As filed with the Securities and Exchange Commission on July 23, 1999
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EGLOBE, INC.
------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 13-3486241
---------- ------------
(State or other jurisdiction (I.R.S. employer)
of incorporation or organization) identification No.
EGLOBE, INC.
2000 PENNSYLVANIA AVENUE, N.W., SUITE 4800
WASHINGTON, D.C. 20006
(Address of principal executive offices)
EGLOBE, INC.
401(K) PROFIT SHARING PLAN
------------------------------------
(Full title of the plan)
CHRISTOPHER J. VIZAS, II
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
EGLOBE, INC.
2000 PENNSYLVANIA AVENUE, N.W., SUITE 4800
WASHINGTON, D.C. 20006
(303) 691-2115
--------------------------------------------------------------
(Name, address and telephone number, including area code, of agent for service)
Copy to:
STEVEN M. KAUFMAN, ESQ.
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004
(202) 637-5600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED (1) SHARE (2) PRICE (2) REGISTRATION FEE
<S> <C> <C> <C> <C>
=========================================================================================================================
COMMON STOCK, PAR VALUE
$.001 100,000 $2.6875 $268,750 $74.73
=========================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Estimated pursuant to Rule 457(h) solely for purposes of calculating the
amount of the registration fee.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Documents containing the information required to be provided in this
Part I will be separately sent or given to employees participating in the
eGlobe, Inc. 401(k) Profit Sharing Plan (the "Plan"), as contemplated by Rule
428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act").
In accordance with the instructions to Part I of Form S-8, such documents will
not be filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
eGlobe, Inc., formerly known as Executive TeleCard, Ltd. (the
"Registrant"), hereby incorporates by reference into this Registration Statement
the following documents:
(a) The Registrant's Annual Report on Form 10-K for the nine months
ended December 31, 1998;
(b) All reports filed by the Registrant with the Commission under
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since December 31, 1998;
(c) The description of the Registrant's common stock, $.001 par value
per share ("Common Stock"), contained in the Registrant's
Registration Statement on Form 8-A filed with the Commission on
March 30, 1989 and as amended on Form 8-A on April 14, 1989; and
(d) All documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities remaining unsold.
The Plan hereby incorporates by reference into this Registration
Statement all documents subsequently filed by the Plan pursuant to Section
13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities remaining unsold.
Any statement contained in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded to the
extent that a statement contained in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such prior statement. The documents required to be so modified or
superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
To the extent that any proxy statement is incorporated by reference
herein, such incorporation shall not include any information contained in such
proxy statement which is not, pursuant to the Commission's rules, deemed to be
"filed" with the Commission or subject to the liabilities of Section 18 of the
Exchange Act.
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The Common Stock is registered under Section 12 of the
Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law ("DGCL"), a
corporation may indemnify its directors, officers, employees and agents and its
former directors, officers, employees and agents and those who serve, at the
corporation's request, in such capacities with another enterprise, against
expenses (including attorneys' fees), as well as judgments, fines and
settlements in nonderivative lawsuits, actually and reasonably incurred in
connection with the defense of any action, suit or proceeding in which they or
any of them were or are made parties or threatened to be made parties by reason
of their serving or having served in such capacity. The DGCL provides, however,
that such person must have acted in good faith and in a manner such person
reasonably believed to be in (or not opposed to) the best interests of the
corporation and, in the case of a criminal action, such person must have had no
reasonable cause to believe his or her conduct was unlawful. In addition, the
DGCL does not permit indemnification in any action or suit by or in the right of
the corporation, where such person has been adjudged liable to the corporation,
unless, and only to the extent that, a court determines that such person fairly
and reasonably is entitled to indemnity for costs the court deems proper in
light of liability adjudication. Indemnity is mandatory to the extent a claim,
issue or matter has been successfully defended.
The Registrant's Restated Certificate of Incorporation, as amended
(the "Restated Certificate"), provides that a director of the Registrant shall
not be personally liable to the Registrant or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL, or (iv) for any transaction from which the director derived an
improper personal benefit. If the DGCL is amended to authorize corporate action
further eliminating or limiting the personal liability of directors, the
Restated Certificate provides that the liability of a director of the Registrant
shall be eliminated or limited to the fullest extent permitted by the DGCL, as
so amended.
