;
(iv)The need to prevent the eviction of the
Participant from his principal residence or
foreclosure on the mortgage on the
Participant's principal residence; or
(v) Such other events as may be determined by the
Internal Revenue Service.
6.04(c)In furtherance of Section 6.04(a)(ii), a
distribution will be considered to be necessary to
satisfy an immediate and heavy financial need if,
in the judgment of the Plan Administrator, all of
the following requirements are met:
(i) The Participant has obtained all
distributions, other than hardship
distributions, and all nontaxable loans
currently available from all plans maintained
by the Employer.
(ii) This Plan, by the terms of this Section,
shall suspend a Participant's right to make
Elective Contributions to this Plan until the
first payroll period following the January 1
or July 1 following twelve (12) months after
the hardship distribution is made to the
Participant. In the event more than one (1)
hardship distribution is made within a twelve
(12) month period, the suspension period
shall not be tacked to the remaining portion
of the prior suspension period but a new
suspension period shall commence for such
distribution. However, commencing on and
after January 1, 1993, a Participant may once
again elect to make Elective Contributions
after the twelve (12) month suspension period
on the first payroll period following the
January 1, April 1, July 1, or October 1.
Further, the Plan Administrator shall
determine prior to any such withdrawal that a
similar suspension is imposed by all other
plans maintained by the Employer.
(iii)The Plan, by the terms of this Section,
restricts a Participant's right to make
Elective Contributions to this Plan in the
taxable year following the taxable year of
the hardship distribution to an amount equal
to the applicable limit under IRC Section
402(g) reduced by the Participant's Elective
Contributions in the taxable year of the
hardship distribution. The term "taxable
year" as used hereunder means the
Participant's taxable year.
Further, the Plan Administrator shall
determine that a similar contribution
restriction is imposed by all other plans
maintained by the Employer.
(iv) The financial need cannot be satisfied by the
reasonable liquidation of the Participant's
assets to the extent that the liquidation
would not itself cause an immediate and heavy
financial need.
Upon such findings, the Plan Administrator shall direct
the Trustee and Insurance Company to make the required
amount of the distribution in a lump sum as soon as
reasonably possible following the determination.
Withdrawals under this Section 6.04 shall first reduce a
Participant's Salary Reduction Contributions, if any, and
then his Elective Contributions.
Amounts withdrawn pursuant to this Section 6.04 may not
be repaid to the Fund.
ARTICLE VII
FUNDING
7.01 Contributions - Contributions as provided for in Article III shall be paid
over to the Trustee. All Contributions by the Employer shall be
irrevocable, except as provided in Sections 12.03 and 12.07.
7.02 Trustee - On behalf of all Employers, the Corporation shall enter into
an agreement with the Trustee whereunder the Trustee shall receive,
invest and administer as a trust fund Contributions made under
this Plan in accordance with the Trust Agreement.
The Trust Agreement is attached hereto and incorporated
by reference as a part of the Plan, and the rights of all
persons hereunder are subject to the terms of the Trust
Agreement. The Trust Agreement specifically provides,
among other things, for the investment and reinvestment of
the Fund and the income thereof, management of the Fund,
responsibilities and immunities of the Trustee, removal of
the Trustee and appointment of a successor, accounting by
the Trustee and disbursement of the Fund. The Trustee
shall, in accordance with the terms of such Trust
Agreement, accept and receive all sums of money paid to it
from time to time by the Employer.
For periods through December 31, 1993, the Trustee will
establish and maintain the following three (3) Investment
Funds for the purposes of the investment elections
stipulated in Sections 7.04, 7.05, and 7.06. The Trustee
shall allocate to and invest as part of each Investment
Fund the Contributions and assets held in Prior Profit
Sharing Plan Accounts or Pension Accounts, if applicable,
in accordance with the direction of the Plan Administrator.
Income from investments in each Investment Fund shall be
reinvested in the same Investment Fund. The Trustee shall
transfer assets from one Investment Fund to the other as
directed by the Plan Administrator.
Fund 1 - shall be an equity fund to be invested and
reinvested in such shares of common stock, or other like
evidences of ownership and such other property, or part
interest in property, real or personal, foreign or
domestic, the rate of return from which is not fixed by the
instruments evidencing the investments whether or not
productive of income or consisting of wasting assets. To
the extent that the Trustee in its discretion deems
desirable or pending selection and purchase of other
suitable investments or to provide for current cash
requirements, the Trustee may hold such other investments
the rate of return from which is fixed by the instruments
evidencing the investments.
Fund 2 - shall be a fixed income fund to be invested
and reinvested (a) in such shares of stock (preferred,
preference or guaranteed) or other evidences of ownership,
such bonds, debentures, equipment or collateral trust
certificates, notes or other evidences of indebtedness,
unsecured or secured by mortgages on real or personal
property wherever situated (including any part interest in
a bond and mortgage or note and mortgage whether secured or
unsecured), and such other property, or part interest in
personal property, foreign or domestic, the rate of return
from which is fixed by the instruments evidencing the
investments; (b) in insured savings accounts, time deposits
or certificates of deposit in national banks including the
Trustee bank, or savings and loan institutions, or in
Treasury bill backed money market funds or in security
issues of the United States government or in other high
yielding investments of a safe and prudent nature; and (c)
to the extent the Trustee in its discretion deems
desirable, or pending selection and purchase of other
suitable investments, or to provide for current cash
requirements, in other debt securities (including
obligations of the Government of the United States of
America) payable on demand or having maturities not
exceeding one (1) year and to retain any otherwise
ineligible property received by way of dividend, exchange,
conversion, liquidation or otherwise than by purchase for
as long as the Trustee in its discretion deems desirable
for advantageous realization thereon.
Fund 3 - shall be invested by the Trustee, at its
discretion, in insured savings accounts, time deposits or
certificates of deposit in a national bank, or savings and
loan institutions, or in a Treasury bill backed money
market fund or in security issues of the United States
Government or in other high yielding investments of a safe
and prudent nature or in guaranteed investment contracts
issued by an Insurance Company. In addition to being
available for the investment option elections pursuant to
Section 7.04, 7.05 and 7.06, all amounts held upon a
Participant's retirement, death, or termination of
employment pursuant to Article V which will not be
distributed immediately shall be held in Fund 3 and such
amount shall be transferred to Fund 3 as of the Valuation
Date following the Participant's retirement, death, or
termination of employment. However, commencing on January
1, 1992, any amounts held upon a Participant's retirement,
death or termination of employment shall be subject to the
investment option elections pursuant to Section 7.04, 7.05
and 7.06.
7.03 Contract Fund or Funds - For periods prior to January 1, 1992, on behalf of
all Employers, the Corporation, in order to establish a
Fund for the payment of certain benefits under the Plan,
shall enter into a Contract or Contracts with an Insurance
Company under which a Participant's Voluntary Employee
Contributions, Deductible Contributions and any Elective
Contributions made to the Plan subsequent to July 1, 1987,
will be held, invested and applied to provide the benefits
hereunder. The Insurance Company shall, in accordance with
the terms of the Contract or Contracts, accept and receive
all sums of money paid to it from time to time by the
Employer. The Contract or Contracts are attached hereto
and incorporated by reference as a part of the Plan, and
the rights of all persons hereunder are subject to the
terms of the Contract or Contracts. The Contract or
Contracts shall contain such powers and reservations as to
investments, reinvestment, control and disbursement of the
funds, and such other provisions which are not inconsistent
with the provisions of the Plan and its nature and purposes
as shall be agreed upon and set forth therein. The
Insurance Company shall not have the authority to inquire
into the correctness of the amounts tendered to it as
required under the Plan, nor to enforce the payment of any
Contributions hereunder. Commencing on and after January
1, 1992, Voluntary Employee Contribution Accounts,
Deductible Accounts, Elective Account and Elective
Contributions shall be subject to the investment elections
provided in Sections 7.05, 7.05 and 7.06.
7.04 Direction of Investment of Contributions - For periods
prior to January 1, 1994, upon commencing participation,
each Participant shall have the right to direct that the
entire amount of Employer Contributions, Matching
Contributions, Forfeitures and Salary Reduction
Contributions as well as Elective Contributions for periods
commencing on and after January 1, 1992, being allocated to
his Individual Account thereafter and any assets
attributable to his Pension Rollover Account or Prior
Profit Sharing Plan Account, if applicable, be invested in
Investment Fund 1, Fund 2, or Fund 3 or among such
Investment Funds. Further, an Employee or Participant
making a Rollover Contribution to the Fund in accordance
with Section 3.15 shall have the right as of the January 1
following the date the Rollover Contribution is made to
direct that his Rollover Contributions be invested in
Investment Fund 1, Fund 2, Fund 3 or among such Investment
Funds. Until such election becomes effective, Rollover
Contributions in the initial year made shall be held in
accordance with the provisions of Section 3.18. If
investments are made among the Investment Funds,
investments shall be in increments of no less than twenty-
five percent (25%). Investment Fund elections shall be
made on forms provided by the Plan Administrator and each
Participant shall be provided with appropriate forms at the
time he becomes a Participant.
A Participant's Elective Contributions, Voluntary
Employee Contributions and Deductible Contributions made
pursuant to Sections 3.01, 3.07 and 3.13 shall be invested
in the Contract. However, commencing on and after January
1, 1992, this provision shall no longer apply.
In the absence of a notification by a Participant to
the Plan Administrator concerning the direction of the
investment of Matching Contributions, Employer
Contributions, Salary Reduction Contributions, Forfeitures,
Pension Rollover Account or Prior Profit Sharing Plan
Accounts, if applicable, and Rollover Contributions, the
Plan Administrator shall assume the Participant elected
that the total amount of Matching Contributions, Employer
Contributions, Salary Reduction Contributions and
Forfeitures being allocated to his Individual Account, the
Pension Rollover Account or Prior Profit Sharing Account,
if applicable, and Rollover Contributions, be invested in
Investment Fund 2. Notwithstanding the preceding,
effective as of January 1, 1991, if no election is made by
the Participant, Contributions as hereinbefore provided
shall be invested in Investment Fund 3.
Investment elections hereunder shall be applicable as
of the January 1 following the date the election is made
and shall continue to apply in subsequent Plan Years until
the Participant properly initiates a change in accordance
with Section 7.05. However, commencing on and after
January 1, 1992, investment elections hereunder shall be
applicable as of January 1 and July 1 of each year.
7.05 Change in Direction of Investment of Contributions - For periods
prior to January 1, 1994, each Participant shall have the right
by a written request to the Plan administrator, on forms
provided by the Plan Administrator, at least sixty (60)
days (or such shorter period as may be acceptable to the
Plan Administrator) prior to each January 1 to change
his option concerning the Investment Funds in which the Matching
Contributions, Employer Contributions, Forfeitures, Salary
Reduction Contributions and commencing on and after January 1,
1992, Elective Contributions to be allocated to him are to be invested.
Investments may be invested in Fund 1, Fund 2, Fund 3 or among such
Investment Funds. If investments are made among the Investment Funds,
investments shall be in increments of no less than twenty-five percent
(25%). Any such change shall be applicable as of the January 1
following the date the change is made and shall continue to apply in
subsequent Plan Years until the Participant properly
initiates another change.
7.06 Change in Direction of Investment of Prior Contributionss - For
periods prior to January 1, 1994, each Participant shall
have the right by written request to the Plan Administrator,
on forms provided by the Plan Administrator, at least sixty
(60) days (or such shorter period as may be acceptable to
the Plan Administrator) in advance to direct that the
balance in his Individual Account as of any January 1,
attributable to prior Matching Contributions, Employer Contributions,
Salary Reduction Contributions, Forfeitures, Pension Rollover Account or
Prior Profit Sharing Plan Account, if applicable, Non-
Restricted Rollover Account and Restricted Rollover Account
and commencing on and after January 1, 1992, Elective
Contributions invested in the Investment Fund options, be
liquidated and the proceeds thereof transferred to another
Investment Fund option or among the Investment Fund options
for reinvestment. Each such election shall be in
increments of no less than twenty-five percent (25%) as it
relates to each such election. Any such change shall be
applicable as of the January 1 following the date the
change is made and shall continue to apply until the
Participant properly initiates another change. However,
effective on and after January 1, 1992, investment election
hereunder shall be available as of January 1 and July 1 of
each year.
All requests for changes in the investment of amounts
held in the Matching Accounts, Employer Contribution
Accounts, Salary Reduction Contribution Accounts, Pension
Rollover Accounts or Prior Profit Sharing Plan Accounts, if
applicable, and Non-Restricted Rollover Account and
Restricted Rollover Account and on and after January 1,
1992, Elective Accounts shall be addressed in writing to
the Plan Administrator. The Plan Administrator shall in
writing forward appropriate directions to the Trustee for
execution no later than five (5) business days prior to
each December 31, and commencing on and after January 1,
1992 each June 30 and the Trustee will carry out such
directions as expeditiously as practicable.
7.07 Investment Elections Commencing on and after January 1,
1994 - Commencing on and after January 1, 1994, the
investment elections under the Plan may be made in five
percent (5%) increments among six (6) investment funds
consisting of the protected fund and five (5) mutual funds
selected by the Corporation. Further, Particpants shall
have the right to change their investment elections as
often as they wish through the use of an automatmed voice
response system provided through the recordkeeper.
ARTICLE VIII
FIDUCIARIES AND PLAN ADMINISTRATIONAND PLAN ADMINISTRATION
8.01General - Each Fiduciary who is delegated
specific duties or responsibilities under the Plan or any
Fiduciary who assumes such a position with the Plan shall
discharge his duties solely in the interest of Participants
and Beneficiaries and for the purpose of providing such
benefits as stipulated herein to such Participants and
Beneficiaries. In carrying out such duties and
responsibilities, each Fiduciary shall act with the care,
skill, prudence and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in exercising such
authority or duties. Further, a Fiduciary shall have an
overall responsibility to diversify 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.
A Fiduciary may serve in more than one Fiduciary
capacity and may employ one or more persons to render
advice with regard to his Fiduciary responsibilities. If a
Fiduciary is serving as such without compensation, all
expenses reasonably incurred by such Fiduciary shall be
reimbursed by the Employer or, at the Corporation's
direction, from the Trustee or Insurance Company.
A Fiduciary may delegate any of his responsibilities
for the operation and administration of the Plan. In
limitation of this right, a Fiduciary may not delegate any
responsibilities as contained herein relating to the
management or control of the Investment Funds except
through the employment of an investment manager as provided
in Section 8.03 and in the Trust Agreement relating to the
Investment Funds.
8.02 Corporation - The Corporation established
and maintains the Plan for the benefit of its Employees and
those of participating Employers and of necessity retains
control of the operation and administration of the Plan.
In accordance with specific provisions of the Plan, the
Corporation has, as herein indicated, delegated certain of
these rights and obligations to the Employer, Trustee,
Insurance Company and Plan Administrator and these parties
shall be responsible solely for these delegated rights and
obligations.
The Employer shall indemnify each member of the Board,
the Plan Administrator, Trustee, Insurance Company and any
other person to whom any fiduciary responsibility with
respect to the Plan is delegated, from and against any and
all liabilities, costs and expenses incurred by such
persons as a result of any act or omission to act in
connection with the performance of their fiduciary duties,
responsibilities and obligations under the Plan and ERISA,
except for liabilities and claims arising from such
Fiduciary's willful misconduct or gross negligence. For
this purpose, the Employer may obtain, pay for and keep
current, a policy or policies of insurance; however, such
insurance shall not release the Employer of liability under
this provision.
The Employer shall supply such full and timely
information for all matters relating to the Plan as the
Plan Administrator, Trustee, Insurance Company, and
accountant engaged on behalf of the Plan by the Corporation
may require for the effective discharge of their respective
duties.
8.03 Trustee - The Trustee, in accordance with the
Trust Agreement, shall have exclusive authority and
discretion to manage and control the Fund held by it,
except that the Corporation in its discretion may employ at
any time and from time to time an investment manager [as
defined in ERISA Section 3(38)] to direct the Trustee with
respect to all or a designated portion of the assets
comprising the Investment Funds. The employment of an
investment manager may be of a continuing nature or
otherwise, and the Corporation shall promptly notify the
Trustee in writing of such employment or any changes
related thereto. The Trustee, acting in accordance with
the directions of a duly appointed investment manager or
upon direction of the Corporation, shall not be liable for
the making, retention or sale of any investment or
reinvestment made in accordance with any such direction.
8.04 Insurance Company - The Insurance Company, in accordance
with the Contract, shall have exclusive authority and
discretion to manage and control the applicable funds
held by it as provided in this Plan. However, on and
after January 1, 1993, all current contracts and future
contracts shall be held by the Trustee and shall be
investment only contracts.
8.05 Plan Administrator - The Corporation shall appoint a Plan
Administrator to hold office during the pleasure of the
Corporation. No compensation shall be paid from the Fund
to the Plan Administrator for service as Plan
Administrator.
In accordance with the provisions hereof, the Plan
Administrator has been delegated certain administrative
functions relating to the Plan with the duty and
discretionary authority necessary to enable him to properly
carry out such duties. The Plan Administrator shall have
no power in any way to modify, alter, add to or subtract
from any provisions of the Plan.
The Plan Administrator shall have the duty and
discretionary authority to construe the Plan, and to
determine all questions that may arise thereunder relating
to (a) the eligibility of individuals to participate in the
Plan, (b) the amount of benefits to which any Participant
or Beneficiary may become entitled hereunder, and (c) any
situation not specifically covered by the provisions of the
Plan. All disbursements by the Trustee and Insurance
Company, except for the payment of operating expenses of
the Plan and Trust Fund or Contract Fund at the direction
of the Corporation as provided in Section 12.03 shall be
made upon, and in accordance with, the written directions
of the Plan Administrator. When the Plan Administrator is
required in the performance of its duties hereunder to
administer, construe, or reach a determination under any of
the provisions of the Plan, he shall do so in a uniform,
equitable and nondiscriminatory basis.
8.06 Claims for Benefits - All claims for benefits under the Plan shall be
submitted to the Plan Administrator, who shall have the
responsibility for determining the eligibility of any
Participant or Beneficiary for benefits. All claims for
benefits shall be made in writing and shall set forth the
facts which such Participant or Beneficiary (the
"applicant") believes sufficient to entitle him to the
benefit claimed. The Plan Administrator may adopt forms
for the submission of claims for benefits, in which case
all claims for benefits shall be filed on such forms. The
Plan Administrator shall provide applicants with all such
forms.
Upon receipt by the Plan Administrator of a claim for
benefits, it shall determine all facts which are necessary
to establish the right of an applicant to benefits under
the provisions of the Plan and the amount thereof as herein
provided. The Plan Administrator shall approve, deny and
investigate all claims. Upon request, the Plan
Administrator shall afford any applicant the right of a
hearing with respect to any finding of fact or
determination related to any claim for benefits under the
Plan. If any claim for benefits is denied, the applicant
shall be notified of such decision in accordance with the
provisions of Section 8.07.
8.07 Claims Procedures - The applicant shall be notified in
writing of any adverse decision with respect to his claim
within ninety (90) days after its submission. The notice
shall be written in a manner calculated to be understood
by the applicant and shall include:
8.06(a) The specific reason or reasons for the denial;
8.06(b) Specific references to the pertinent Plan
provisions on which the denial is based;
8.06(c) A description of any additional material or
information necessary for the applicant to perfect
the claim and an explanation why such material or
information is necessary; and
8.06(d) An explanation of the Plan's claim review
procedures.
If special circumstances require an extension of time
for processing the initial claim, a written notice of the
extension and the reason therefor shall be furnished to the
applicant before the end of the initial ninety (90) day
period. In no event shall such extension exceed ninety
(90) days.
If a claim for benefits is denied or the applicant has
no response to such claim within ninety (90) days of its
submission (in which case the claim for benefits shall be
deemed to be denied), the applicant or his duly authorized
representative, at the applicant's sole expense, may appeal
the denial to the Plan Administrator within sixty (60) days
of the receipt of written notice of denial or sixty (60)
days from the date such claim is deemed denied. In
pursuing such appeal, the applicant or his duly authorized
representative:
8.06(e) May request in writing that the Plan
Administrator review the denial;
8.06(f) May review pertinent documents; and
8.06(g) May submit issues and comments in writing.
The decision on review shall be made within sixty (60)
days of receipt of the request for review, unless special
circumstances require an extension of time for processing,
in which case a decision shall be rendered as soon as
possible but not later than one hundred twenty (120) days
after receipt of a request for review. If such an
extension of time is required, written notice of the
extension shall be furnished to the applicant before the
end of the original sixty (60) day period. The decision on
review shall be made in writing, shall be written in a
manner calculated to be understood by the applicant, and
shall include specific references to the provisions of the
Plan on which such denial is based. If the decision on
review is not furnished within the time specified above,
the claim shall be deemed denied on review.
8.08 Records - All acts and determinations of the Plan
Administrator shall be duly recorded, and all such records
and other documents as may be necessary in exercising its
duties under the Plan shall be preserved in the custody of
the Plan Administrator. Such records and documents at all
times shall be open for inspection to, and for the purpose
of making copies by any person designated by the
Corporation. The Plan Administrator shall provide such
timely information, resulting from the application of his
responsibilities under the Plan, as needed by the Trustee,
Insurance Company and accountant engaged on behalf of the
Plan by the Corporation, for the effective discharge of
their respective duties.
8.09 Missing Persons - The Plan Administrator
shall make a reasonable effort to locate all persons
entitled to benefits under the Plan; however,
notwithstanding any provision in the Plan to the contrary,
if after a period of five (5) years from the date such
benefit is due, any such person entitled to benefits has
not been located, his rights under the Plan shall be
construed as if the Participant had died. Before this
provision becomes operative, the Plan Administrator shall
send a certified letter to such person at his last known
address advising him that his interest or benefits under
the Plan shall be so construed. Any such amounts shall be
held by the Trustee and Insurance Company for a period of
three (3) additional years (or a total of eight (8) years
from the time the benefits first become payable). If no
distributee can be found, then any unclaimed benefits shall
be dealt with according to the laws of the state in which
such Participant is legally domiciled pertaining to
abandoned intangible personal property held in a fiduciary
capacity.
ARTICLE IX
AMENDMENT AND TERMINATION OF THE PLAN
9.01 Amendment of the Plan - The Corporation shall have the
right at any time by action of the Board to modify, alter
or amend the Plan in whole or in part; provided, that
the duties, powers and liability of the Trustee and
Insurance Company hereunder shall not be increased
without their written consent; the amount of
benefits which at the time of any such
modification, alteration or amendment have accrued for any
Participant or Beneficiary hereunder shall not be affected
adversely thereby; and no such amendment shall have the
effect of causing a reversion to the Employer of any part
of the principal or income of the Fund. Notwithstanding
anything contained herein to the contrary, no amendment to
the Plan shall decrease a Participant's vested Individual
Account or Deductible Account balance or eliminate an
optional form of distribution.
If the Plan's vesting schedule is amended or the Plan
is amended in any way that directly or indirectly affects
the computation of a Participant's vested benefit or the
Plan is deemed amended by an automatic change to or from a
top heavy vesting schedule, each Participant with at least
three (3) years of Credited Service may elect within a
reasonable period after the adoption of the amendment or
change, to have his vested percentage computed under the
Plan without regard to such amendment or change. The
period during which the election may be made shall commence
with the date the amendment is adopted or deemed to be made
and shall end on the latest of sixty (60) days after (a)
the amendment is adopted, (b) the amendment is effective or
(c) the Participant is issued written notice of the
amendment by the Employer or Plan Administrator.
9.02 Termination of the Plan - The Employer expects to continue the Plan
indefinitely, but continuance is not assumed as a
contractual obligation, and each Employer reserves the
right at any time by action of its board of directors to
terminate the Plan as applicable to itself. If an Employer
terminates or partially terminates the Plan or discontinues
its Contributions at any time, each affected Participant
shall become fully vested in the amount in his Individual
Account.
If the Plan is terminated by an Employer, the Plan
Administrator shall value the Fund as of the date of
termination. That portion of the Fund applicable to any
Employer for which the Plan has not been terminated shall
be unaffected. The Individual Accounts and Deductible
Accounts of the Participants and Beneficiaries affected by
the termination, as determined by the Plan Administrator,
shall continue to be administered as a part of the Fund or
distributed in a lump sum to such Participants or
Beneficiaries provided the distribution is otherwise
permitted in accordance with rules and regulations of the
Internal Revenue Service under IRC Section 401(k).
ARTICLE X
PROVISIONS RELATIVE TO EMPLOYERS INCLUDED IN PLAN
10.01Method of Participation - Any organization which is a member of the
same controlled group of organizations, as defined in IRC
Sections 414(b), 414(c), 414(m) and 414(o), as the
Corporation, with the approval of the Board, may become a
party to the Plan by adopting the Plan for its Employees.
Any organization which becomes a party to the Plan promptly
shall deliver to the Trustee and Insurance Company a
certified copy of the resolutions or other documents
evidencing its adoption of the Plan and a written
instrument showing the Board's approval of the organization
becoming a party to the Plan. The Plan shall be maintained
as a single Plan for all participating Employers.
10.02Withdrawal - Any one or more of the Employers
included in the Plan may withdraw from the Plan at any time
by giving six (6) months advance notice in writing of its
or their intention to withdraw to the Board and Plan
Administrator (unless a shorter notice is agreed to by the
Board).
Upon receipt of notice of any such withdrawal, the Plan
Administrator shall certify to the Trustee and Insurance
Company the equitable share of such withdrawing Employer in
the applicable Fund to be determined by the Plan
Administrator.
The Trustee thereupon shall set aside from the portion
of the Fund then held by it such securities and other
property as it, in its sole discretion, shall deem to be
equal in value to such equitable share. If the Plan is to
be terminated with respect to such Employer, the amount set
aside shall be dealt with in accordance with the provisions
of Section 9.02. If the Plan is not to be terminated with
respect to such Employer, the Trustee shall turn over such
amount to the trustee designated by such Employer, and such
securities and other property thereafter shall be held and
invested as a separate trust of such Employer, and shall be
used and applied according to the terms of a new agreement
and declaration of trust between the withdrawn Employer and
the designated trustee.
The Insurance Company thereupon shall set aside from
the portion of the Fund then held by it such securities and
other property as it, in its sole discretion shall deem to
be equal in value to such equitable share. If the Plan is
to be terminated with respect to such Employer, the amount
shall be dealt with in accordance with the provisions of
Section 9.02. If the Plan is not to be terminated with
respect to such Employer, the Insurance Company shall
invest and administer the applicable Fund as a separate
fund of such Employer. Such Fund shall be used and applied
according to the terms of a new group annuity contract
between the withdrawn Employer and the Insurance Company,
provided that the Insurance Company's then applicable
underwriting requirements permit such contract to be
issued.
Neither the segregation of the Fund assets upon the
withdrawal of an Employer, nor the execution of a new
Contract or trust agreement pursuant to any of the
provisions of this Section 10.02 shall operate to permit
any part of the corpus or income of the Fund to be used for
or diverted to purposes other than for the exclusive
benefit of Participants and Beneficiaries except as
otherwise may be provided in Sections 12.03 and 12.07.
ARTICLE XI
TOP HEAVY PLAN PROVISIONS
11.01General - Notwithstanding anything contained
herein to the contrary, if this Plan when combined with all
other plans required to be aggregated pursuant to IRC
Section 416(g) is deemed to be a Top Heavy Plan for any
Plan Year, the following conditions shall become operative.
11.02Definitions - For purposes of this Article,
the following definitions shall be applicable:
11.02(a) Determination Date means the last day of the Plan
Year preceding the Plan Year in which the
determination is being made. In the case of the
first Plan Year, Determination Date means the last
day of such Plan Year.
11.02(b) Key Employee means any employee, former employee
or beneficiary of a former employee in an Employer
plan who, at any time during the Plan Year or any
of the four (4) preceding Plan Years is:
(i) An officer of the Employer having annual
Maximum Compensation greater than fifty
percent (50%) of the amount in effect under
IRC Section 415(b)(1)(A) for any such Plan
Year;
(ii)One (1) of the ten (10) employees having
annual Maximum Compensation from the Employer
of more than the limitation in effect under
IRC Section 415(c)(1)(A) and owning (or
considered as owning within the meaning of
IRC Section 318) more than a one-half percent
(1/2%) interest and the largest interest in
the Employer;
(iii)A Five Percent (5%) Owner of the Employer; or
(iv)A one percent (1%) owner of the Employer
having annual Maximum Compensation from the
Employer of more than one hundred fifty
thousand dollars ($150,000).
For purposes of Section 11.02(b)(i), no more
than fifty (50) employees or, if lesser, the
greater of three (3) or ten percent (10%) of
employees shall be treated as officers. Further,
for purposes of determining the number of officers
taken into account under Section 11.02(b)(i),
employees described in IRC Section 414(q)(8) shall
be excluded.
With respect to Section 11.02(b)(ii), if two (2)
employees have the same ownership interest in the
Employer, the employee having the greater annual
Maximum Compensation shall be treated as having a
larger interest.
11.02(c) Non-Key Employee means an employee, former
employee or beneficiary of a former employee who is
not a Key Employee.
11.02(d) Top Heavy Plan generally means on or after January
1, 1984, any plan under which, as of any
Determination Date, the present value of the
cumulative accrued benefits (inclusive of Elective
Contributions) for Key Employees exceeds sixty
percent (60%) of the present value of the
cumulative accrued benefits for all employees.
For purposes of this definition:
(i) If the plan is a Defined Contribution Plan,
the present value of cumulative accrued
benefits shall be deemed to be the market
value of all employee accounts under the plan
as of the Top Heavy Valuation Date plus
contributions to the plan as of the
Determination Date. If the plan is a Defined
Benefit Plan, the present value of cumulative
accrued benefits shall be deemed to be the
lump sum present value of a participant's
accrued benefit under such plan calculated on
the basis of interest and mortality as set
forth in said plan as of the Top Heavy
Valuation Date plus contributions due under
the plan as of the Determination Date.
Notwithstanding the above, for purposes of
determining the present value of the
cumulative accrued benefits, distributions
made within a five (5) year period ending on
the Determination Date shall be included.
The account balances and accrued benefits of
a Non-Key Employee who was previously a Key
Employee shall be excluded from the
computation hereunder.
(ii)Each plan of the Employer required to be
included in an "aggregation group" shall be
treated as a Top Heavy Plan if such group is
a top heavy group.
(iii)The term "aggregation group" means
(A) each plan of the Employer that is
currently effective or which has
terminated within the five (5) year
period ending on the Determination Date
in which a Key Employee is a participant
during the plan year containing the
Determination Date or any of the four
(4) preceding plan years; and
(B) each other plan of the Employer which
enables any plan in (A) to meet the
requirements of IRC Sections 401(a)(4)
or 410.
A permissive aggregation group consists of
plans of the Employer that are required to be
aggregated, plus one (1) or more plans of the
Employer that are not part of a required
aggregation group but that satisfy the
requirements of IRC Sections 401(a)(4) and
410 when considered together with the
required aggregation group.
(iv)If any individual has not performed any
service for the Employer at any time during
the five (5) year period ending on the
Determination Date, any accrued benefit for
such individual shall not be taken into
account in the testing procedure herein
described.
11.02(e) Top Heavy Valuation Date means the most recent
Valuation Date occurring within a twelve (12) month
period ending on the Determination Date.
These definitions shall be interpreted consistent with
IRC Section 416 and rules and regulations issued
thereunder. Further, such law and regulations shall be
controlling in all determinations under these definitions
inclusive of any provisions and requirements stated
thereunder but hereinabove absent.
11.03Minimum Top Heavy Contribution - In a Plan Year in which the
Plan becomes a Top Heavy Plan, inclusive of a Plan
Year in which the Plan is a frozen plan
pursuant to the provisions of Section
1.416-1 T-5 of the regulations under IRC Section 416, but
has not terminated, and the aggregate Contributions by the
Employer to all Non-Key Employees who are Participants
allocated to their Individual Accounts are less than three
percent (3%) of Maximum Compensation exclusive of Elective
Contributions for Plan Years beginning after December 31,
1988, then the Employer shall contribute to the Plan an
amount necessary to provide a minimum Contribution,
including Forfeitures, of at least three percent (3%) of
Maximum Compensation to such Non-Key Employees who are
Participants who are employed as of the last day of the
Plan Year regardless of (a) whether such Non-Key Employee
has completed one thousand (1,000) Hours of Service, (b)
whether such Non-Key Employee has made Elective
Contributions to the Plan, or (c) the level of the Non-Key
Employee's Compensation. The minimum Contribution required
herein shall not be forfeited in the event the Participant
withdraws his Elective Contributions. In no event,
however, shall the allocation of the minimum Contribution
to the Individual Accounts of Non-Key Employees who are
Participants be greater than the total allocation of
Contributions by the Employer, inclusive of Elective
Contributions and Forfeitures, to the Individual Accounts
for Key Employees. Any special Contribution or
reallocation as herein provided shall be made to the
Employer Contribution Account on the basis of the ratio
that the Non-Key Employees' Maximum Compensation bears to
the total Maximum Compensation of all Non-Key Employees.
A Top Heavy Contribution of less than three percent
(3%) shall not be permissible if the Employer maintains a
Defined Benefit Plan which designated this Plan to satisfy
IRC Section 401(a).
11.04Defined Benefit Plan Minimum Accrued Benefit - If the Employer also
maintains a Defined Benefit Plan and the Defined Benefit
Plan provides the minimum accrued benefit determined
pursuant to IRC Section 416(c)(1), then the adjustment
provided in Section 11.03 shall not be required.
11.05Multiple Plan Participation - If Section 11.03 or Section 11.04 is
applicable, then the multiplier of 1.25 in Sections 4.05(a)
and 4.05(c) shall be reduced to 1.0.
11.06No Duplication of Minimum Benefit - These Top Heavy Plan
provisions shall not require that the entire defined benefit
minimum benefit and defined contribution minimum contribution
be provided. To the extent that there is a defined benefit
accrued benefit, it shall be controlling. To the extent that there is
a Contribution by the Employer to a Defined Contribution
Plan, then there shall be a determination as to whether the
defined contribution amount is comparable to the difference
between the defined benefit minimum benefit and the minimum
defined benefit accrued benefit required under IRC Section
416. If the defined contribution amount is not comparable,
then the difference shall be provided in the Defined
Benefit Plan.
11.07Top Heavy Assumptions - For purposes of determining whether a Defined
Benefit Plan is a Top Heavy Plan, calculations shall be
based upon actuarial assumptions stipulated in such plan
for this purpose. If no assumptions are provided, the
calculation shall be based upon The UP-1984 Table of
Mortality at five percent (5%) interest with such
determination being made on the Determination Date.
ARTICLE XII
MISCELLANEOUS
12.01Governing Law - The Plan shall be construed,
regulated and administered according to the laws
of the Commonwealth of Virginia except in those areas
preempted by the laws of the United States of America.
12.02Construction - The headings and subheadings
in the Plan have been inserted for convenience of reference
only and shall not affect the construction of the
provisions hereof. In any necessary construction the
masculine shall include the feminine and the singular the
plural, and vice versa.
12.03Expenses - The operating expenses of the Plan
and Fund shall be paid by the Employer or, upon direction
of the Corporation, from the Fund to the extent such
expenses are permitted to be paid from the Fund. The
determination of whether expenses may be charged against
the Fund shall be made by the Corporation.
12.04Participant's Rights; Acquittance - No Participant shall acquire any
right to be retained in the Employer's employ by virtue of
the Plan, nor upon his dismissal or voluntary termination
of employment, shall he have any right to or interest in
the Fund other than as specifically provided herein. The
Employer shall not be liable for the payment of any benefit
provided for herein; all benefits hereunder shall be
payable only from the Fund.
12.05Spendthrift Clause - Except as provided in IRC Section 401(a)(13)(B)
related to qualified domestic relations orders as defined
in IRC Section 414(p), none of the benefits, payments,
proceeds, or distributions under this Plan shall be subject
to the claim of any creditor of a Participant or
Beneficiary hereunder or to any legal process by any
creditor of a Participant or Beneficiary; and neither the
Participant or any Beneficiary shall have any right to
alienate, commute, anticipate, or assign any of the
benefits, payments, proceeds or distributions under this
Plan.
12.05(a) In the case of qualified domestic relations orders
as defined in IRC Section 414(p), if a benefit is
being paid or is to be paid pursuant to a domestic
relations order entered into prior to January 1,
1985, such order shall be considered to be a
Qualified Domestic Relations Order.
12.05(b) In accordance with this Section and IRC Section
401(a)(13), the prohibition on alienation or
assignment of benefits shall include any
arrangement:
(i) which provides for the payment to the
Employer of benefits under the Plan which
would otherwise be due to the Participant or
Beneficiary; and
(ii) whether direct or indirect, revocable or
irrevocable, whereby a party acquires from
the Participant or Beneficiary a right or
interest enforceable against the Plan in, or
to, all or any part of a Plan benefit payment
which is, or may become, payable to the
Participant or Beneficiary.
12.05(c) However, such alienation or assignment of benefits
shall not include any arrangements:
(i) for the recovery of amounts described in
ERISA Section 4045(b), relating to the
recapture of certain payments;
(ii) for the withholding of federal, state or
local tax from benefit payments under the
Plan;
(iii)for the recovery by the Plan of overpayment
of benefits previously made to a Participant
or Beneficiary;
(iv) for the transfer of benefit rights from this
Plan to another plan;
(v) for the direct deposit of benefit payments
to an account in a bank, savings and loan
association or credit union, provided such
arrangement is not part of an arrangement
constituting an assignment or alienation;
(v) whereby a Participant's accrued
nonforfeitable benefit is used as security
for a loan from the Plan, provided that the
Plan's loan provision is limited to loans
from the Plan and does not include the use of
benefits under the Plan as security for a
loan from a party other than the Plan, and,
provided further that the loan must be one
which would be exempt from the tax imposed by
IRC Section 4975 (relating to prohibited
transactions); or
(vii)whereby a Participant or Beneficiary directs
the Plan to pay all or a portion of his
benefit to a third party (which may include
the Employer), if such direction is revocable
at any time by the Participant or Beneficiary
and the third party files written
acknowledgement with the Plan Administrator,
pursuant to the provisions of Section
1.401(a)-13(e)(2) of the Regulations under
IRC Section 401(a)(13).
If the Plan Administrator determines that any person
entitled to any payments under the Plan has become
insolvent or bankrupt or has attempted to anticipate, sell,
transfer, assign, pledge, encumber, charge or otherwise in
any manner alienate any benefit or other amount payable to
him under the Plan or that there is any danger of any levy
or attachment or other court process or encumbrance on the
part of any creditor of such person entitled to payments
under the Plan against any benefit or other amounts payable
to such person, the Plan Administrator, at any time, in his
discretion, may direct the Trustee or Insurance Company to
withhold any or all payments to such person under the Plan
and apply the same for the benefit of such person in such
manner and proportion as the Plan Administrator may deem
proper.
Notwithstanding anything contained herein to the
contrary, with respect to a debt due by the Participant to
the Employer, a Participant or Beneficiary in pay status
may assign or alienate rights to future benefit payments
provided that any such assignment or alienation:
12.05(d) is voluntary and revocable;
12.05(e) does not exceed ten percent (10%) of any benefit
payment;
12.05(f) is neither for the purpose, nor has the effect, of
defraying Plan administrative costs; and
12.05(g) the Employer files a written acknowledgement with
the Plan Administrator within ninety (90) days of
the assignment that the Employer has no enforceable
right in, or to, any part of the Plan benefit
payment except as may be assigned pursuant to this
Section.
12.06Merger, Consolidation or Transfer - If the Plan is merged
or consolidated with another plan or assets or liabilities
of the Plan are transferred to another plan, each then Participant
or Beneficiary shall not, as a result of such event, be entitled on the day
following such merger, consolidation or transfer under the termination
of the Plan provisions to a lesser benefit than the benefit to
which he was entitled to on the date prior to the merger,
consolidation or transfer if the Plan had then terminated.
12.07Mistake of Fact - Notwithstanding anything herein to the contrary,
there shall be returned to the Employer any Contribution which
was made as follows:
12.07(a) By mistake of fact, as determined by the Internal
Revenue Service or in such other manner as the
Internal Revenue Service may permit;
12.07(b) Prior to receipt of initial qualification, if the
Plan received an adverse determination with respect
to its initial qualification and the application
for determination was made by the time prescribed
by law for filing the Employer's tax return for the
taxable year in which the Plan was adopted, or such
later date as the Secretary of Treasury may
prescribe; or
12.07(c) In an amount that exceeded the deductible limits
on such Contribution as set forth under IRC Section
404, as determined by the Internal Revenue Service
on in such other manner as the Internal Revenue
Service may permit.
The return of any Contribution as hereinbefore provided
shall be made within one (1) year after payment of the
Contribution, denial of the initial qualification or
disallowance of the deduction (to the extent disallowed),
whichever is applicable. Any Contribution returned due to
a mistake of fact under Section 12.07(a) or disallowance of
a tax deduction under Section 12.07(c) shall be reduced by
its share of the losses and expenses of the Fund, but shall
not be increased by income or gains of the Fund, provided
that the return of such Contribution shall not be permitted
to cause the balance of the Individual Account of any
Participant to be less than the balance that would have
been in his Individual Account had such Contribution not
been made. Any Contribution returned to the Employer due
to denial of initial qualification under Section 12.07(b)
shall be equal to the entire assets of the Plan
attributable to Contributions by the Employer.
12.08Indemnification - The Employer shall
indemnify and hold harmless each person or persons who may
serve as Plan Administrator from any and all claims, loss,
damages, expenses (including attorney's fees) and liability
(including any amounts paid in settlement) arising from any
act or omission of such person or persons, except when the
same is judicially determined to be due to the gross
negligence or willful misconduct of such person or persons.
No Plan assets may be used for any such indemnification.
12.09Counterparts - The Plan, Trust Agreement and
Contract may be executed in any number of counterparts,
each of which shall constitute but one and the same
instrument, and may be sufficiently evidenced by any one
counterpart.
12.10Maximum Deductible Contribution - In no event shall the Employer be
obligated to make a Contribution for a given Plan Year in
excess of the maximum amount deductible for the Employer
under IRC Section 404(a)(3)(A), or any statute or rule of
similar import.
12.11Payment of Contributions Made by the Employer - Each Employer shall
pay to the Trustee and Insurance Company its Contributions
for each Plan Year within the time prescribed by law,
including extensions of time for the filing of its federal
income tax return for such Plan Year.
12.12Notification of Individual Account and Deductible Account
Balance - After the close of each Plan Year or more
frequently as determined by the Plan Administrator, the
Plan Administrator shall notify each Participant of the
amount of his share in the Adjustments and Contributions
for the Plan Year (or other period) just completed, and the
new balance of his Individual Account and Deductible
Account.
12.13Exclusive Benefit - The Employer shall not be entitled to any part of the
corpus or income of the Fund, and no part thereof shall be
used for or diverted to purposes other than for the
exclusive benefit of Participants and Beneficiaries
hereunder except as provided in Sections 12.03 and 12.07.
Second Amendment to the
Hilb, Rogal and Hamilton Company
Profit Sharing Savings Plan
This SECOND AMENDMENT to the Hilb, Rogal and Hamilton
Company Profit Sharing Savings Plan (the "Plan"), authorized
by resolution of the Hilb, Rogal and Hamilton Company (the
"Corporation") Board of Directors (the "Board"), is made
effective as of January 1, 1998, unless and except as
otherwise provided for herein.
Recitals
WHEREAS, the Corporation has retained the right under
Article IX of the Plan to amend the Plan's provisions; and
WHEREAS, the Corporation has determined that it is in
the best interest of the Corporation and the participants in
the Plan (the "Participants") that the Plan offer the common
stock of the Corporation (the "Common Stock") to the
Participants as an investment fund option under the Plan
under a common stock fund.
Amendment
NOW, THEREFORE, the following Sections and provisions
of the Plan are hereby amended or added, as follows:
1. Section 1.05A is hereby added to the Plan, to read
as folllows:
1.05A Common Stock means the common stock
[without par value] of Hilb, Rogal and Hamilton Company.
2. Section 1.11A is hereby added to the Plan, to read
as follows:
1.11A Current Market Value means, with respect
to the Common Stock, the closing composite quotation price
on the New York Stock Exchange as of the date of
determination; or, if the New York Stock Exchange is closed
on such date, the closing price on the last preceding
trading date.
3. Section 1.33A is hereby added to the Plan, to read
as follows:
1.33A Investment Fiduciary means, as
applicable from time to time, either Hilb, Rogal and
Hamilton Company, the Board or any committee of the Board
then serving as the qualified plan investment committee of
the Board (which also may be referred to herein as the
"Qualified Plan Investment Committee"). The Investment
Fiduciary shall be the "named fiduciary" responsible for the
review and selection of the Investment Funds under the Plan.
4. Section 1.34 is hereby amended and restated, to
read as follows:
1.34 Investment Fund means each investment fund
described or provided for under Article VII of the Plan, as
amended from time to time, including any segregated pooled
asset account that is established or maintained under the
Trust for investment purposes. Effective as of January 1,
1998, the term Investment Fund shall include the Hilb, Rogal
and Hamilton Company Common Stock Fund (which also may be
referred to herein as the "HRH Common Stock Fund" or the
"Common Stock Fund").
5. New paragraphs are hereby added to the end of
Section 1.62, to read as follows:
Notwithstanding the forgoing, effective as of January 1,
1994, pursuant to the Corporation and the Administrator
changing certain Plan valuation and operations systems to a
daily basis, the term Valuation Date shall also include any
Daily Valuation Date hereunder.
Daily Valuation Date means each day of the calendar
year in which securities may be traded on the New York Stock
Exchange, or other day as of which gains and losses
attributable to a particular Investment Fund hereunder are
allocated (or as of which such Investment Fund shall be
adjusted for investment elections and transfer elections
submitted by the Participants), as otherwise provided for
hereunder or under the terms and procedures of such
Investment Fund.
6. Section 5.11 is hereby added to the Plan, to read
as follows:
5.11 Distributions and Withdrawals in Common Stock
Notwithstanding any provision of Article V or
Article VI to the contrary, if a Participant is invested in
the Common Stock Fund under any account hereunder and thus
is invested in, and entitled to, one or more whole shares of
Common Stock, the Participant must affirmatively elect to
receive any Plan distribution or withdrawal from such Fund
in shares of Common Stock (that is, to receive such
distribution, or a portion thereof, in whole shares of
Common Stock, in lieu of a distribution or withdrawal in
cash). In any event, distributions or withdrawals in shares
of Common Stock shall be available only as to shares under
the Common Stock Fund and as to the Participant's accounts
that otherwise are vested hereunder.
7. Section 7.08 is hereby added to the Plan, to read
as follows:
7.08 Investment Elections after January 1, 1998
Effective as of January 1, 1998, and
notwithstanding any above provision of this Article VII or
other provision of the Plan to the contrary, the
Participant's investment elections under the Plan may be
made in five percent (5%) increments among the Investment
Funds then selected by the Investment Fiduciary and
maintained under the Trust Fund or the Plan, including the
HRH Common Stock Fund.
Further, subject to specific rules and procedures
established by the Administrator or under each Investment
Fund, each Participant shall have the right to change their
investment direction election on a daily basis, as often as
such Participant shall determine, through the use of such
interactive voice response systems, other telephonic
systems, plan service center systems, intranet systems,
internet systems or other plan administrative systems such
as are established and maintained by the Administrator from
time to time.
8. Section 7.09 is hereby added to the Plan, to read
as follows:
7.09 Allocations to the Common Stock Fund
(a) The Plan Administrator shall allocate, at
least once per month, and, to the extent applicable, in
accordance with Depart of Labor Regulations setting plan
investment deadlines, the new funds to be allocated to the
Common Stock Fund for the Trustee to purchase Common Stock;
or, the Corporation may contribute and deliver directly to
the Common Stock Fund of the Trust, within the same required
timeframe, the number of full shares, with such fractional
interest in any share in cash, calculated to the fourth
decimal place, as represent the new funds then otherwise to
be allocated to the Common Stock Fund. The allocation of
shares shall be credited under the Common Stock Fund
accounts based on the actual cost to the Trust of the shares
purchased for the Common Stock Fund accounts due to new
funds on the actual date of such purchase and allocation.
Otherwise, to the extent shares are contributed and
delivered to the Trust directly by the Corporation for a
particular allocation date, the price/cost of such shares,
for Plan and allocation purposes, shall be the closing price
on the New York Stock Exchange on such date; or, if the New
York Stock Exchange is closed on such allocation date, the
closing price on the last preceding trading date.
(b) The Trustee shall not be liable for interest
on any portion of the Fund maintained in cash, but the
Trustee may, but is not required to, invest such cash, if
any, in savings accounts, savings certificates, certificates
of deposit, commercial paper or other interest-bearing
investment which is readily convertible into cash pending
investment in Common Stock. Although the Trustee shall
maintain a record of any such short-term investments, the
Plan Administrator shall treat such amounts as cash and
shall allocate as of each Valuation Date, and credit in the
current Plan Year to the sub-accounts of the Participants,
any income derived from such investments on the basis of the
ratio of the cash balance in each such Participant's sub-
accounts as of such preceding Valuation Date.
9. Section 7.10 is hereby added to the Plan, to read
as follows:
7.10 Acquisition of Commons Stock
Purchases of shares of Common Stock shall be made
by the Trustee from time to time, at the lowest price
obtainable at the date and time of purchase, out of the
funds held by the Trust and earmarked for such purchases
under the Plan. If the Company wishes to sell the Trust
such shares, out of authorized and unissued shares of Common
Stock, the price of such purchase on a particular date shall
be the closing price on the New York Stock Exchange on such
date; or, if the New York Stock Exchange is closed on such
allocation date, the closing price on the last preceding
trading date. Otherwise, subject to the above provisions,
the Trustee may, but is not required to, purchase such
shares by private purchase, in such amounts and at such
times as the Trustee may determine appropriate in its
absolute and unrestricted discretion.
The Trustee, upon direction by the Plan Administrator
and subject to the provisions of Article III, shall hold for
the purpose of allocation to the Accounts of Participants
any shares of Common Stock forfeited under the provisions of
the Plan. All shares of Common Stock purchased by the
Trustee shall be carried in the accounts of the Trustee at
the actual cost thereof, including taxes, commissions and
other expenses, if any, incident to the purchase, except
that shares of Common Stock acquired upon the exercise of
rights, options or warrants shall be carried at the Current
Market Value thereof on the date of such exercise. Shares
of Common Stock that are forfeited by Participants shall be
deemed to have been purchased by the Trustee on the Daily
Valuation Date coinciding with the date of such forfeiture
and reallocation at the Current Market Value on such Daily
Valuation Date.
10. Section 7.11 is hereby added to the Plan, to read
as follows:
7.11 Registration of Common Stock
All shares of Common Stock purchased by the
Trustee under the Plan shall be issued either in the nominee
name or in the name of the "Trustee for the Hilb, Rogal and
Hamilton Company Profit Sharing Savings Plan Trust", and the
books and records of the Trustee shall at all times show
that such investments are part of the Trust Fund. Legal
title to all shares of Common Stock allocated to
Participants' Accounts shall remain in the name of the
Trustee until the Participants shall become entitled thereto
as otherwise set forth in the Plan. The Trustee, at its
election, may actually deal in and account, for the Trust as
a whole, in whole shares only; however, this shall not
prohibit the Plan Administrator from crediting to
Participants' accounts fractional shares for all Plan
accounting purposes.
11. Section 7.12 is hereby added to the Plan, to read
as follows:
7.12 Repurchase of Common Stock
At or after the date any shares of Common Stock
are received by a Participant or his Beneficiary, such
person or persons may offer to sell to the Trustee all or
any part of the shares of Common Stock so distributed. If
such offer is made within six (6) months after such date,
then, to the extent funds are available for investment by
the Trustee, the Trustee is permitted, but is not required
to, purchase any shares of Common Stock so offered, at the
Current Market Value on the date such offer is received in
writing by the Trustee.
12. Section 7.13 is hereby added to the Plan, to read
as follows:
7.13 Warrants, Rights and Options
A Participant shall have no right to request,
direct or demand the Trustee to exercise, on the
Participant's behalf, any rights, warrants or options issued
with respect to Common Stock credited to the Participant's
accounts; and, the Trustee, in its discretion, may exercise
or sell any such rights, warrants or options, except any
rights which by their terms cannot be separated from such
Common Stock. In the event such warrants, rights or options
are sold, the accounts of each Participant of the Plan
otherwise invested in the Common Stock Fund shall be
credited with the appropriate proportionate share of the
proceeds. In the event such warrants, rights or options are
exercised by the Trustee, each Participant's accounts
invested in the Common Stock Fund shall be credited with the
appropriate number of such shares thereby acquired, based on
the shares credited to the Participant's accounts with
respect to which such warrants, rights and options were
issued.
13. Section 7.14 is hereby added to the Plan, to read
as follows:
7.14 Common Stock Dividends and Common Stock Splits
Except as otherwise specifically administered
under any plan suspense account, Common Stock received by
the Trustee by reason of a stock dividend or stock split
shall be credited within the current Plan Year to each
Participant's accounts invested in the Common Stock Fund,
based on the shares credited to the Participant's accounts
as of the Daily Valuation Date preceding the date such
dividend or split is declared.
14. Section 7.15 is hereby added to the Plan, to read
as follows:
7.15 Investment of Dividend Income
Dividends on Common Stock collected by the
Trustee, and earnings on any temporary investment of cash
earmarked for investment in Common Stock, shall be held and
invested in Common Stock in accordance with Section 7.09.
Common Stock received by the Trustee by reasons of a
stock dividend or stock split shall be credited to each
Participant's Account based on the shares credited to his
account as of the Daily Valuation Date preceding the date
such dividend or split is declared. Cash dividends on
Common Stock, and earnings on any temporary investments of
cash earmarked for investment in Common Stock, shall be
invested in Common Stock, except as otherwise provided under
Article VII.
15. Section 7.16 is hereby added to the Plan, to read
as follows:
7.16 Voting of Common Stock
Before each annual or special meeting of the
shareholders of the Corporation, the Corporation and the
Plan Administrator, in conjunction with the Trustee, shall
furnish each Participant, who invests in the Common Stock
Fund under his accounts, with a copy of the proxy
solicitation material for such meeting, together with a form
addressed to the Trustee requesting the Participant's
confidential instructions on how the aggregate whole shares
credited to such Participant under the Common Stock Fund,
determined as of the Daily Valuation Date most recently
preceding the record date for which exact Account Balances
are readily available, should be voted.
Upon receipt of valid instructions, the Trustee shall
vote such Common Stock as instructed, or not vote such
Common Stock if so directed by the Participant. Any shares
of Common Stock held by the Trustee in suspense, or as to
which the Trustee receives no valid voting instructions,
shall be voted by the Trustee in the same proportion as the
Trustee has received directions from the Participants,
unless the Trustee is directed otherwise by the Investment
Fiduciary or unless the Trustee otherwise determines that
voting such shares on such a "mirror" proportional basis, or
in accordance with the Investment Fiduciary's directions, is
clearly imprudent. In such event, the Trustee shall
determine how such shares shall be voted.
16. Section 7.17 is hereby added to the Plan, to read
as follows:
7.17 Tendering of Common Stock by Trustee
In the event of any tender offer for any shares of
Common Stock, the Corporation and the Plan Administrator, in
conjunction with the Trustee, shall furnish each Participant
with a form for the Participant's direction to the Trustee
as to whether any of the aggregate whole shares credited to
his accounts should be tendered. Upon receipt of such
direction from each Participant, the Trustee shall tender or
not tender such shares, as designated in such direction.
The Trustee shall tender only such Participant shares for
which the Trustee has received valid and timely instructions
to tender.
If within a reasonable time the Trustee does not
receive a valid direction with respect to any Participant's
shares under the Plan, or otherwise holds any shares in
suspense accounts, the Trustee shall tender or not tender
such shares in proportion to the Participant directions to
tender and not tender, or otherwise in accordance with
specific directions of the Investment Fiduciary. If,
however, the Trustee otherwise determines that tendering
such shares on a proportional basis, or in accordance with
any Investment Fiduciary direction, is clearly imprudent,
then the Trustee shall tender or not tender such shares as
the Trustee otherwise deems prudent. In connection with
these decisions, the Trustee shall consider the financial
interests of the Participants and Beneficiaries with respect
to the Common Stock Fund.
Otherwise, all tender instructions received by the
Trustee from a Participant shall be held in confidence by
the Trustee and shall not be divulged or released to any
person, including directors, officers and employees of the
Corporation, any affiliated company or any person making the
offer.
17. Section 7.18 is hereby added to the Plan, to read
as follows:
7.18 Restriction on Amendment of Contribution and
Allocation Provisions
Notwithstanding any provision of Article VII or
other provision of the Plan to the contrary, the Corporation
shall not amend the provisions of the Plan controlling the
provision and allocation of contributions made or invested
in the Common Stock of the Corporation more than once every
six (6) months, or as otherwise required under the current
restrictions of the Securities and Exchange Commission,
other than for amendments necessary to comport with changes
in Internal Revenue Code, Internal Revenue Service, ERISA or
Department of Labor requirements.
18. Section 7.19 is hereby added to the Plan, to read
as follows:
7.19 Amendments Necessary to Comply with Section 16 or
other Securities Law Requirements
Notwithstanding any provision herein to the
contrary, the Corporation, with or without consultation with
the Plan Administrator, shall retain the unrestricted right
to amend the provisions of the Plan as necessary to comply
with the current provisions of Section 16 of the Securities
Exchange Act of 1934, as amended, and any other applicable
securities laws, regulations and interpretations.
19. Section 7.20 is hereby added to the Plan, to read
as follows:
7.20 Administration Necessary to Comply with Section 16
or other Securities Law Requirements
The Plan Administrator shall have the unrestricted
operational discretion and authority to impose such
additional Plan rules, restrictions and limitations on those
Participants subject to Section 16 of the Securities
Exchange Act of 1934 or any other applicable securities
laws, regulations and interpretations, as it shall deem
necessary or advisable to comply with the provisions of Rule
16(b)-3 or such other securities laws, regulations and
interpretations.
20. No other provisions of the Plan are hereby
amended.
398520
HRH FROZEN MERGER AND
ACQUISITION PLAN
Amended and Restated
January 1, 1989
INTRODUCTION
Effective May 1, 1985, Jones & Hill Insurance, then a Georgia
general partnership, established a profit sharing plan and trust
(the "Prior Plan"). On May 1, 1986, Jones & Hill Insurance was
incorporated as Jones, Hill & Mercer, Inc., and the Prior Plan
was restated to reflect the change in the business organization
and to make other revisions to the Prior Plan to reflect then
applicable legal requirements. Effective May 1, 1987, the Prior
Plan was restated to the form constituted by the Jones, Hill &
Mercer, Inc. Section 401(k) Profit Sharing Plan and Trust (the
"JHM Plan") to reflect the requirements of the Tax Reform Act of
1986, and all other requirements then in effect under the
Employee Retirement Income Security Act of 1974 ("ERISA") and the
Internal Revenue Code of 1986, as amended ("IRC").
Effective November 1, 1988, Jones, Hill & Mercer, Inc., was
acquired by Hilb, Rogal and Hamilton Company. As a result of the
acquisition, the name of Jones, Hill & Mercer, Inc., was changed
to Hilb, Rogal and Hamilton Company
of Savannah, Inc., doing business as Jones, Hill & Mercer
Insurance
Services, Inc. As a result of final and proposed regulations
under IRC Section 401(k) and passage of the Technical and
Miscellaneous Revenue Act of 1988 ("TAMRA"), which precluded the
termination of the JHM Plan by Jones, Hill & Mercer, Inc., prior
to the date of acquisition, as well as the lack of regulations
under IRC Section 401(a)(26), the JHM Plan was frozen effective
as of December 31, 1988, in order to make a future decision on
the disposition of the JHM Plan based on applicable governmental
rules. Benefits on retirement, death, disability and termination
of employment occurring on and after January 1, 1989, would
continue to be paid pursuant to the provisions of the JHM Plan as
in effect on December 31, 1988.
Effective as of January 1, 1989, eligible employees of Hilb,
Rogal and Hamilton Company of Savannah, Inc., doing business as
Jones, Hill & Mercer Insurance Services, Inc., became
participants of the Hilb, Rogal and Hamilton Company Profit
Sharing Savings Plan.
Pursuant to the proposed regulations issued under IRC Section
401(a)(26), it was decided to maintain a frozen defined
contribution plan in order to hold assets of the JHM Plan as well
as assets of other plans of companies acquired on and after
January 1, 1989, which cannot be terminated prior to the date of
acquisition due to the restrictions of IRC Section 401(k) and the
regulations issued thereunder or assets of any other qualified
defined contribution plan which is not terminated prior to the
date of acquisition by mutual agreement in accordance with the
purchase agreement and which is merged into the frozen plan. The
frozen plan is intended to protect normal and optional payment
forms and provide other required benefit protections for
employees of each affected company acquired by Hilb, Rogal and
Hamilton Company.
In order to establish the frozen plan, effective as of
January 1, 1989, the JHM Plan is amended and restated in its
entirety as the HRH Frozen Merger and Acquisition Plan. Benefits
for participants of the JHM Plan as in effect on December 31,
1988, will be paid in accordance with the provisions of the JHM
Plan as in effect on December 31, 1988. Plans of companies
acquired on and after January 1, 1989, which cannot be terminated
pursuant to governmental rules or any other qualified defined
contribution plan which is not terminated prior to an acquisition
by mutual agreement in accordance with to the provisions of the
purchase agreement, may be merged into the HRH Frozen Merger and
Acquisition Plan. Separate Participation Agreements will be
applicable for each such merger which shall provide for
protection of retirement dates, normal and optional payment forms
as well as any other provisions specifically applicable to each
such company pursuant to the provisions of such plan as in effect
on the date the plan is merged into the HRH Frozen Merger and
Acquisition Plan.
As of November 1, 1989, Hilb, Rogal and Hamilton Company
acquired McEldowney, McWilliams, Deardeuff, & Journey, Inc.,
which maintained the McEldowney, McWilliams, Deardeuff, &
Journey, Inc. Savings and Investment 401(K) Plan (the "MMDJ
Plan") through the adoption of the Fidelity and Guaranty Life
Insurance Company Combination Profit Sharing-Money Purchase Plan
and Trust and the Fidelity and Guaranty Life Insurance Company
Cash or Deferred Arrangement Amendment through the Adoption
Agreement for Fidelity and Guaranty Life Insurance Company
Standardized Profit Sharing Plan and Trust and the Fidelity and
Guaranty Life Insurance Company CODA Adoption Agreement
Amendment. As a result of the acquisition, the name of
McEldowney, McWilliams, Deardeuff, & Journey, Inc., was changed
to Hilb, Rogal and Hamilton Company of Oklahoma, Inc., doing
business as McEldowney, McWilliams, Deardeuff, & Journey, Inc.
The MMDJ Plan was amended and restated effective as of April 1,
1989, in order to comply with the Tax Reform Act of 1986, TAMRA
and other rulings and regulations, the plan year was changed to
facilitate the merger of the plan and the MMDJ Plan was further
frozen effective as of December 31, 1989. Effective as of
December 31, 1989, the MMDJ Plan was merged into the HRH Frozen
Merger and Acquisition Plan. Benefits on retirement, disability,
death and termination of employment shall continue to be paid
pursuant to the provisions of the MMDJ Plan as in effect on
December 31, 1989, in accordance with the HRH Frozen Merger and
Acquisition Plan and the related Participation Agreement
applicable to such participants. Effective as of January 1,
1990, eligible employees of Hilb, Rogal and Hamilton Company of
Oklahoma, Inc., doing business as McEldowney, McWilliams,
Deardeuff, & Journey, Inc., became participants to the Hilb,
Rogal and Hamilton Company Profit Sharing Savings Plan.
The purpose of this Plan, which shall be qualified under
government rules applicable to profit sharing plans, is to
provide benefits for participants of acquired companies whose
qualified defined contribution plan cannot be terminated or which
is not terminated prior to the date of acquisition by mutual
agreement in accordance with the provisions of the purchase
agreement and provide appropriate protection of normal and
optional forms of payment as well as other provisions which must
be protected for participants of the JHM Plan or any Prior Plan
under applicable governmental rules and regulations.
Assets previously held pursuant to the provisions of the JHM
Plan and MMDJ Plan will be transferred to the Trust established
pursuant to the provisions of the HRH Frozen Merger and
Acquisition Plan.
It is intended that the HRH Frozen Merger and Acquisition
Plan, together with the Trust Agreement, meet all the applicable
requirements of the Internal Revenue Code of 1986 ("IRC"), as
amended, and the Plan shall be interpreted, wherever possible, to
comply with the terms of the IRC and all formal regulations and
rulings issued under the IRC and amendments thereto.
Effective January 1, 1989, the HRH Frozen Merger and
Acquisition Plan has the terms and provisions hereinafter set
forth subject to the applicable Participation Agreements.
ARTICLE II
DEFINITIONS
As used herein and in the concomitant Trust Agreement, unless
otherwise required by the context, the following words and
phrases shall have the meanings indicated:
1.01 Adjustment means the net increases and
decreases in the market value of the Fund during a Plan
Year or other period. Such increases and decreases shall
include such items as realized or unrealized investment
gains and losses, investment income, and may include
expenses of administering the Fund and the Plan.
1.02 Affiliate means an organization which is a
member of the same controlled group of organizations as
the Employer as defined in IRC Sections 414(b), (c), (m),
and (o), but which is not an Employer.
1.03 After-Tax Account means the portion of
the Individual Account which shall hold any after-tax
contributions which received a matching contribution
pursuant to the provisions of the JHM Plan or any Prior
Plan as in effect on the date such Prior Plan is merged
into this Plan inclusive of the earnings on such
contributions received through the date the balance in
such account is transferred to this Plan and the
Participant's proportionate share of the Adjustment
attributable to his After-Tax Account.
1.04 Annual Additions means for any
Employee in any Limitation Year, the sum of (a)
contributions made by the Employer (including any excess
pre-tax contributions returned to a participant or any
matching contributions which may be returned, (b)
contributions made by the Employee, (c) forfeitures, (d)
amounts allocated after March 31, 1984 to an individual
medical account, as defined in IRC Section 415(1)(2),
which is part of a pension or annuity plan maintained by
the Employer and (e) amounts derived from contributions
paid or accrued in taxable years after December 31, 1985,
which are attributable to post-retirement medical benefits
allocated to the separate account of a Key Employee under
a welfare benefit fund, as defined in IRC Section 419(e),
maintained by the Employer.
1.05 Basic Account means the portion of the
Individual Account which shall hold any employer
contribution made to all participants without regard to
whether any after-tax or pre-tax contributions were made
by or on behalf of a participant pursuant to the
provisions of the JHM Plan or any Prior Plan as in effect
on the date such Prior Plan is merged into this Plan
inclusive of the earnings on such contributions received
through the date the balance in such account is
transferred to this Plan and the Participant's
proportionate share of the Adjustment attributable to his
Basic Account.
1.06 Beneficiary means any person designated
by a Participant or otherwise entitled to receive such
benefits as may become payable hereunder after the death
of such Participant.
Each Participant shall designate a Beneficiary on forms
furnished by the Plan Administrator, and such forms shall
be maintained in files held by the Plan Administrator. A
Participant from time to time may change his Beneficiary
by written notice to the Plan Administrator, and upon such
change, the rights of all previously designated
Beneficiaries to receive any benefits under this Plan
shall cease.
If, at the date of death of the Participant, there is
no valid and current Beneficiary designation on file with
the Plan Administrator, then any death benefits which
would have been payable to the Beneficiary shall be
payable to the Participant's spouse, if any; if none,
equally to the Participant's surviving children, if any;
or, if none, then to the Participant's estate. The
interpretation of the Plan Administrator with respect to
any Beneficiary designation, subject to applicable law,
shall be binding and conclusive upon all parties, and no
person who claims to be a Beneficiary, or any other
person, shall have any right to question any action of the
Plan Administrator, which in the judgment of the Plan
Administrator fulfills the intent of the Participant who
filed such designation.
If a Beneficiary designated by a Participant is not the
Participant's spouse, then the spouse's written consent
shall be required for the designation of the alternate
Beneficiary to become effective and such consent must be
limited to a benefit for a specific alternate Beneficiary
or form of benefits and acknowledge the effect of the
consent. Such consent shall be witnessed by the Plan
Administrator, a representative of the Plan Administrator
or a notary public. Any change in the designation of an
alternate Beneficiary shall also require the written
consent of the spouse for such change to become effective.
The Plan Administrator may accept an election other than
that provided hereunder without the consent of the spouse
if there is no spouse, the spouse cannot be located, or
such other circumstances exist as may be prescribed by
regulations. Any spousal consent shall be applicable only
to the spouse granting such consent and shall only apply
to the Beneficiary with respect to which such consent was
granted.
1.07 Board means the board of directors of the
Corporation.
1.08 Contract means an immediate participation
group annuity contract or contracts or any other type of
annuity contract or contracts issued by an Insurance
Company to provide any benefits under the Plan or of any
Prior Plan or to effect the purposes of the Plan.
1.09 Corporation means Hilb, Rogal and
Hamilton Company, a Virginia corporation, or any successor
thereto. The Corporation is the sponsor, named Fiduciary
and administrator of the Plan for purposes of ERISA as it
relates to the employees of each Employer.
1.10 Current Balance as of any date, means
the balance of an Employee's Individual Account and
Deductible Account or stipulated portion thereof, as of
the preceding Valuation Date reduced by any distributions
or withdrawals occurring since the preceding Valuation
Date.
1.11 Deductible Account means the
account established which shall hold any voluntary
deductible contributions under IRC Sections 72(o) and 219
which were made pursuant to the provisions of the JHM Plan
or any Prior Plan for periods prior to January 1, 1987,
inclusive of the earnings on such contributions received
through the date the balance in such account is
transferred to this Plan and the Participant's
proportionate share of the Adjustment attributable to his
Deductible Account.
1.12 Defined Benefit Plan means a plan
established and qualified under IRC Section 401 or 403,
except to the extent it is, or is treated as, a Defined
Contribution Plan.
1.13 Defined Contribution Plan means a plan established
and qualified under IRC Section
401 or 403, which provides for an individual account for
each participant therein and for benefits based solely on
the amount contributed to each participant's account and
any income and expenses or gains or losses (both realized
and unrealized) which may be allocated to such accounts.
1.14 Delayed Retirement Date means, unless otherwise
indicated in the Participation
Agreement, the first day of the month coinciding with or
next following the Participant's date of termination of
employment after his Normal Retirement Date.
1.15 Disability Retirement Date means, unless otherwise
indicated in the Participation Agreement, the first
day of the month coinciding with or next following
the time the Participant is determined to
be Totally and Permanently Disabled.
1.16 Discretionary Account means the portion of the
Individual Account which shall hold any
employer discretionary contributions made to participants
pursuant to the provisions of the JHM Plan or any Prior
Plan as in effect on the date such Prior Plan is merged
into this Plan inclusive of the earnings on such
contributions received through the date the balance in
such account is transferred to this Plan and the
Participant's proportionate share of the Adjustment
attributable to his Discretionary Account.
1.17 Early Retirement Date means, unless otherwise
indicated in the Participation Agreement,
the first day of the month coinciding with or next
following the Participant's date of termination of
employment prior to his Normal Retirement Date provided
that the Participant has attained the age of fifty-five
(55).
1.18 Effective Date for this amended and
restated plan means January 1, 1989, or such later date as
of which an Employer becomes a party to the Plan through a
plan merger or otherwise.
1.19 Employee means any person employed by an
Employer who was a participant of the JHM Plan or any
Prior Plan maintained by his Employer immediately prior to
the date of acquisition by the Corporation or any person
who was a participant in any Prior Plan as of a date that
the Prior Plan is frozen and merged into this Plan.
1.20 Employer means, collectively or individually as
the context may indicate, any organization acquired by the
Corporation which (a) is a member of the same controlled
group of organizations as the Corporation [as defined in
IRC Sections 414(b), 414(c), 414(m) and 414(o)] and (b)
has been authorized by the Board to participate in the
Plan through a plan merger or otherwise and becomes a
party to the Plan and Trust Agreement and/or any Contract,
or any successor to one or more of such entities.
1.21 ERISA means the Employee Retirement Income
Security Act of 1974, as amended.
1.22 Fiduciary means the Corporation, Employer,
Trustee, Plan Administrator and any individual,
corporation, firm or other entity which assumes, in
accordance with Article VIII, responsibilities of the
Corporation, Employer, Trustee, or Plan Administrator
respecting management of the Plan or the disposition of
its assets.
1.23 Fund means the trust fund created in accordance
with Article VII, or any fund held by an Insurance Company
under the terms of a Contract or Contracts from which
benefits are provided pursuant to his Plan.
1.24 Highly Compensated Employee means:
1.24(a) Any employee who during the Plan Year or preceding
twelve (12) month period meets one of the
following criteria --
(i)was at any time a Five Percent (5%) Owner of
the Employer or Affiliate;
(ii)received Maximum Compensation from the
Employer or Affiliate in excess of
seventy-five thousand dollars ($75,000) (or
such larger amount as may be determined by
the Secretary of Treasury);
(iii)received Maximum Compensation from the
Employer or Affiliate in excess of fifty
thousand dollars ($50,000) (or such larger
amount as may be determined by the Secretary
of Treasury) and was in the top-paid group
consisting of the top twenty percent (20%)
of the employees (considering all employees
of the Employer or Affiliate) when ranked on
the basis of Maximum Compensation during
such Plan Year; or
(iv) was at any time an officer and
received Maximum Compensation greater than
fifty percent (50%) of the amount in effect
under IRC Section 415(b)(1)(A) for such Plan
Year. If, for any Plan Year, no officer of
the Employer or Affiliate is identified
pursuant to this Section, the highest paid
employee of the Employer or Affiliate for
such Plan Year shall be treated as a Highly
Compensated Employee hereunder. No more
than fifty (50) employees - or if lesser,
the greater of three (3) employees or ten
percent (10%) of the employees, shall be
treated as officers.
An employee shall be considered a Highly
Compensated Employee for purposes of Section
1.24(a)(i) if he was a Five Percent (5%) Owner of
the Employer or Affiliate in the Plan Year of
determination or the preceding Plan Year. An
employee shall not be considered a Highly
Compensated Employee for purposes of Sections
1.24(a)(ii), 1.24(a)(iii) and 1.24(a)(iv) if he
was a Highly Compensated Employee in the current
Plan Year but was not a Highly Compensated
Employee in the preceding Plan Year unless such
employee is a member of the group consisting of
the one hundred (100) employees paid the greatest
Maximum Compensation by the Employer or an
Affiliate during the Plan Year for which such
determination is being made.
If an employee is a Family Member of another
employee who is (i) a Five Percent (5%) Owner of
the Employer or Affiliate, or (ii) one (1) of the
top ten (10) highest paid employees of the
Employer or Affiliate in the current or preceding
Plan Year, the Maximum Compensation paid to and
contributions made on behalf of such Family Member
shall be deemed to have been made on behalf of
such employee. In calculating the Maximum
Compensation paid to such Family Member, the
Maximum Compensation of the Employee, the
Employee's spouse and any lineal descendants under
the age of nineteen (19) shall be limited to two
hundred thousand dollars ($200,000), as adjusted
by the Secretary of Treasury.
For Plan Years beginning or after January 1,
1994, Maximum Compensation shall not exceed one
hundred fifty thousand dollars ($150,000), as
adjusted by the Secretary for increases in the
cost of living in accordance with IRC Section
401(a)(17)(B) and for Plan Years beginning after
December 31, 1983, such adjustment for inflation
after 1994 by the Secretary shall be done at the
same time and in the same manner as under IRC
Section 415(d), except that the base period for
purposes of IRC Section 415(d)(1)(A) shall be the
calendar quarter beginning after October 1, 1993.
The cost of living adjustment in effect for a
calendar year applies to any period, not exceeding
twelve (12) months, over which Maximum
Compensation is determined beginning in such
calendar year. If a period consists of fewer than
twelve (12) months, then the limit shall be
multiplied by a fraction, the numerator of which
is the number of months in the short period and
the denominator of which is twelve (12). If
Maximum Compensation for any prior period is taken
into account in determining benefits under the
Plan in the current Plan Year, the Maximum
Compensation for that period shall be subject to
the one hundred fifty thousand dollar ($150,000)
limit.
Any former employee shall be treated as a
Highly Compensated Employee if such employee was a
Highly Compensated Employee (i) when he terminated
employment, or (ii) in any year following
attainment of age fifty-five (55). In addition,
an employee who works only a de minimis amount of
service may be considered a Highly Compensated
Employee.
1.24(b) The following employees shall be excluded for
purposes of determining who is in the top-paid
group under Section 1.24(a)(iii):
(i)employees who have not completed six (6)
months of service;
(ii)employees who normally work less than
seventeen and one-half (17 1/2) hours per
week;
(iii)employees who normally work not more than
six (6) months during any year;
(iv)employees who have not attained age
twenty-one (21);
(v)except to the extent provided in
regulations, employees who are included in a
collective bargaining agreement between
employee representatives and an Employer or
Affiliate; and
(vi)employees who are nonresident aliens and who
receive no earned income [within the meaning
of IRC Section 911(d)(2)] from an Employer
or Affiliate which constitutes income from
sources within the United States [within the
meaning of IRC Section 861(a)(3)].
1.24(c) For purposes of this Section 1.24, the following
definitions shall apply:
(i)The term "Family Member" as used herein
shall mean with respect to any employee,
such employee's spouse and lineal ascendants
or descendants and the spouses of such
lineal ascendants or descendants.
(ii)The term "Five Percent (5%) Owner" shall
have the same meaning as is specified in IRC
Section 416(i).
1.24(d) The determination of Maximum Compensation for
purposes of determining who is a Highly
Compensated Employee shall be made without regard
to IRC Sections 125, 402(a)(8), and 402(h)(1)(B),
and in the case of contributions by the Employer
made pursuant to a salary reduction agreement,
without regard to IRC Section 403(b).
1.25 Individual Account means the detailed record kept
of the amounts credited or charged to each individual
in accordance with the terms hereof. Such
Individual Account is hereby established and is comprised
of an After-Tax Account, a Basic Account, a Pre-Tax
Account, a Matching Account, a Discretionary Account, a
Voluntary Account and a Rollover Account as may be
applicable to a Participant in accordance with the
applicable Participation Agreement.
1.26 Insurance Company means any life
insurance company licensed to do business in the
Commonwealth of Virginia with which the Employer has
entered into a Contract for the purposes of providing
benefits of the Plan or to invest contributions previously
made to a plan maintained by an Employer prior to its date
of acquisition.
1.27 Investment Fund means an Investment
Fund as described in Article VII.
1.28 IRC means the Internal Revenue Code of 1986, as
amended. Any reference to any section of the IRC shall be
deemed to include any applicable regulations and rulings
pertaining to such section and also shall be deemed a
reference to comparable provisions of future laws.
1.29 JHM Plan means the Jones, Hill & Mercer, Inc.
Section 401(k) Profit Sharing Plan and Trust as in effect
on December 31, 1988.
1.30 Limitation Year means the twelve (12)
month period commencing on January 1 and ending on
December 31.
1.31 Matching Account means the portion of
the Individual Account which shall hold any matching
contribution made to participants based on their pre-tax
and/or after-tax contributions pursuant to the provisions
of the JHM Plan or any Prior Plan as in effect on the date
such Prior Plan is merged into this Plan inclusive of the
earnings on such contributions received through the date
the balance in such account is transferred to this Plan
and the Participant's proportionate share of the
Adjustment attributable to his Matching Account.
1.32 Maximum Compensation means a
Participant's earned income, wages, salaries, fees for
professional services and other amounts received for
personal services actually rendered in the course of
employment with an Employer maintaining the Plan
(including, but not limited to, commissions paid salesmen,
compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses,
fringe benefits, reimbursements and expense allowances)
and excluding the following:
1.32(a) Employer contributions to a plan of deferred
compensation to the extent contributions are not
included in the gross income of the Employee for
the taxable year in which contributed, or on
behalf of an Employee to a simplified employee
pension plan to the extent such contributions are
deductible under IRC Section 404(h), and any
distributions from a plan of deferred compensation
whether or not includable in the gross income of
the Employee when distributed.
1.32(b) Amounts realized from the exercise of a
non-qualified stock option, or when restricted
stock (or property) held by an Employee becomes
freely transferable or is no longer subject to a
substantial risk of forfeiture;
1.32(c) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified
stock option; and
1.32(d) Other amounts which receive special tax benefits,
or contributions made by an Employer (whether or
not under a salary reduction agreement) towards
the purchase of an IRC Section 403(b) annuity
contract (whether or not the contributions are
excludable from the gross income of the Employee).
Maximum Compensation for any Limitation Year is the
compensation actually paid or includable in gross income
during such year. For Limitation Years commencing on or
after January 1, 1989, Maximum Compensation shall be
limited to two hundred thousand dollars ($200,000) or such
larger amount as may be determined by the Secretary of the
Treasury pursuant to IRC Section 401(a)(17).
For Plan Years beginning or after January 1, 1994,
Maximum Compensation shall not exceed one hundred fifty
thousand dollars ($150,000), as adjusted by the Secretary
for increases in the cost of living in accordance with IRC
Section 401(a)(17)(B) and for Plan Years beginning after
December 31, 1993, such adjustment for inflation after
1994 by the Secretary shall be done at the same time and
in the same manner as under IRC Section 415(d), except
that the base period for purposes of IRC Section 415
(d)(1)(A) shall be the calendar quarter beginning after
October 1, 1993.. The cost of living adjustment in effect
for a calendar year applies to any period, not exceeding
twelve (12) months, over which Maximum Compensation is
determined beginning in such calendar. If a period
consists of fewer than twelve (12) months, then the limit
shall be multiplied by a fraction, the numerator of which
is the number of months in the short period and the
denominator of which is twelve (12). If Maximum
Compensation for any prior period is taken into account in
determining benefits under the Plan in the current Plan
Year, the Compensation for that period shall be subject to
the one hundred fifty thousand ($150,000) dollar limit, as
adjusted.
Maximum Compensation for purposes of determining who is
a Key Employee shall include Section 1.32(a) and 1.32(d).
This definition shall be interpreted consistent with
IRC Section 415. Further, such law and regulations shall
be controlling in all determinations under this
definition, inclusive of any provisions and requirements
stated thereunder but hereinabove absent.
1.33 Non-Highly Compensated Employee means any Employee who is not a Highly
Compensated Employee.
1.34 Normal Retirement Age means, unless otherwise indicated in the
Participation Agreement, age sixty-five (65).
1.35 Normal Retirement Date means, unless otherwise indicated
in the Participation Agreement, the first day of the month
coinciding with or next following the Participant's
Normal Retirement Age.
1.36 Participant means any Employee who
becomes a Participant as provided in Article II.
1.37 Participation Agreement means one or more agreements
which are attached to and made a part of this Plan which
recognize the merger of any Prior Plan into this Plan and
which set forth eligibility, protected benefits and
payment forms applicable under the provisions of the
JHM Plan or any Prior Plan.
1.38 Plan means the HRH Frozen Merger and Acquisition
Plan, as contained herein or as amended.
1.39 Plan Administrator means the
administrator of the Plan provided for in Article VIII.
If a Plan Administrator has not been appointed hereunder,
or resigns from a prior appointment, the Corporation shall
be deemed to be the Plan Administrator.
1.40 Plan Year means each twelve (12) month period
beginning on January 1 and ending on December 31.
1.41 Pre-Tax Account means the portion of
the Individual Account which shall hold any pre-tax
contributions made on behalf of a participant pursuant to
the provisions of the JHM Plan or any Prior Plan as in
effect on the date such Prior Plan is merged into this
Plan inclusive of the earnings on such contributions
received through the date the balance of such account is
transferred to this Plan and the Participant's
proportionate share of the Adjustment attributable to his
Pre-Tax Account.
1.42 Prior Plan means any qualified defined
contribution plan maintained by an Employer acquired by
the Corporation which cannot be terminated or which by
mutual agreement between the Employer and the Corporation
is not terminated prior to the date of acquisition in
accordance with the purchase agreement and which is merged
into this Plan.
1.43 Rollover Account means the portion of
the Individual Account which shall hold any rollover
contributions made by an employee or participant pursuant
to the provisions of the JHM Plan or any Prior Plan as in
effect on the date such Prior Plan is merged into this
Plan inclusive of the earnings on such contributions
received through the date the balance of such account is
transferred to this Plan and the Participant's
proportionate share of the Adjustment attributable to his
Rollover Account.
1.44 Total and Permanent Disability or Totally and Permanently
Disabled means, unless otherwise indicated in
the Participation Agreement, the incapacity of a
Participant by reason of bodily injury or physical or
mental disease which prevents the Participant from
performing his customary or other duties with the Employer
and will continue to prevent the Participant from
performing his customary or other duties for the remainder
of his lifetime. Total and Permanent Disability shall be
determined by the Plan Administrator in accordance with
uniform principles consistently applied, based upon
medical evidence by a licensed physician designated by the
Plan Administrator.
1.45 Trust Agreement means the agreement
entered into between the Employer and the Trustee pursuant
to Article VII.
1.46 Trustee means such individual, individuals or
financial institution, or a combination of them as shall
be designated in the Trust Agreement to hold in trust any
assets of the Plan for the purpose of providing benefits
under the Plan, and shall include any successor trustee to
the trustee initially designated thereunder.
1.47 Valuation Date means each June 30 and
December 31 subsequent to the Effective Date, as of which
date the Fund shall be valued at fair market value. The
Plan Administrator may, from time to time, value the Fund
as of any other date it deems desirable.
1.48 Voluntary Account means the portion of
the Individual Account which shall hold any voluntary
after-tax contributions made by a participant pursuant to
the provisions of the JHM Plan or any Prior Plan as in
effect on the date such Prior Plan is merged into this
Plan inclusive of the earnings on such contributions
received through the date the balance of such account is
transferred to this Plan and the Participant's
proportionate share of the Adjustment attributable to this
Voluntary Account.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.01 Eligibility - Each person who was a
participant of the JHM Plan as in effect on December 31,
1988, shall continue as a Participant after such date.
Commencing on and after January 1, 1989, each person
who participates in any Prior Plan shall automatically
become a Participant of this Plan as of the date the Prior
Plan is merged into this Plan in accordance with the
provisions of the Participation Agreement.
Exhibit A which is attached to the Plan lists each
participating Employer and the date their participation
became effective.
2.02 Participation - Each Employee shall
become a Participant of this Plan as of the date he
becomes eligible and shall continue as a Participant as
long as he is an Employee who is entitled to future
benefits under the terms of the Plan.
ARTICLE III
CONTRIBUTIONS AND ALLOCATIONSAND ALLOCATIONS
3.01 Contributions - Effective for periods
commencing on and after January 1, 1989, no contributions
to the Plan shall be made by any Participant, Employee or
any Employer.
3.02 Allocation of Adjustment - Except as otherwise
provided in this Section 3.02, the
Plan Administrator shall determine the Adjustment of the
Fund for the period elapsed since the last preceding
Valuation Date by adding together all income received and
accrued, realized and unrealized profits, and deducting
therefrom all taxes, charges or expenses and any realized
or unrealized losses which may have been sustained. The
Adjustment shall be allocated as of the Valuation Date as
hereinafter provided to Individual Accounts and Deductible
Accounts in which a credit balance is maintained in
relation to that portion of the Individual Account
attributable to the Pre-Tax Account, After-Tax Account,
Matching Account, Discretionary Account, Basic Account,
Voluntary Account, and Rollover Account and the Deductible
Account. In determining whether a credit balance is
present, the Plan Administrator shall first determine the
value of each Individual Account and Deductible Account as
of the prior Valuation Date; from this amount any
withdrawals and distributions shall be subtracted.
The allocation shall be made separately within the
Investment Funds on the basis of the ratio of the credit
balance of each such Individual Account and Deductible
Account (as adjusted above) invested in the Investment
Fund to the total of the credit balances of all such
Individual Accounts and Deductible Accounts invested in
such Investment Fund at such Valuation Date (as adjusted
above).
The Plan Administrator shall maintain the accounting to
ensure that each allocation is properly credited or
debited to each Pre-Tax Account, After-Tax Account,
Matching Account, Discretionary Account, Voluntary
Account, Rollover Account and Deductible Account.
Notwithstanding anything contained herein to the
contrary, if, as a result of a merger or acquisition, the
Corporation desires to merge a Prior Plan into this Plan
and such Prior Plan has all or a portion of its assets
invested in one or more insurance contracts and the terms
of such Contract or Contracts would make it detrimental to
liquidate such Contract or Contracts, the Plan
Administrator, in his sole discretion, may elect to
maintain such Contract or Contracts until such time as
liquidation would be more appropriate. Any such Contract
or Contracts may be transferred to the Trustee and held as
an asset of the trust in Investment Fund 3 or maintained
separately pursuant to the provisions of the Contract or
Contracts until liquidation is appropriate. Any Contract
or Contracts transferred to Investment Fund 3 or held
separately shall only apply to Participants who at the
time of merger were participants of the applicable Prior
Plan. The allocation of the Adjustment of such
Participants' Individual Accounts and Deductible Accounts
shall be made by the applicable Insurance Company in
accordance with the provisions of the Contract or
Contracts.
Further, in the year in which any funds become
available due to the liquidation of any Contract or
Contracts, such amounts shall be held in a segregated
account in Fund 3 until the December 31 Valuation Date
following the date of liquidation and shall receive an
Adjustment of Fund 3 on a pro-rata basis based on the
actual period of time that such amounts were in the Fund
and not held pursuant to a Contract or Contracts.
Thereafter, such amounts shall share in the Adjustment of
the Fund as hereinbefore provided in this Section 3.02.
3.03 Equitable Allocations - The
Plan Administrator shall establish accounting procedures
for the purpose of making allocations, valuations and
Adjustments to Individual Accounts and Deductible
Accounts. Should the Plan Administrator determine that
the strict application of its accounting procedures will
not result in an equitable and nondiscriminatory
allocation among Individual Accounts and Deductible
Accounts, or other circumstances arise which are not
covered hereunder, it may modify its procedures for the
purpose of achieving an equitable and nondiscriminatory
allocation in accordance with the general concepts of the
Plan and the provisions of this Article.
Further, notwithstanding anything contained herein to
the contrary, in order to administer the Plan in an
equitable and nondiscriminatory manner, the Plan
Administrator may choose an alternate date to value
Individual Accounts and Deductible Accounts for all
purposes including distributions from the Plan, transfers
among Funds within the Plan, and any other transactions
needing a specific Valuation Date, provided such alternate
Valuation Date is within sixty (60) days after the date
the Plan would otherwise value Individual Accounts and
Deductible Accounts.
ARTICLE IV
MAXIMUM BENEFITS, REQUIRED DISTRIBUTION OF BENEFITS AND
RESTRICTIONS ON DISTRIBUTION OF AMOUNTS HELD IN PRE-TAX ACCOUNTS
4.01 Maximum Additions - Anything herein to
the contrary notwithstanding, the total Annual Additions
made to the Individual Account of a Participant for any
Limitation Year when combined with any similar Annual
Additions credited the Participant for the same period
from another qualified Defined Contribution Plan
maintained by the Employer or an Affiliate, shall not
exceed the lesser of Sections 4.01(a) and 4.01(b)
following:
4.01(a) Thirty thousand dollars ($30,000) or, if greater,
twenty-five percent (25%) of the dollar limitation
in effect under IRC Section 415(b)(1)(A); and
4.01(b) Twenty-five percent (25%) of the Participant's
total non-deferred Maximum Compensation received
from the Employer for such Plan Year.
If a Participant is covered by one or more Defined
Contribution Plans maintained by the Employer, the maximum
Annual Additions as noted above shall be decreased as
determined necessary by the Employer, following the
reduction of such other Defined Contribution Plans, to
ensure that all such plans will remain qualified under the
IRC.
4.02 Multiple Plan Participation - If a Participant is a participant of a
Defined Benefit Plan maintained by the Employer or an
Affiliate, the sum of his defined benefit plan fraction
and his defined contribution plan fraction for any
Limitation Year may not exceed 1.0.
For purposes of maximum Annual Additions to Defined
Contribution Plans and maximum annual benefits payable
from Defined Benefit Plans, all Defined Contribution Plans
and all Defined Benefit Plans, whether or not terminated,
shall be combined and treated as one (1) plan.
For purposes of this Section 4.02, the term "defined
contribution plan fraction" shall mean a fraction the
numerator of which is the sum of all of the Annual
Additions to the Participant's Individual Account under
this Plan as of the close of the Limitation Year and the
denominator of which is the sum of the lesser of the
following amounts determined for such Limitation Year and
for each prior Limitation Year of employment with the
Employer:
4.02(a) the product of 1.25 multiplied by the dollar
limitation in effect in Section 4.01(a) for such
year determined without regard to IRC Section
415(c)(6); or
4.02(b) the product of 1.4 multiplied by an amount
determined pursuant to Section 4.01(b) with
respect to each individual under the Plan for such
Limitation Year.
For purposes of this Section, the term, "defined
benefit plan fraction" shall mean a fraction the numerator
of which is the Participant's projected annual benefit (as
defined in the said defined benefit plan) determined as of
the close of the Limitation Year and the denominator of
which is the lesser of:
4.02(c) the product of 1.25 multiplied by the dollar
limitation in effect pursuant to IRC Section
415(b)(1)(A) for such Limitation Year; or
4.02(d) the product of 1.4 multiplied by the amount which
may be taken into account pursuant to IRC Section
415(b)(1)(B) with respect to each individual under
the Plan for such Limitation Year.
The limitation on aggregate benefits from a Defined
Benefit Plan and a Defined Contribution Plan which is
contained in IRC Section 415(e) shall be complied with by
a reduction (if necessary) in the Participant's benefits
under the Defined Benefit Plan(s) [in accordance with the
provisions of the said plan(s)] before a reduction of any
such Defined Contribution Plan.
4.03 Required Distribution of Benefits - If a portion of a
Participant's Individual Account and Deductible Account
which is due and payable pursuant to Article V, and the
Participant has not elected otherwise in accordance with
the provisions of the Plan, any payment of benefits or
commencement thereof to the Participant shall begin not
later than sixty (60) days after the close of the Plan
Year in which occurs the latest of:
4.03(a) the Participant's having attained his Normal
Retirement Age;
4.03(b) the tenth (10th) anniversary of the date the
Participant commenced participation in the Plan;
and
4.03(c) termination of service of the Participant.
Notwithstanding anything contained herein to the
contrary, the interest of each Participant under the Plan
shall begin to be distributed no later than the April 1 of
the calendar year following the calendar year in which the
Participant attains age seventy and one-half (70 1/2) in
accordance with IRC Section 401(a)(9) and the regulations
issued thereunder, inclusive of the minimum distribution
incidental benefit requirement of Section 1.401(a)(9)-2 of
the regulations. Life expectancy of the Employee and the
Employee's spouse (other than for a life annuity) may be
redetermined annually if the Participant so elects.
4.04 Restrictions on Distribution of Amounts Held in Pre-Tax
Accounts - Amounts attributable to pre-tax
contributions held in a Participant's Pre-Tax Account
shall not be distributed prior to the earliest of one of
the following events:
4.04(a) The Participant's retirement, death, Total and
Permanent Disability, or termination of
employment;
4.04(b) The termination of the Plan without establishment
or maintenance of a successor Defined Contribution
Plan (other than an employee stock ownership plan
as defined in IRC Section 4975(e)(7);
4.04(c) The date of the sale or disposition of
substantially all of the assets (sale of eighty-
five percent (85%) of the assets shall be deemed
to be substantially all) used by the Employer in
its trade or business to an unrelated corporation
provided the Employer continues to maintain this
Plan and the Participant continues employment with
the corporation acquiring such assets;
4.04(d) The date of sale or other disposition of the
Employer of its interest in a subsidiary to an
unrelated entity provided the Employer continues
to maintain this Plan and the Participant
continues employment with the unrelated entity;
4.04(e) the Participant's attainment of age fifty-nine and
one-half (59 1/2); or
4.04(f) the Participant's hardship.
All distributions shall be subject to the Participant
and spousal, if any, consent requirements, if applicable,
pursuant to IRC Sections 401(a)(11) and 417.
ARTICLE VV
BENEFITS ON RETIREMENT, DEATH, TOTAL AND
PERMANENT DISABILITY OR TERMINATION OF EMPLOYMENT
5.01 Normal Retirement - Upon the
retirement of a Participant on his Normal Retirement Date,
the Current Balance of his Individual Account and
Deductible Account shall become payable, and the Plan
Administrator shall direct the Trustee and/or Insurance
Company, if applicable, to distribute such amount to the
Participant in accordance with Section 5.08 and the
provisions of the Participation Agreement.
5.02 Delayed Retirement - Upon the
retirement of a Participant on his Delayed Retirement
Date, the Current Balance of his Individual Account and
Deductible Account shall become payable, and the Plan
Administrator shall direct the Trustee and/or Insurance
Company, if applicable, to distribute such amount to the
Participant in accordance with Section 5.08 and the
provisions of the Participation Agreement.
5.03 Early Retirement - Upon the retirement
of a Participant on his Early Retirement Date, the Current
Balance of his Individual Account and Deductible Account
shall continue to be held as a part of the Fund until what
would otherwise be the Participant's Normal Retirement
Date at which time the Plan Administrator shall direct the
Trustee and/or Insurance Company, if applicable, to
distribute to the Participant the Current Balance then
held in his Individual Account and Deductible Account in
accordance with Section 5.08 and the provisions of the
Participation Agreement.
Notwithstanding anything contained herein to the
contrary, a Participant who retires at his Early
Retirement Date, shall have the right, at any time prior
to his Normal Retirement Date, to elect to have the
Current Balance held in his Individual Account and
Deductible Account paid at an earlier date including the
commencement of his benefit as of his Early Retirement
Date. If the Participant makes such an election, the Plan
Administrator shall direct the Trustee and/or Insurance
Company, if applicable, to distribute to the Participant
the Current Balance held in his Individual Account and
Deductible Account as of the first day of the month
coinciding with or next following such election in
accordance with Section 5.08 and the provisions of the
Participation Agreement.
Any amount held on a Participant's behalf pursuant to
this Section 5.03 shall continue to share in the
Adjustment of the Fund pursuant to Section 3.02.
5.04 Disability Retirement - Upon
the retirement of a Participant on his Disability
Retirement Date, the Current Balance of his Individual
Account and Deductible Account shall continue to be held
as a part of the Fund until what would otherwise be the
Participant's Normal Retirement Date, at which time the
Plan Administrator shall direct the Trustee and/or
Insurance Company, if applicable, to distribute to the
Participant the Current Balance held in his Individual
Account and Deductible Account in accordance with Section
5.08 and the provisions of the Participation Agreement.
Notwithstanding anything contained herein to the
contrary, a Participant who retires at his Disability
Retirement Date, shall have the right, at any time prior
to his Normal Retirement Date, to elect to have the
Current Balance held in his Individual Account and
Deductible Account paid at an earlier date including
commencement of his benefit as of his Disability
Retirement Date. If the Participant makes such an
election, the Plan Administrator shall direct the Trustee
and/or Insurance Company, if applicable, to distribute to
the Participant the Current Balance held in the
Participant's Individual Account as of the first day of
the month coinciding with or next following such election
in accordance with Section 5.08 and the provisions of the
Participation Agreement.
For purposes of this Section 5.04 as it relates to
distribution of a Participant's Deductible Account, the
term "disability" means an incapacity which leaves the
Participant unable to engage in any substantially gainful
activity by reason of any medically determinable physical
or mental impairment which can be expected to result in
death or to be of long-continued and indefinite duration.
If a Totally and Permanently Disabled Participant does not
satisfy this definition of "disability," then his
Deductible Account shall continue to be held as a part of
the Fund until what would otherwise be his Normal
Retirement Date, at which time the Plan Administrator
shall direct the Trustee and/or Insurance Company, if
applicable, to distribute to the Participant the Current
Balance held in his Deductible Account in accordance with
Section 5.08 and the provisions of the Participation
Agreement.
Any amount held on a Participant's behalf pursuant to
this Section 5.04 shall continue to share in the
Adjustment of the Fund pursuant to Section 3.02.
5.05 Death Prior to the Commencement of Benefits - At the
death of a Participant before his retirement or termination of
employment or if a retired or terminated Participant dies
prior to the commencement of his benefit, a death benefit
shall be paid and the Plan Administrator shall direct the
Trustee and/or Insurance Company, if applicable, to
distribute the benefit to the Participant's Beneficiary in
accordance with Section 5.08 and the provisions of the
Participation Agreement, subject to the following
provisions of this Section.
5.05(a) If the designated Beneficiary is the spouse of the
Participant, the Beneficiary may elect to commence
the benefit within a reasonable period of time
after the Participant's death but in no event may
such election be made later than (i) the December
31 of the calendar year immediately following the
calendar year in which the Participant died, or
(ii) the December 31 of the calendar year in which
the Participant would have attained age seventy
and one-half (70 1/2) and may be paid over the
life or over a period certain not extending beyond
the life expectancy of the designated Beneficiary.
If the spouse dies before the distribution begins,
then the five (5) year distribution requirement of
Section 5.05(c) shall apply as if the Beneficiary
were the Participant.
5.05(b) If the benefit is paid to a designated Beneficiary
[as defined in IRC Section 401(a)(9)(E) inclusive
of Section 1.401(a)(9)-1 D-1 and D-2 of the
regulations] other than the Participant's spouse,
the distribution shall commence no later than the
December 31 of the calendar year immediately
following the calendar year in which the
Participant died and may be paid over the life or
over a period certain not extending beyond the
life expectancy of the designated Beneficiary.
The Beneficiary may elect that the benefit be paid
at an earlier date.
5.05(c) At the death of the Participant, if there is no
designated Beneficiary [as defined in IRC Section
401(a)(9) inclusive of Section 1.401(a)(9)-1 D-1
and D-2 of the regulations], then the distribution
of the Participant's entire interest shall be
completed by December 31 of the calendar year
containing the fifty (5th) anniversary of the
Participant's death.
5.05(d) The benefit payable under the provisions of this
Section 5.05 may not be paid in any form which
would violate the required distribution
requirements of Sections 5.05(a), 5.05(b) or
5.05(c).
5.06 Death After the Commencement of Benefits - If a Participant dies after
the commencement of benefit payments under the provisions
of the Participation Agreement applicable to him, any
benefits payable upon his death shall continue to be paid
in accordance with the method of payment in effect on his
date of death. Upon the death of a Participant who is
receiving benefits, the remaining portion of his interest
under the Plan must be distributed at least as rapidly as
under the method of distribution being used at the date of
the Participant's death.
5.07 Termination of Employment - Upon termination of
employment for any reason other than
retirement, death or Total and Permanent Disability, a
Participant shall be entitled to a benefit equal to the
Current Balance of his Individual Account and Deductible
Account as of his date of termination of employment.
A Participant at all times shall be one hundred percent
(100%) vested in his Individual Account and Deductible
Account.
If the Current Balance of the Participant's Individual
Account and Deductible Account does not exceed three
thousand five hundred dollars ($3,500) (including any
previous distributions made to the Participant), the Plan
Administrator shall direct the Trustee and/or Insurance
Company to distribute to the Participant the Current
Balance of his Individual Account and Deductible Account
as soon as reasonably possible following his termination
of employment in accordance with Section 5.08 and the
provisions of the Participation Agreement. If the Current
Balance of the Participant's Individual Account and
Deductible Account exceeds three thousand five hundred
dollars ($3,500) (including any previous distributions
made to the Participant), the Participant's consent, as
well as his spouse's consent, if applicable, as provided
under the Participation Agreement, shall be required for
the distribution to be made. If the Current Balance of a
Participant's Individual Account and Deductible Account at
the time of any distribution exceeds three thousand five
hundred dollars ($3,500), then the Current Balance at any
time thereafter shall be deemed to exceed three thousand
five hundred dollars ($3,500) and the Participant's
consent, as well as his spouse's consent if the
Participant is married, shall be required for any
distribution to be made. If the Participant and his
spouse, if required, do not consent to such distribution
being made upon his termination of employment, the
Participant's Individual Account and Deductible Account
shall continue to be held as a part of the Fund until what
would otherwise be his Normal Retirement Date, or if
earlier, the date the Participant requests an earlier
distribution. At such time, the Plan Administrator shall
direct the Trustee and/or Insurance Company, if
applicable, to distribute to the Participant the Current
Balance held in his Individual Account and Deductible
Account as of the first day of the month coinciding with
or next following such election in accordance with Section
5.08 and the provisions of the Participation Agreement.
Any amount held on a Participant's behalf pursuant to
this Section 5.07 shall continue to share in the
Adjustment of the Fund pursuant to Section 3.02.
Upon termination of employment, a Participant may
request the Plan Administrator to transfer the Current
Balance of his Deductible Account to a successor
depository. In such event, the Plan Administrator shall
notify the Trustee and/or Insurance Company to transfer
such amount to such successor depository as soon as
reasonably possible following receipt of such request from
the Participant.
If a Participant who terminated his employment with an
Employer is reemployed as an Employee prior to receiving a
distribution of his Individual Account and Deductible
Account, he shall not be entitled to a distribution under
this Section due to such termination, but shall be
entitled to a distribution as determined herein upon any
subsequent termination of employment for any reason.
5.08 Method of Payment - In order to
receive a benefit under the Plan, a Participant, his
Beneficiary or next of kin must make written application
therefor on a form or forms provided by the Plan
Administrator. The Plan Administrator may require that
there be furnished to it in connection with such
application all information pertinent to any question of
eligibility and the amount of any benefit. Benefits shall
be paid in accordance with the Participation Agreement
applicable to each Employer.
Notwithstanding anything contained herein to the
contrary, effective for periods commencing on and after
January 1, 1993, in addition to the payment forms provided
in the Participation Agreement applicable to each
Employer, a Participant or his spouse may elect to have
any portion of an eligible rollover distribution paid
directly to an eligible retirement plan designated by the
Participant or his spouse in the form of a direct
rollover. For purposes of direct rollovers, the following
definitions shall apply.
5.08(a) An eligible rollover distribution is any
distribution of all or any portion of the balance
to the credit of the Participant, his spouse or
his former spouse under a qualified domestic
relations order, except that an eligible rollover
distribution shall not include:
(i) any distribution that is one of a series
of substantially equal periodic payments,
paid not less frequently than annually, made
for the life expectancy of the Participant
or his spouse or the life expectancies of
the Participant and his spouse, or for a
specified period of ten (10) years or more;
(ii) any distribution to the extent such
distribution is required under IRC Section
401(a)(9); and the portion of any
distribution that is not includible in gross
income (determined without regard to the
exclusion of net unrealized appreciation
with respect to employer securities).
5.08(b) An eligible retirement plan is an individual
retirement account described in IRC Section
408(a), an individual retirement annuity described
in IRC Section 408(b), an annuity plan described
in IRC Section 403(a), that accepts, or a
qualified trust described in IRC Section 401(a)
that will accept a Participant's rollover
distribution. However, in the case of an eligible
rollover distribution to the surviving spouse of a
Participant, an eligible retirement plan is an
individual retirement account or individual
retirement annuity.
5.08(c) A direct rollover is a payment by the Plan to an
eligible retirement plan specified by the
Participant or his spouse.
5.09 Benefits to Minors and Incompetents - If any person
entitled to receive payment under the Plan is a
minor, the Plan Administrator,
in its discretion, may dispose of such amount in any one
or more of the following ways:
5.09(a) By payment thereof directly to such minor;
5.09(b) By application thereof for the benefit of such
minor;
5.09(c) By payment thereof to either parent of such minor
or to any adult person with whom such minor may at
the time be living or to any person who shall be
legally qualified and acting as guardian of the
person or the property of such minor; provided
only that the parent or adult person to whom any
amount is paid shall have advised the Plan
Administrator in writing that he will hold or use
such amount for the benefit of such minor.
If a person entitled to receive payment under the Plan
is physically or mentally incapable of personally
receiving and giving a valid receipt for any payment due
(unless prior claim therefor has been made by a duly
qualified committee or other legal representative), the
payment may be made to the spouse, son, daughter, parent,
brother, sister or other person deemed by the Plan
Administrator to have incurred expense for such person
otherwise entitled to payment.
5.10 Maximum Option Payable - If a Participant elects
to have his benefit paid under an
optional form of payment and the designated Beneficiary is
not the spouse of the Participant, the option elected
shall be restricted so that the minimum distribution
incidental benefit requirement of IRC Section 401(a)(9)
and Treasury Regulations Section 1.401(a)(9)-2 is met.
ARTICLE VI
WITHDRAWALS AND LOANSAND LOANS
6.01 Withdrawals and Loans Generally - Any withdrawals other
than withdrawals for hardship as specifically provided for
in Section 6.02 and withdrawal of a Participant's Deductible Account as
provided for in Section 6.03 shall be available in
accordance with the provisions of the Participation
Agreement applicable to the Participant's Employer.
Effective on and after January 1, 1989, no loans shall be
available from the Plan. However, any prior loans which
are outstanding shall be subject to the provisions of the
Participation Agreement.
6.02 Hardship Withdrawal - Effective for periods commencing
on and after January 1, 1990, upon
the occurrence of a financial hardship, as herein defined,
a Participant may make application to withdraw all or part
of the Current Balance of his Pre-Tax Account.
Withdrawals hereunder may only be made from actual pre-tax
contributions held in the Pre-Tax Account and not from
earnings on such pre-tax contributions. Withdrawals from
any account under the Plan other than the Pre-Tax Account
shall be subject to the terms of the Participation
Agreement.
6.02 (a) The Plan Administrator shall authorize a
withdrawal of pre-tax contributions from a
Participant's Pre-Tax Account only upon a finding
that:
(i)The withdrawal is necessary to enable the
Participant to meet unusual or special
situations in his financial affairs which
result in an immediate and heavy financial
need;
(ii)Such amount is not available from other
resources of the Participant; and
(iii)Any distribution hereunder may not exceed
the amount required to meet the immediate
financial need created.
6.02(b) In furtherance of Section 6.02(a)(i), a financial
hardship with respect to a Participant shall be
deemed to be present if the withdrawal request is
on account of:
(i)Medical expenses described in IRC Section
213(d) incurred by the Participant, the
Participant's spouse, or any dependents of
the Participant (as defined in IRC Section
152);
(ii)Purchase (excluding mortgage payments) of a
principal residence for the Participant;
(iii)Payment of tuition for the next semester or
quarter of post-secondary education for the
Participant, his spouse, children or
dependents;
(iv)The need to prevent the eviction of the
Participant from his principal residence or
foreclosure on the mortgage on the
Participant's principal residence;
(v)Such other events as may be determined by
the Internal Revenue Service.
6.02(c) In furtherance of Section 6.02(a)(ii), a
distribution will be considered to be necessary to
satisfy an immediate and heavy financial need if,
in the judgment of the Plan Administrator, all of
the following requirements are met:
(i)The Participant has obtained all
distributions, other than hardship
distributions, and all nontaxable loans
currently available from all plans
maintained by the Employer.
(ii)By the terms of this subsection, the Plan
shall suspend a Participant's right to make
any pre-tax contributions to all other plans
maintained by the Employer until the first
payroll period following the January 1 or
July 1 following twelve (12) months after
receipt of the hardship distribution. If
more than one (1) distribution is made
hereunder within a twelve (12) month period,
the suspension period shall not be tacked to
the remaining portion of the prior
suspension period but a new suspension
period shall commence for such distribution.
(iii)By the terms of this subsection, the Plan
shall restrict a Participant's right to make
pre-tax contributions to any plan sponsored
by the Employer in the taxable year
following the taxable year of the hardship
distribution to an amount equal to the
applicable limit under IRC Section 402(g)
reduced by the Participant's pre-tax
contributions under such plan in the taxable
year of the hardship distribution. The term
"taxable year" as used hereunder means the
Participant's taxable year.
(iv)The reasonable liquidation of the
Participant's assets to the extent that the
liquidation would not itself cause an
immediate and heavy financial need.
Upon such findings, the Plan Administrator shall direct
the Trustee and/or Insurance Company, if applicable, to
make the distribution in accordance with the Participation
Agreement as soon as reasonably possible following the
determination.
Amounts withdrawn under this Section may not be repaid
to the Fund.
6.03 Withdrawal of Deductible Account - With thirty (30) days prior written
notice to the Plan Administrator, a Participant may
request a withdrawal of the Current Balance of his
Deductible Account. Payment of such amount shall be in
accordance with the Participation Agreement and shall be
made as soon as reasonably possible after the Plan
Administrator receives the withdrawal request.
ARTICLE VII
FUNDING
7.01 Trust Fund - On behalf of all Employers,
the Corporation shall enter into an agreement with the
Trustee whereunder the Trustee shall receive, invest and
administer as a trust fund all amounts transferred to and
held under this Plan in accordance with the Trust
Agreement.
The Trust Agreement is attached hereto and incorporated
by reference as a part of the Plan, and the rights of all
persons hereunder are subject to the terms of the Trust
Agreement. The Trust Agreement specifically provides,
among other things, for the investment and reinvestment of
the Fund and the income thereof, management of the Fund,
responsibilities and immunities of the Trustee, removal of
the Trustee and appointment of a successor, accounting by
the Trustee and disbursement of the Fund.
The Trustee, in accordance with the terms of the Trust
Agreement, shall accept and receive all sums of money
transferred to it from time to time from a prior trustee
or from a Contract or Contracts held pursuant to a Prior
Plan. The Trustee shall also accept and hold any Contract
or Contracts which are transferred to the Trustee under
Section 7.02.
The Trustee will establish and maintain the following
three (3) Investment Funds for the purposes of investment
elections stipulated in Section 7.03 and Section 7.04:
Fund 1 - shall be an equity fund to be invested and
reinvested in such shares of common stock, or other like
evidences, of ownership and such other property, or part
interest in property, real or personal, foreign or
domestic, the rate of return from which is not fixed by
the instruments evidencing the investments whether or not
productive of income or consisting of wasting assets and
any other investment authorized pursuant to the Trust
Agreement. To the extent that the Trustee, in its
discretion, deems desirable or pending selection and
purchase of other suitable investments or to provide for
current cash requirements, the Trustee may hold such other
investments the rate of return from which is fixed by the
instruments evidencing the investments.
Fund 2 - shall be a fixed income fund to be invested
and reinvested (a) in such shares of stock (preferred,
preference or guaranteed) or other evidences of ownership,
such bonds, debentures, equipment or collateral trust
certificates, notes or other evidences of indebtedness,
unsecured or secured by mortgages on real or personal
property wherever situated (including any part interest in
a bond and mortgage or note and mortgage whether secured
or unsecured), and such other property, or part interest
in personal property, foreign or domestic, the rate of
return from which is fixed by the instruments evidencing
the investments; (b) in insured savings accounts, time
deposits or certificates of deposit in national banks,
including the Trustee bank, or savings and loan
institutions, or in Treasury bill backed money market
funds or in security issues of the United States
government or in other high yielding investments of a safe
and prudent nature; and (c) to the extent the Trustee in
its discretion deems desirable, or pending selection and
purchase of other suitable investments, or to provide for
current cash requirements, in other debt securities
(including obligations of the Government of the United
States of America) payable on demand or having maturities
not exceeding one (1) year and to retain any otherwise
ineligible property received by way of dividend, exchange,
conversion, liquidation or otherwise than by purchase for
as long as the Trustee in its discretion deems desirable
for advantageous realization thereon.
Fund 3 - shall be invested by the Trustee, at its
discretion, in insured savings accounts, time deposits or
certificates of deposit in a national bank, or savings and
loan institutions, or in a Treasury bill backed money
market fund or in security issues of the United States
Government or in other high yielding investments of a safe
and prudent nature or in guaranteed investment contracts
issued by an Insurance Company. In addition to being
available for the investment option elections pursuant to
Sections 7.03 and 7.04, all amounts held upon a
Participant's retirement, death, Total and Permanent
Disability or termination of employment pursuant to
Article V which will not be distributed immediately shall
be held in Fund 3 and such amounts shall be transferred to
Fund 3 as of the Valuation Date following the
Participant's retirement, death, Total and Permanent
Disability or termination of employment.
In addition, Fund 3 shall hold any Contract or
Contracts which may be maintained until such time as they
may be liquidated as provided in accordance with the
provisions of Section 3.02. Any Contract or Contracts
held pursuant to Section 3.02 in Fund 3 shall only apply
to applicable Participants who at the time of any merger
were participants of the Prior Plan of which such Contract
or Contracts were a part thereof. Any such Contract or
Contracts shall not be available for investment elections
pursuant to Section 7.03 and 7.04.
In the year in which any funds become available due to
the liquidation of any Contract or Contracts or for any
other reason, such amounts shall be held in a segregated
account in Fund 3 until the December 31 Valuation Date
following the date of liquidation or release of funds.
Thereafter, such funds shall be invested in accordance
with the investment election made by the Participant in
accordance with Section 7.03 and 7.04.
Income from investments in each Investment Fund shall
be reinvested in the same Investment Fund. The Trustee
shall transfer assets from one Investment Fund to the
other as directed by the Plan Administrator to maintain
the proper allocation among the Investment Funds.
7.02 Contract Fund or Funds - If, as a result of a merger or
acquisition, the Corporation desires to merge a Prior Plan into
this Plan and such Prior Plan has all or a portion of its assets
invested in one (1) or more insurance contracts and the terms of such
Contract or Contracts would make it detrimental to
liquidate such Contract or Contracts, then in order to
provide for the transition of assets to this Plan, the
Corporation may continue to maintain any Contract or
Contracts utilized by the acquired Employer for purposes
of carrying out the funding of its Prior Plan or have such
Contract or Contracts transferred to the Trustee and held
pursuant to the Trust Agreement in Investment Fund 3 to
provide the benefits for affected Participants until the
Contract or Contracts may be liquidated and such assets
made a part of the Trust established under the Plan. Any
such Contract or Contracts shall be attached hereto and
incorporated by reference as a part of the Plan and/or
Trust. The rights of all Participants affected by the
maintenance of such Contract or Contracts shall be subject
to the terms of the Contract or Contracts until
liquidation is appropriate. Any Contract or Contracts
shall contain such powers and reservations as to
investments, reinvestments, control and disbursement of
the funds, and such other provisions not inconsistent with
the provisions of the Plan and its nature and purposes as
shall be agreed upon and set forth therein.
7.03 Direction of Investment of Individual Accounts and
Deductible Accounts - Upon commencing participation,
each Participant shall have the right to direct that the
amount held in his Individual
Account and Deductible Account be invested in Investment
Fund 1, Fund 2 Fund 3 or among such Investment Funds. If
investments are made among the Investment Funds,
investments shall be in increments of no less than
twenty-five percent (25%). Investment Fund elections
shall be made on forms provided by the Plan Administrator
and each Participant shall be provided with appropriate
forms at the time he becomes a Participant covered under
this Plan.
In the absence of a notification by a Participant to
the Plan Administrator concerning the direction of the
investment of his Individual Account and Deductible
Account, the Plan Administrator shall assume the
Participant elected that the total amount held in his
Individual Account and Deductible Account be invested in
Investment Fund 3.
Investment elections hereunder shall be applicable as
of the January 1 following the date the election is made
and shall continue to apply in subsequent Plan Years until
the Participant properly initiates a change in accordance
with Section 7.04.
7.04 Change in Direction of Investment of Individual Accounts
and Deductible Accounts - Each Participant shall have the
right by written request to the Plan Administrator, on forms provided
by the Plan Administrator, at least sixty (60) days (or such shorter
period as may be acceptable to the Plan Administrator) in
advance to direct that the balance in his Individual
Account and Deductible Account as of any January 1
invested in the Investment Fund options be liquidated and
the proceeds thereof transferred to another Investment
Fund or among such Investment Fund options for
reinvestment. Each such election shall be in increments
of no less than twenty-five percent (25%) as it relates to
each such election. Any such change shall be applicable
as of the January 1 following the date the change is made
and shall continue to apply until the Participant properly
initiates another change.
All requests for changes in the investment of amounts
held in a Participant's Individual Account and Deductible
Account shall be addressed in writing to the Plan
Administrator. The Plan Administrator shall without undue
delay forward appropriate directions to the Trustee for
execution and the Trustee shall carry out such directions
as expeditiously as possible.
ARTICLE VIII
FIDUCIARIES AND PLAN ADMINISTRATIONAND PLAN ADMINISTRATION
8.01 General - Each Fiduciary who is delegated
specific duties or responsibilities under the Plan or any
Fiduciary who assumes such a position with the Plan shall
discharge his duties solely in the interest of
Participants and Beneficiaries and for the purpose of
providing such benefits as stipulated herein to such
Participants and Beneficiaries. In carrying out such
duties and responsibilities, each Fiduciary shall act with
the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in
a like capacity and familiar with such matters would use
in exercising such authority or duties. Further, a
Fiduciary shall have an overall responsibility to
diversify 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.
A Fiduciary may serve in more than one Fiduciary
capacity and may employ one or more persons to render
advice with regard to his Fiduciary responsibilities. If
a Fiduciary is serving as such without compensation, all
expenses reasonably incurred by such Fiduciary shall be
reimbursed by the Employer or, at the Corporation's
direction, from the Trustee and/or Insurance Company, if
applicable.
A Fiduciary may delegate any of his responsibilities
for the operation and administration of the Plan. In
limitation of this right, a Fiduciary may not delegate any
responsibilities as contained herein relating to the
management or control of the Fund except through the
employment of an investment manager as provided in Section
8.03 and in the Trust Agreement relating to the Fund. In
limitation of this right, a Fiduciary may not delegate any
responsibilities as contained herein relating to the
management or control of the Fund held pursuant to any
Contract or Contracts.
8.02 Corporation - The Corporation established
and maintains the Plan for the benefit of eligible
Employees and those of participating Employers and of
necessity retains control of the operation and
administration of the Plan. In accordance with specific
provisions of the Plan, the Corporation has, as herein
indicated, delegated certain of these rights and
obligations to the Employer, Trustee and/or Insurance
Company, if applicable, and Plan Administrator and these
parties shall be responsible solely for these delegated
rights and obligations.
The Employer shall indemnify the Board, Plan
Administrator, Trustee and/or Insurance Company, if
applicable, and any other person to whom any fiduciary
responsibility with respect to the Plan is delegated, from
and against any and all liabilities, costs and expenses
incurred by such persons as a result of any act or
omission to act in connection with the performance of
their fiduciary duties, responsibilities and obligations
under the Plan and ERISA, except for liabilities and
claims arising from such Fiduciary's willful misconduct or
gross negligence. For this purpose, the Employer may
obtain, pay for and keep current a policy or policies of
insurance; however, such insurance shall not release the
Employer of liability under this provision.
The Employer shall supply such full and timely
information for all matters relating to the Plan as the
Plan Administrator, Trustee and/or Insurance Company, if
applicable, and accountant engaged on behalf of the Plan
by the Corporation may require for the effective discharge
of their respective duties.
8.03 Trustee - The Trustee, in accordance with the
Trust Agreement, shall have exclusive authority and
discretion to manage and control the Fund, except that the
Corporation may in its discretion employ at any time and
from time to time an investment manager [as defined in
ERISA Section 3(38)] to direct the Trustee with respect to
all or a designated portion of the assets comprising the
Fund.
8.04 Insurance Company - The Insurance Company, if applicable,
in accordance with the Contract, shall have exclusive authority
and discretion to manage and control any portion of the Fund held
pursuant to a Contract or Contracts.
8.05 Plan Administrator - The Corporation shall appoint a Plan
Administrator to hold office during the pleasure of the Corporation. No
compensation shall be paid from the Fund to the Plan
Administrator for service as such.
In accordance with the provisions hereof, the Plan
Administrator has been delegated certain administrative
functions relating to the Plan with all powers necessary
to enable it properly to carry out such duties. The Plan
Administrator shall have no power in any way to modify,
alter, add to or subtract from, any provisions of the
Plan.
The Plan Administrator shall have the duty and
discretionary authority to construe the Plan, and to
determine all questions that may arise thereunder relating
to (a) the eligibility of individuals to participate in
the Plan, (b) the amount of benefits to which any
Participant or Beneficiary may become entitled hereunder,
and (c) any situation not specifically covered by the
provisions of the Plan. All disbursements by the Trustee
and/or Insurance Company, if applicable, except for the
payment of operating expenses of the Plan and Fund at the
direction of the Corporation as provided in Section 12.03,
shall be made upon, and in accordance with, the written
directions of the Plan Administrator. When the Plan
Administrator is required in the performance of its duties
hereunder to administer, construe, or reach a
determination under any of the provisions of the Plan, it
shall do so in a uniform, equitable and nondiscriminatory
basis.
8.06 Claims for Benefits - All claims for benefits under the Plan shall
be submitted to the Plan Administrator, who shall have the
responsibility for determining the eligibility of any Participant or
Beneficiary for benefits. All claims for benefits shall
be made in writing and shall set forth the facts which
such Participant or Beneficiary (the "applicant") believes
sufficient to entitle him to the benefit claimed. The
Plan Administrator may adopt forms for the submission of
claims for benefits in which case all claims for benefits
shall be filed on such forms. The Plan Administrator
shall provide applicants with all such forms.
Upon receipt by the Plan Administrator of a claim for
benefits, it shall determine all facts which are necessary
to establish the right of an applicant to benefits under
the provisions of the Plan and the amount thereof as
herein provided. The Plan Administrator shall approve,
deny and investigate all questionable claims. Upon
request, the Plan Administrator shall afford any applicant
the right of a hearing with respect to any finding of fact
or determination related to any claim for benefits under
the Plan. If any claim for benefits is denied, the
applicant shall be notified of such decision in accordance
with the provisions of Section 8.07.
8.07 Claims Procedures - The applicant shall be notified
in writing of any adverse decision with
respect to his claim within ninety (90) days after its
submission. The notice shall be written in a manner
calculated to be understood by the applicant and shall
include:
8.07(a) The specific reason or reasons for the denial;
8.07(b) Specific references to the pertinent Plan
provisions on which the denial is based;
8.07(c) A description of any additional material or
information necessary for the applicant to perfect
the claim and an explanation why such material or
information is necessary; and
8.07(d) An explanation of the Plan's claim review
procedures.
If special circumstances require an extension of time
for processing the initial claim, a written notice of the
extension and the reason therefor shall be furnished to
the claimant applicant the end of the initial ninety (90)
day period. In no event shall such extension exceed
ninety (90) days.
If a claim for benefits is denied or if applicant has
no response to such claim within ninety (90) days of its
submission (in which case the claim for benefits shall be
deemed denied), the applicant or his duly authorized
representative, at the applicant's sole expense, may
appeal the denial to the Plan Administrator within sixty
(60) days of the receipt of written notice of denial or
sixty (60) days from the date such claim is deemed denied.
In pursuing such appeal, the applicant or his duly
authorized representative:
8.07(e) May request in writing that the Plan Administrator
review the denial;
8.07(f) May review pertinent documents; and
8.07(g) May submit issues and comments in writing.
The decision on review shall be made within sixty (60)
days of receipt of the request for review, unless special
circumstances require an extension of time for processing,
in which case a decision shall be rendered as soon as
possible but not later than one hundred twenty (120) days
after receipt of a request for review. If such an
extension of time is required, written notice of the
extension shall be furnished to the applicant before the
end of the original sixty (60) day period. The decision
on review shall be made in writing, shall be written in a
manner calculated to be understood by the applicant, and
shall include specific references to the provisions of the
Plan on which such denial is based. If the decision on
review is not furnished within the time specified above,
the claim shall be deemed denied on review.
8.08 Records - All acts and determinations of the
Plan Administrator shall be duly recorded, and all such
records and other documents as may be necessary in
exercising its duties under the Plan shall be preserved in
the custody of the Plan Administrator. Such records and
documents at all times shall be open for inspection to,
and for the purpose of making copies by any person
designated by the Corporation. The Plan Administrator
shall provide such timely information, resulting from the
application of its responsibilities under the Plan, as
needed by the Trustee and/or Insurance Company, if
applicable, and accountant engaged on behalf of the Plan
by the Corporation, for the effective discharge of their
respective duties.
8.09 Missing Persons - The Plan Administrator shall make a
reasonable effort to locate all persons entitled to
benefits under the Plan; however, notwithstanding any
provision in the Plan to the contrary, if after a period of
five (5) years from the date such
benefit is due, any such person entitled to benefits has
not been located, his rights under the Plan shall be
construed as if the Participant had died. Before this
provision becomes operative, the Plan Administrator shall
send a certified letter to such person at his last known
address advising him that his interest or benefits under
the Plan shall be so construed. Any such amounts shall be
held by the Trustee and/or Insurance Company, if
applicable, for a period of three (3) additional years (or
a total of eight (8) years from the time the benefits
first become payable). If no distributee can be found,
then any unclaimed benefits shall be dealt with according
to the laws of the Commonwealth of Virginia, or, if
applicable, the laws of the state in which the Participant
is legally domiciled, pertaining to abandoned intangible
personal property held in a fiduciary capacity.
ARTICLE IX
AMENDMENT AND TERMINATION OF THE PLAN
9.01 Amendment of the Plan - The Corporation shall have the right at
any time by action of the Board to modify, alter or amend the Plan
in whole or in part; provided that the duties, powers and liability of
the Trustee and/or Insurance Company, if applicable,
hereunder shall not be increased without written consent;
the amount of benefits which at the time of any such
modification, alteration or amendment have accrued for any
Participant or Beneficiary hereunder shall not be affected
adversely thereby; and no such amendment shall have the
effect of causing a reversion to the Employer of any part
of the principal or income of the Fund. Notwithstanding
anything contained herein to the contrary, no amendment to
the Plan shall decrease a Participant's Individual Account
or Deductible Account balance or eliminate an optional
form of distribution applicable to a Participant pursuant
to the Participation Agreement.
9.02 Termination of the Plan - The Employer expects to continue
the Plan indefinitely, but continuance is not assumed as a contractual
obligation, and each Employer reserves the right at any
time by action of its board of directors to terminate the
Plan as applicable to itself. If an Employer terminates
or partially terminates the Plan, each Participant
affected thereby shall continue to be one hundred percent
(100%) vested in the amount held in his Individual Account
and Deductible Account.
If the Plan is terminated by an Employer, the Plan
Administrator shall value the Fund as of the date of
termination. That portion of the Fund applicable to any
Employer for which the Plan has not been terminated shall
be unaffected. The Individual Accounts and Deductible
Accounts of Participants and Beneficiaries affected by the
termination, as determined by the Plan Administrator,
shall continue to be administered as a part of the Fund or
distributed to such Participants or Beneficiaries pursuant
to Section 5.08 and the provisions of the Participation
Agreement provided the distribution is otherwise permitted
in accordance with rules and regulations under IRC Section
401(k).
ARTICLE X
PROVISIONS RELATIVE TO EMPLOYERS INCLUDED IN PLAN
10.01 Method of Participation - Any organization which is a member
of the same controlled group of organizations, as defined in IRC
Sections 414(b), (c), (m) and (o), as the Corporation which is
acquired by the Corporation, with the approval of the Board may become
a party to the Plan through a plan merger or otherwise.
The Corporation shall promptly deliver to the Trustee
and/or Insurance Company, if applicable, a certified copy
of the resolutions or other documents evidencing the
acquired Employer's participation in the Plan. The Plan
shall be maintained as a single Plan for all participating
Employers.
10.02 Withdrawal - Any one or more of the Employers
included in the Plan may withdraw from the Plan at any
time by giving six (6) months advance notice in writing of
its or their intention to withdraw to the Board and Plan
Administrator (unless a shorter notice is agreed to by the
Board).
Upon receipt of notice of any such withdrawal, the Plan
Administrator shall certify to the Trustee and/or
Insurance Company, if applicable, the equitable share of
the withdrawing Employer in the Fund, as applicable (to be
determined by the Plan Administrator).
The Trustee thereupon shall set aside from the Fund
then held by it such securities and other property as it,
in its sole discretion, shall deem to be equal in value to
such equitable share. If the Plan is to be terminated
with respect to such Employer, the amount set aside shall
be dealt with in accordance with the provisions of Section
9.02. If the Plan is not to be terminated with respect to
such Employer, the Trustee shall turn over such amount to
such trustee designated by such Employer, and such
securities and other property thereafter shall be held and
invested as a separate trust of such Employer, and shall
be used and applied according to the terms of a new
agreement and declaration of trust between the withdrawn
Employer and the trustee.
Further, the Insurance Company, if applicable,
thereupon shall set aside from the Fund then held by it
such securities and other property as it, in its sole
discretion, shall deem to be equal in value to such
equitable share. If the Plan is to be terminated with
respect to such Employer, the amount shall be dealt with
in accordance with the provisions of Section 9.02. If the
Plan is not to be terminated with respect to such
Employer, the Insurance Company shall invest and
administer the applicable Fund as a separate fund of such
Employer and shall be used and applied according to the
terms of a new group annuity contract between the
withdrawn Employer and the Insurance Company, provided
that the Insurance Company's then applicable underwriting
requirements permit such group annuity contract to be
issued.
Neither the segregation of the Fund assets upon the
withdrawal of an Employer, nor the execution of a new
declaration of trust or Contract pursuant to any of the
provisions of this Section shall operate to permit any
part of the corpus or income of the Fund to be used or
diverted to purposes other than for the exclusive benefit
of Participants and Beneficiaries, except as provided in
Section 12.03.
ARTICLE XI
TOP HEAVY PLAN PROVISIONS
11.01 General - Notwithstanding anything contained
herein to the contrary, if this Plan, when combined with
all other plans required to be aggregated pursuant to IRC
Section 416(g), is deemed to be a Top Heavy Plan for any
Plan Year, the following conditions shall become
operative.
11.02 Definitions - For purposes of this
Article, the following definitions shall be applicable:
11.02(a)Determination Date means the last day of the Plan
Year preceding the Plan Year in which the
determination is being made. In the case of the
first Plan Year, Determination Date means the last
day of such Plan Year.
11.02(b)Key Employee means any employee, former employee
or beneficiary of a former employee in an Employer
plan who at any time during the Plan Year or any
of the four (4) preceding Plan Years is:
(i)An officer of the Employer having annual
Maximum Compensation greater than fifty
percent (50%) of the amount in effect under
IRC Section 415(b)(1)(A) for any such Plan
Year;
(ii)One (1) of the ten (10) employees having
annual Maximum Compensation from the
Employer of more than the limitation in
effect under IRC Section 415(c)(1)(A) and
owning (or considered as owning within the
meaning of IRC Section 318) more than a
one-half percent (1/2%) interest and the
largest interest in the Employer;
(iii)A Five Percent (5%) Owner of the Employer;
or
(iv)A one percent (1%) owner of the Employer
having annual Maximum Compensation from the
Employer of more than one hundred fifty
thousand dollars ($150,000).
For purposes of Section 11.02(b)(i), no more
than fifty (50) employees [or, if lesser, the
greater of three (3) or ten percent (10%) of
employees] shall be treated as officers. Further,
for purposes of determining the number of officers
taken into account under Section 11.02(b)(i),
employees described in IRC Section 414(q)(8) shall
be excluded.
With respect to Section 11.02(b)(ii), if two
(2) employees have the same ownership interest in
the Employer, the employee having the greater
annual Maximum Compensation shall be treated as
having a larger interest.
11.02(c)Non-Key Employee means an employee, former
employee or beneficiary of a former employee who
is not a Key Employee.
11.02(d)Top Heavy Plan generally means on or after January
1, 1984, any plan under which as of any
Determination Date the present value of the
cumulative accrued benefits (inclusive of any pre-
tax contributions) for Key Employees exceeds sixty
percent (60%) of the present value of the
cumulative accrued benefits for all employees.
For purposes of this definition:
(i)If the plan is a Defined Contribution Plan,
the present value of cumulative accrued
benefits shall be deemed to be the market
value of all employee accounts under the
plan as of the Top Heavy Valuation Date plus
contributions to the Plan as of the
Determination Date. If the plan is a
Defined Benefit Plan, the present value of
cumulative accrued benefits shall be deemed
to be the lump sum present value of a
participant's accrued benefit under such
plan calculated on the basis of interest and
mortality as set forth in said plan as of
the Top Heavy Valuation Date plus
contributions due under the Plan as of the
Determination Date. Notwithstanding the
above, for purposes of determining the
present value of the cumulative accrued
benefits, distributions made within a five
(5) year period ending on the Determination
Date must be included. The account balances
and accrued benefits of a Non-Key Employee
who was previously a Key Employee shall be
excluded from the computation hereunder.
(ii)Each plan of the Employer required to be
included in an "aggregation group" shall be
treated as a Top Heavy Plan if such group is
a top heavy group.
(iii)The term "aggregation group" means
(A)each plan of the Employer that is
currently effective or which has
terminated within the five (5) year
period ending on the Determination Date
in which a Key Employee is a participant
in the plan year containing the
Determination Date or any of the four
(4) preceding plan years; and
(B)each other plan of the Employer which
enables any plan in (A) to meet the
requirements of IRC Sections 401(a)(4)
or 410.
A permissive aggregation group
consists of plans of the Employer that are
required to be aggregated, plus one (1) or
more plans of the Employer that are not part
of a required aggregation group but satisfy
the requirements of IRC Sections 401(a)(4)
and 410 when considered together with the
required aggregation group.
(iv) If any individual has not performed
any service for the Employer at any time
during the five (5) year period ending on
the Determination Date, any accrued benefit
for such individual shall not be taken into
account in the testing procedure herein
described.
11.02(e)Top Heavy Valuation Date means the most recent
Valuation Date occurring within a twelve (12)
month period ending on the Determination Date.
These definitions shall be interpreted consistent with
IRC Section 416 and rules and regulations issued
thereunder. Further, such law and regulations shall be
controlling in all determinations under these definitions
inclusive of any provisions and requirements stated
thereunder but hereinabove absent.
11.03 Minimum Top Heavy Contribution - In a Plan Year in which the
Plan becomes a Top Heavy Plan, inclusive of a Plan Year in which
the Plan is considered a top heavy frozen plan pursuant to the
provisions of Section 1.416-1 T-5 of the regulations under
IRC Section 416 but has not terminated, and the aggregate
contributions by the Employer to all Non-Key Employees who
are Participants allocated to their Individual Accounts
are less than three percent (3%) of Maximum Compensation
(exclusive of any pre-tax contributions) for Plan Years
beginning after December 31, 1988), then the Employer
shall contribute to the Plan an amount necessary to
provide a minimum contribution, including any forfeitures,
of at least three percent (3%) of Maximum Compensation to
such Non-Key Employees who are Participants and who are
employed as of the last day of the Plan Year regardless of
(a) whether such Non-Key Employee has completed one
thousand (1,000) Hours of Service, (b) whether such Non-
Key Employee has made pre-tax contributions to the Plan,
or (c) the level of the Non-Key Employee's Compensation.
The minimum contribution required herein shall not be
forfeited in the event the Participant withdraws his pre-
tax contributions. In no event, however, shall the
allocation of the minimum contribution to the Individual
Accounts of Non-Key Employees who are Participants be
greater than the total allocation of contributions by the
Employer (inclusive of pre-tax contributions and
forfeitures) to the Individual Accounts for Key Employees.
Any special contribution or reallocation as herein
provided shall be made on the basis of the ratio that the
Non-Key Employees' Maximum Compensation bears to the total
Maximum Compensation of all Non-Key Employees.
A Top Heavy Contribution of less than three percent
(3%) shall not be permissible if the Employer maintains a
Defined Benefit Plan which designates this Plan to satisfy
IRC Section 401(a).
11.04 Defined Benefit Plan Minimum Accrued Benefit - If the Employer
also maintains a Defined Benefit Plan and the Defined
Benefit Plan provides the minimum accrued benefit
determined pursuant to IRC Section 416(c)(1), then the
adjustment provided in Section 11.03 shall not be
required.
11.05 Multiple Plan Participation - If Section 11.03 or Section 11.04 is
applicable, then the multiplier of 1.25 in Sections
4.02(a) and 4.02(c) shall be reduced to 1.0.
11.06 No Duplication of Minimum Benefit - These Top Heavy Plan provisions shall
not require that the entire defined benefit minimum
benefit and defined contribution minimum contribution be
provided. To the extent that there is a defined benefit
accrued benefit, it shall be controlling. To the extent
that there is a contribution by the Employer to a Defined
Contribution Plan, then there shall be a determination as
to whether the defined contribution amount is comparable
to the difference between the defined benefit minimum
benefit and the minimum defined benefit accrued benefit
required under IRC Section 416. If the defined
contribution amount is not comparable, then the difference
shall be provided in the Defined Benefit Plan.
11.07 Top Heavy Assumptions - For
purposes of determining whether a Defined Benefit Plan is
a Top Heavy Plan, calculations shall be based upon
actuarial assumptions stipulated in such plan for this
purpose. If no assumptions are provided, the calculation
shall be based upon The UP-1984 Table of Mortality at five
percent (5%) interest with such determination being made
on the valuation date which occurs within the Plan Year.
ARTICLE XII
MISCELLANEOUS
12.01 Governing Law - The Plan shall be construed, regulated
and administered according to the
laws of the Commonwealth of Virginia except in those areas
preempted by the laws of the United States of America.
12.02 Construction - The headings and subheadings in the Plan have been
inserted for convenience of reference only and shall not affect the
construction of the provisions hereof. In any necessary construction the
masculine shall include the feminine and the singular the
plural, and vice versa.
12.03 Expensess - The operating expenses of the Plan
and Fund shall be paid by the Employer or, upon the
direction of the Corporation, may be paid from the Fund to
the extent such expenses are permitted to be charged
against the Fund. The determination of whether expenses
may be charged against the Fund shall be made by the
Corporation.
12.04 Participant's Rights; Acquittance - No Participant shall acquire any
right to be retained in the Employer's employ by virtue of
the Plan, nor upon his dismissal or voluntary termination
of employment, shall he have any right or interest to and
in the Fund other than as specifically provided herein.
The Employer shall not be liable for the payment of any
benefit provided for herein; all benefits hereunder shall
be payable only from the Fund.
12.05 Spendthrift Clause - Except as provided in IRC Section 401(a)(13)(B)
related to qualified domestic relations orders as defined in IRC Section
414(p), none of the benefits, payments, proceeds, or
distributions under this Plan shall be subject to the
claim of any creditor of the Participant or any
Beneficiary hereunder or to any legal process by any
creditor of such Participant or Beneficiary; and neither
such Participant or Beneficiary shall have any right to
alienate, commute, anticipate, or assign any of the
benefits, payments, proceeds or distributions under this
Plan.
12.05(a)In accordance with this Section 12.05 and IRC
Section 401(a)(13), the prohibition on alienation
or assignment of benefits shall include any
arrangement:
(i) which provides for the payment to the
Employer of benefits under the Plan which
would otherwise be due to the Participant or
Beneficiary; and
(ii) whether direct or indirect, revocable or
irrevocable, whereby a party acquires from
the Participant or Beneficiary a right or
interest enforceable against the Plan in, or
to, all or any part of a Plan benefit
payment which is, or may become, payable to
the Participant or Beneficiary.
12.05(b)However, such alienation or assignment of benefits
shall not include any arrangements:
(i) for the recovery of amounts described in
ERISA Section 4045(b), relating to the
recapture of certain payments;
(ii) for the withholding of federal, state or
local tax from benefit payments under the
Plan;
(iii)for the recovery by the Plan or overpayment
of benefits previously made to a Participant
or Beneficiary;
(iv) for the transfer of benefit rights from this
Plan to another plan;
(v) for the direct deposit of benefit
payments to an account in a bank, savings
and loan association or credit union,
provided such arrangement is not part of an
arrangement constituting an assignment or
alienation;
(vi) whereby a Participant's accrued
nonforfeitable benefit is used as security
for a loan from the Plan, provided that the
Plan's loan provision is limited to loans
from the Plan and does not included the use
of benefits under the Plan as security for a
loan from a party other than the Plan, and,
provided further that the loan must be one
which would be exempt from the tax imposed
by IRC Section 4975 (relating to prohibited
transactions); or
(vii)whereby a Participant or Beneficiary directs
the Plan to pay all or a portion of his
benefit to a third party (which may include
the Employer, if such direction is revocable
at any time by the Participant or
Beneficiary and the third party files
written acknowledgement with the Plan
Administrator in accordance with the
provisions of Section 1.401(a)-13(e)(2) of
the regulations under IRC Section
401(a)(13).
If the Plan Administrator determines that any person
entitled to any payments under the Plan has become
insolvent or bankrupt or has attempted to anticipate,
sell, transfer, assign, pledge, encumber, charge or
otherwise in any manner alienate any benefit or other
amount payable to him under the Plan or that there is any
danger of any levy or attachment or other court process or
encumbrance on the part of any creditor of such person
entitled to payments under the Plan against any benefit or
other amounts payable to such person, the Plan
Administrator, at any time, in its discretion, may direct
the Trustee and/or Insurance Company to withhold any or
all payments to such person under the Plan and apply the
same for the benefit of such person in such manner and
proportion as the Plan Administrator may deem proper.
Notwithstanding anything contained herein to the
contrary, with respect to a debt due by the Participant to
the Employer, a Participant or Beneficiary in pay status
may assign or alienate rights to future benefit payments
provided that any such assignment of alienation:
12.05(c)is voluntary and revocable;
12.05(d)does not exceed ten percent (10%) of any benefit
payment;
12.05(e)is neither for the purpose, nor has the effect, of
defraying Plan administrative costs; and
12.05(f)the Employer files a written acknowledgement with
the Plan Administrator within ninety (90) days of
the assignment that the Employer has no
enforceable right in, or to, any part of a Plan
benefit payment except as may be assigned under
this Section.
12.06 Merger, Consolidation or Transfer - If the plan is merged or
consolidated with another plan or assets or liabilities of
the Plan are transferred to another plan, each then
Participant or Beneficiary shall not, as a result of such
event, be entitled on the day following such merger,
consolidation or transfer under the termination of the
Plan provisions to a lesser benefit than the benefit to
which he was entitled on the date prior to the merger,
consolidation or transfer if the Plan had then terminated.
12.07 Indemnification - The Employer shall indemnify and hold
harmless each person or persons who may
serve as Plan Administrator from any and all claims, loss,
damages, expenses (including attorney's fees) and
liability (including any amounts paid in settlement)
arising from any act or omission of such person or
persons, except when the same is judicially determined to
be due to the gross negligence or willful misconduct of
such person or persons. No Plan assets may be used for
any such indemnification.
12.08 Counterparts - The Plan and Trust Agreement or any Contract,
if applicable, may be executed in any number of counterparts,
each of which shall constitute but one and the same instrument and may be
sufficiently evidenced by any one counterpart.
12.09 Notification of Individual Account and Deductible Account
Balance - After the close of each Plan Year or more frequently as
determined by the Plan Administrator, the Plan Administrator shall
notify each Participant of the amount of his share in the Adjustments
for the Plan Year (or other period) just completed, and
the new balance of his Individual Account.
12.10 Exclusive Benefit - The Employer shall not be entitled to any
part of the corpus or income of the Fund, and no part thereof shall
be used for or diverted to purposes other than for the exclusive benefit
of Participants and Beneficiaries hereunder except as
provided in Section 12.03.
<PAGE>
First Amendment
to the
HRH Frozen Merger and Acquisition Plan
This FIRST AMENDMENT to the HRH Frozen Merger and
Acquisition Plan (the "Plan"), authorized by resolution of
the Hilb, Rogal and Hamilton Company (the "Corporation")
Board of Directors (the "Board"), is made effective as of
January 1, 1998, unless and except as otherwise provided for
herein.
Recitals
WHEREAS, the Corporation has retained the right under
Article IX of the Plan to amend the Plan's provisions; and
WHEREAS, the Corporation has determined that it is in
the best interest of the Corporation and the participants in
the Plan (the "Participants") that the Plan offer the common
stock of the Corporation (the "Common Stock") to the
Participants as an investment fund option under the Plan
under a common stock fund.
Amendment
NOW, THEREFORE, the following Sections and provisions
of the Plan are hereby amended or added, as follows:
1. Section 1.07A is hereby added to the Plan, to read
as folllows:
1.07A Common Stock means the common stock
[without par value] of Hilb, Rogal and Hamilton Company.
2. Section 1.10A is hereby added to the Plan, to read
as follows:
1.10A Current Market Value means, with respect
to the Common Stock, the closing composite quotation price
on the New York Stock Exchange as of the date of
determination; or, if the New York Stock Exchange is closed
on such date, the closing price on the last preceding
trading date.
3. Section 1.26A is hereby added to the Plan, to read
as follows:
1.26A Investment Fiduciary means, as
applicable from time to time, either Hilb, Rogal and
Hamilton Company, the Board or any committee of the Board
then serving as the qualified plan investment committee of
the Board (which also may be referred to herein as the
"Qualified Plan Investment Committee"). The Investment
Fiduciary shall be the "named fiduciary" responsible for the
review and selection of the Investment Funds under the Plan.
4. Section 1.27 is hereby amended and restated, to
read as follows:
1.27 Investment Fund means each investment fund
described in or provided for under Article VII of the Plan,
as amended from time to time, including any segregated
pooled asset account that is established or maintained under
the Trust for investment purposes. Effective as of January
1, 1998, the term Investment Fund shall include the Hilb,
Rogal and Hamilton Company Common Stock Fund (which also may
be referred to herein as the "HRH Common Stock Fund" or the
"Common Stock Fund").
5. Section 1.47 is hereby amended and restated, to
read as follows:
Effective for periods prior to January 1, 1994, Valuation
Date meant each June 30th and December 31st, as of which
dates each year the Fund was valued at its fair market
value; the Plan Administrator, however, was authorized to
value the fund as of any other date it deemed desirable for
Plan purposes.
Notwithstanding the forgoing, effective as of
January 1, 1994, pursuant to the Corporation and the Plan
Administrator changing certain Plan valuation and operations
systems to a daily basis, the term Valuation Date generally
means the Daily Valuation Date hereunder (that is, except
for certain sub-accounts and Funds under the Plan which
remain on quarterly, versus daily, valuation periods).
Daily Valuation Date hereunder means each day of the
calendar year in which securities may be traded on the New
York Stock Exchange, or other day as of which gains and
losses attributable to a particular Investment Fund
hereunder are allocated (or as of which such Investment Fund
shall be adjusted for investment elections and transfer
elections submitted by the Participants), as otherwise
provided for hereunder or under the terms and procedures of
such Investment Fund.
6. Section 5.11 is hereby added to the Plan, to read
as follows:
5.11 Distributions and Withdrawals in Common Stock
Notwithstanding any provision of Article V or
Article VI to the contrary, if a Participant is invested in
the Common Stock Fund under any account hereunder and thus
is invested in, and entitled to, one or more whole shares of
Common Stock hereunder, the Participant must affirmatively
elect to receive any Plan distribution or withdrawal from
such Fund in shares of Common Stock (that is, to receive
such distribution, or a portion thereof, in whole shares of
Common Stock, in lieu of a distribution or withdrawal in
cash). In any event, distributions or withdrawals in shares
of Common Stock shall be available only as to shares under
the Common Stock Fund and as to the Participant's accounts
that otherwise are vested hereunder.
7. Section 7.05 is hereby added to the Plan, to read
as follows:
7.05 Investment Elections after January 1, 1998
Effective as of January 1, 1998, and
notwithstanding any above provision of this Article VII or
other provision of the Plan to the contrary, the
Participant's investment elections under the Plan may be
made in five percent (5%) increments among the Investment
Funds then selected by the Investment Fiduciary and
maintained under the Trust Fund or the Plan, including the
HRH Common Stock Fund. This provision, however, shall not
apply to the frozen insurance contract funds held hereunder
pending liquidation.
Further, subject to the specific rules and procedures
established by the Administrator or under each Investment
Fund, each Participant shall have the right to change their
investment direction election on a daily basis, as often as
such Participant shall determine, through the use of such
interactive voice response systems, other telephonic
systems, plan service center systems, intranet systems,
internet systems or other plan administrative systems such
as are established and maintained by the Administrator from
time to time. This provision, however, shall not apply to
the frozen insurance contract funds held hereunder pending
liquidation.
8. Section 7.06 is hereby added to the Plan, to read
as follows:
7.06 Allocations to the Common Stock Fund
(a) The Plan Administrator shall allocate, at
least once per month, and, to the extent applicable, in
accordance with Depart of Labor Regulations setting plan
investment deadlines, any new funds to be allocated to the
Common Stock Fund for the Trustee to purchase Common Stock;
or, the Corporation may contribute and deliver directly to
the Common Stock Fund of the Trust, within the same required
timeframe, the number of full shares, with such fractional
interest in any share in cash, calculated to the fourth
decimal place, as represent any new funds then otherwise to
be allocated to the Common Stock Fund. The allocation of
shares shall be credited under the Common Stock Fund
accounts based on the actual cost to the Trust of the shares
purchased for the Common Stock Fund accounts due to new
funds on the actual date of such purchase and allocation.
Otherwise, to the extent shares are contributed and
delivered to the Trust directly by the Corporation for a
particular allocation date, the price/cost of such shares,
for Plan and allocation purposes, shall be the closing price
on the New York Stock Exchange on such date; or, if the New
York Stock Exchange is closed on such allocation date, the
closing price on the last preceding trading date.
(b) The Trustee shall not be liable for interest
on any portion of the Fund maintained in cash, but the
Trustee may, but is not required to, invest such cash, if
any, in savings accounts, savings certificates, certificates
of deposit, commercial paper or other interest-bearing
investment which is readily convertible into cash pending
investment in Common Stock. Although the Trustee shall
maintain a record of any such short-term investments, the
Plan Administrator shall treat such amounts as cash and
shall allocate as of each Valuation Date, and credit in the
current Plan Year to the sub-accounts of the Participants,
any income derived from such investments on the basis of the
ratio of the cash balance in each such Participant's sub-
accounts as of such preceding Valuation Date.
9. Section 7.07 is hereby added to the Plan, to read
as follows:
7.07 Acquisition of Commons Stock
Purchases of shares of Common Stock shall be made
by the Trustee from time to time, at the lowest price
obtainable at the date and time of purchase, out of any
funds held by the Trust and earmarked for such purchases
under the Plan. If the Company wishes to sell the Trust
such shares, out of authorized and unissued shares of Common
Stock, the price of such purchase on a particular date shall
be the closing price on the New York Stock Exchange on such
date; or, if the New York Stock Exchange is closed on such
allocation date, the closing price on the last preceding
trading date. Otherwise, subject to the above provisions,
the Trustee may, but is not required to, purchase such
shares by private purchase, in such amounts and at such
times as the Trustee may determine appropriate in its
absolute and unrestricted discretion.
The Trustee, upon direction by the Plan Administrator
and subject to the provisions of Article III, shall hold for
the purpose of allocation to the Accounts of Participants
any shares of Common Stock forfeited under the provisions of
the Plan. All shares of Common Stock purchased by the
Trustee shall be carried in the accounts of the Trustee at
the actual cost thereof, including taxes, commissions and
other expenses, if any, incident to the purchase, except
that shares of Common Stock acquired upon the exercise of
rights, options or warrants shall be carried at the Current
Market Value thereof on the date of such exercise. Shares
of Common Stock that are forfeited by Participants shall be
deemed to have been purchased by the Trustee on the Daily
Valuation Date coinciding with the date of such forfeiture
and reallocation at the Current Market Value on such Daily
Valuation Date.
10. Section 7.08 is hereby added to the Plan, to read
as follows:
7.08 Registration of Common Stock
All shares of Common Stock purchased by the
Trustee under the Plan shall be issued either in the nominee
name or in the name of the "Trustee for the HRH Frozen
Merger and Acquisition Plan Trust", and the books and
records of the Trustee shall at all times show that such
investments are part of the Trust Fund. Legal title to all
shares of Common Stock allocated to Participants' Accounts
shall remain in the name of the Trustee until the
Participants shall become entitled thereto as otherwise set
forth in the Plan. The Trustee, at its election, may
actually deal in and account, for the Trust as a whole, in
whole shares only; however, this shall not prohibit the Plan
Administrator from crediting to Participants' accounts
fractional shares for all Plan accounting purposes.
11. Section 7.09 is hereby added to the Plan, to read
as follows:
7.09 Repurchase of Common Stock
At or after the date any shares of Common Stock
are received by a Participant or his Beneficiary, such
person or persons may offer to sell to the Trustee all or
any part of the shares of Common Stock so distributed. If
such offer is made within six (6) months after such date,
then, to the extent funds are available for investment by
the Trustee, the Trustee is permitted, but is not required
to, purchase any shares of Common Stock so offered, at the
Current Market Value on the date such offer is received in
writing by the Trustee.
12. Section 7.10 is hereby added to the Plan, to read
as follows:
7.10 Warrants, Rights and Options
A Participant shall have no right to request,
direct or demand the Trustee to exercise, on the
Participant's behalf, any rights, warrants or options issued
with respect to Common Stock credited to the Participant's
accounts; and, the Trustee, in its discretion, may exercise
or sell any such rights, warrants or options, except any
rights which by their terms cannot be separated from such
Common Stock. In the event such warrants, rights or options
are sold, the accounts of each Participant of the Plan
otherwise invested in the Common Stock Fund shall be
credited with the appropriate proportionate share of the
proceeds. In the event such warrants, rights or options are
exercised by the Trustee, each Participant's accounts
invested in the Common Stock Fund shall be credited with the
appropriate number of such shares thereby acquired, based on
the shares credited to the Participant's accounts with
respect to which such warrants, rights and options were
issued.
13. Section 7.11 is hereby added to the Plan, to read
as follows:
7.11 Common Stock Dividends and Common Stock Splits
Except as otherwise specifically administered
under any plan suspense account, Common Stock received by
the Trustee by reason of a stock dividend or stock split
shall be credited within the current Plan Year to each
Participant's accounts invested in the Common Stock Fund,
based on the shares credited to the Participant's accounts
as of the Daily Valuation Date preceding the date such
dividend or split is declared.
14. Section 7.12 is hereby added to the Plan, to read
as follows:
7.12 Investment of Dividend Income
Dividends on Common Stock collected by the
Trustee, and earnings on any temporary investment of cash
earmarked for investment in Common Stock, shall be held and
invested in Common Stock in accordance with Section 7.06.
Common Stock received by the Trustee by reasons of a
stock dividend or stock split shall be credited to each
Participant's Account based on the shares credited to his
account as of the Daily Valuation Date preceding the date
such dividend or split is declared. Cash dividends on
Common Stock, and earnings on any temporary investments of
cash earmarked for investment in Common Stock, shall be
invested in Common Stock, except if and as otherwise
provided under this Article VII.
15. Section 7.13 is hereby added to the Plan, to read
as follows:
7.13 Voting of Common Stock
Before each annual or special meeting of the
shareholders of the Corporation, the Corporation and the
Plan Administrator, in conjunction with the Trustee, shall
furnish each Participant, who invests in the Common Stock
Fund under his accounts, with a copy of the proxy
solicitation material for such meeting, together with a form
addressed to the Trustee requesting the Participant's
confidential instructions on how the aggregate whole shares
credited to such Participant under the Common Stock Fund,
determined as of the Daily Valuation Date most recently
preceding the record date for which exact Account Balances
are readily available, should be voted.
Upon receipt of valid instructions, the Trustee shall
vote such Common Stock as instructed, or not vote such
Common Stock if so directed by the Participant. Any shares
of Common Stock held by the Trustee in suspense, or as to
which the Trustee receives no valid voting instructions,
shall be voted by the Trustee in the same proportion as the
Trustee has received directions from the Participants,
unless the Trustee is directed otherwise by the Investment
Fiduciary or unless the Trustee otherwise determines that
voting such shares on such a "mirror" proportional basis, or
in accordance with the Investment Fiduciary's directions, is
clearly imprudent. In such event, the Trustee shall
determine how such shares shall be voted.
16. Section 7.14 is hereby added to the Plan, to read
as follows:
7.14 Tendering of Common Stock by Trustee
In the event of any tender offer for any shares of
Common Stock, the Corporation and the Plan Administrator, in
conjunction with the Trustee, shall furnish each Participant
with a form for the Participant's direction to the Trustee
as to whether any of the aggregate whole shares credited to
his accounts should be tendered. Upon receipt of such
direction from each Participant, the Trustee shall tender or
not tender such shares, as designated in such direction.
The Trustee shall tender only such Participant shares for
which the Trustee has received valid and timely instructions
to tender.
If within a reasonable time the Trustee does not
receive a valid direction with respect to any Participant's
shares under the Plan, or otherwise holds any shares in
suspense accounts, the Trustee shall tender or not tender
such shares in proportion to the Participant directions to
tender and not tender, or otherwise in accordance with the
specific directions of the Investment Fiduciary. If,
however, the Trustee otherwise determines that tendering
such shares on a proportional basis, or in accordance with
any Investment Fiduciary direction, is clearly imprudent,
then the Trustee shall tender or not tender such shares as
the Trustee otherwise deems prudent. In connection with
these decisions, the Trustee shall consider the financial
interests of the Participants and Beneficiaries with respect
to the Common Stock Fund.
Otherwise, all tender instructions received by the
Trustee from a Participant shall be held in confidence by
the Trustee and shall not be divulged or released to any
person, including directors, officers and employees of the
Corporation, any affiliated company or any person making the
offer.
17. Section 7.15 is hereby added to the Plan, to read
as follows:
7.15 Restriction on Amendment of Contribution and
Allocation Provisions
Notwithstanding any provision of Article VII or
other provision of the Plan to the contrary, the Corporation
shall not amend the provisions of the Plan controlling the
provision and allocation of contributions made or invested
in the Common Stock of the Corporation more than once every
six (6) months, or as otherwise required under the current
restrictions of the Securities and Exchange Commission,
other than for amendments necessary to comport with changes
in the Internal Revenue Code, Internal Revenue Service
requirements, ERISA or Department of Labor requirements.
18. Section 7.16 is hereby added to the Plan, to read
as follows:
7.16 Amendments Necessary to Comply with Section 16 or
other Securities Law Requirements
Notwithstanding any provision herein to the
contrary, the Corporation, with or without consultation with
the Plan Administrator, shall retain the unrestricted right
to amend the provisions of the Plan as necessary to comply
with the current provisions of Section 16 of the Securities
Exchange Act of 1934, as amended, and any other applicable
securities laws, regulations and interpretations.
19. Section 7.17 is hereby added to the Plan, to read
as follows:
7.17 Administration Necessary to Comply with Section 16
or other Securities Law Requirements
The Plan Administrator shall have the unrestricted
operational discretion and authority to impose such
additional Plan rules, restrictions and limitations on those
Participants subject to Section 16 of the Securities
Exchange Act of 1934 or any other applicable securities
laws, regulations and interpretations, as it shall deem
necessary or advisable to comply with the provisions of Rule
16(b)-3 or such other securities laws, regulations and
interpretations.
20. No other provisions of the Plan are hereby
amended.
January 20, 1998
Board of Directors
Hilb, Rogal and Hamilton Company
Dear Sirs:
This letter is delivered to you in connection with the
actions taken and proposed to be taken by Hilb, Rogal and
Hamilton Company, a Virginia corporation (the "Company"), with
respect to the offer and sale from time to time pursuant to the
Hilb, Rogal and Hamilton Company Profit Sharing Savings Plan and
the HRH Frozen Merger and Acquisition Plan (the "Plans"), of up
to 1,000,000 shares of the Company's Common Stock, without par
value (the "Shares"). The Shares to be issued pursuant to the
Plans may be acquired directly from the Company (the "Original
Issue Common Stock") or in the open market. As counsel to the
Company, I have reviewed the registration statement on Form S-8
(the "Registration Statement") to be filed by the Company with
the Securities and Exchange Commission to effect the registration
of the Shares under the Securities Act of 1933 (the "Act").
In this regard, I have examined the Articles of
Incorporation, as amended, and By-Laws of the Company, as
amended, records of proceedings of the Board of Directors of the
Company, the Plans and such other records and documents as I have
deemed necessary or advisable in connection with the opinions set
forth herein.
Based upon my examination, I am of the opinion that the
Shares which are Original Issue Common Stock will, when issued
pursuant to the terms and conditions of the Plan, be validly
issued, fully paid and nonassessable. The foregoing opinion is
limited to the laws of the Commonwealth of Virginia and I express
no opinion as to the effect of the laws of any other
jurisdiction.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to me under
the caption "Interests of Names Experts and Counsel" in the
Registration Statement. Further, I presently serve the Company
as Vice President, General Counsel and Assistant Secretary.
Very truly yours,
/s/Walter L. Smith
Walter L. Smith
Vice President, GeneralCounsel and
Assistant Secretary
Exhibit 23.2
Consent of Ernst & Young LLP
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Hilb,Rogal and Hamilton
Company Profit Sharing Savings Plan and the HRH Frozen Merger
and Acquisition Plan of our report dated February 12, 1997,
with respect to the consolidated financial statements and
schedule of Hilb, Rogal and Hamilton Company included in its
Annual Report (Form 10-K) for the year ended December 31,
1996, filed with the Securities and Exchange Commission.
/S/ERNST & YOUNG LLP
Richmond, Virginia
January 16, 1998