In addition, the Restated Certificate provides that each person who
was or is made a party or is threatened to be made a party to or is involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "proceeding"), by reason of the fact that he or she, or a
person of whom he or she is a legal representative, is or was a director or
officer of the Registrant or is or was serving at the request of the Registrant
as a director or officer of another Registrant or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether the basis of such proceeding is alleged action or
inaction in an official capacity as a director or officer or in any other
capacity while serving as a director or officer, shall be indemnified and held
harmless by the Registrant to the fullest extent authorized by the DGCL, as the
same exists or may be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Registrant to provide broader
indemnification rights than said law permitted the Registrant to provide prior
to such amendment), against all expense, liability and loss (including
attorney's fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director or officer and shall
<PAGE>
inure to the benefit of his or hers heirs, executors and administrators;
provided, however, that, except as provided above, the Registrant will indemnify
any such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Registrant. The Restated Certificate
provides further that the right to indemnification described above is a contract
right and includes the right to be paid by the Registrant the expenses incurred
in defending any such proceeding in advance of its final disposition; provided,
however, that, if the DGCL requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer of the
Registrant (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Registrant of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this Section or otherwise. The Restated
Certificate also provides that the Registrant may, by action of its Board of
Directors, provide indemnification to employees and agents of the Registrant,
and to a person who is or was serving at the request of the Registrant as an
employee or agent of another Registrant or of a partnership, joint venture,
trust or other enterprise, with the same scope and effect as the foregoing
indemnification of directors and officers.
* * *
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions or otherwise, the Registrant has been
advised that, in the opinion of the Commission, such indemnification is against
public policy as expressed in the Securities Act and therefore is unenforceable.
In the event that a claim for indemnification against such liabilities (other
than for the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question of whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
<PAGE>
ITEM 8. EXHIBITS.
Exhibit
Number Description
------- ------------
* 5.1 Internal Revenue Service determination letter.
*10.1 eGlobe, Inc. 401(k) Profit Sharing Plan.
*23.1 Consent of BDO Seidman, LLP.
*23.2 Consent of PricewaterhouseCoopers LLP.
*24.1 Power of Attorney (included on signature page).
- -------------------
* Filed herewith.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
Provided, however, that paragraphs (a)(i) and (a)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8,
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the
Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
<PAGE>
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
The undertaking concerning indemnification is set forth under the
response to Item 6.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Washington, D.C., on July 22, 1999.
eGLOBE, INC.
By:/s/ Christopher J. Vizas, II
----------------------------
Christopher J. Vizas, II
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Christopher J. Vizas, II, John E. Koonce,
III and Anne E. Haas, jointly and severally, each in his own capacity, his true
and lawful attorneys-in-fact, with full power of substitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
with full power and authority to do so and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
------------ -------- -------
<S> <C> <C>
/s/ Christopher J. Vizas, II
- ------------------------------- Chairman, Chief Executive Officer and
Christopher J. Vizas, II Director (Principal Executive Officer) July 22, 1999
/s/ John E. Koonce, III
- ------------------------------ Chief Financial Officer (Principal
John E. Koonce, III Financial Officer) July 22, 1999
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
------------ -------- -------
<S> <C> <C>
/s/ Anne E. Haas
- ------------------------------ Controller and Treasurer (Principal
Anne E. Haas Accounting Officer) July 22, 1999
/s/ David W. Warnes-
- ------------------------------ Director July 22, 1999
David W. Warnes
- ------------------------------ Director July ___, 1999
Richard H. Krinsley
/s/ Donald H. Sledge
- ------------------------------ Director July 22, 1999
Donald H. Sledge
/s/ James O. Howard
- ------------------------------ Director July 22, 1999
James O. Howard
- ------------------------------ Director July ___, 1999
Richard Chiang
- ------------------------------ Director July ___, 1999
John H. Wall
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
------ --------------
* 5.1 Internal Revenue Service determination letter.
*10.1 eGlobe, Inc. 401(k) Profit Sharing Plan.
*23.1 Consent of BDO Seidman, LLP.
*23.2 Consent of PricewaterhouseCoopers LLP.
*24.1 Power of Attorney (included on signature page).
- -----------------
* Filed herewith.
EXHIBIT 5.1
Internal Revenue Service Department of the Treasury
District Director SeqNr: 0035527
Cincinnati Service Center Letter 835 (DO/CG)
P.O. Box 2508
Cincinnati, OH 45201 Employer Identification Number:
13-3486421 DLN:
Date: September 30, 1998 17007209019008
Person to Contact: CINDY PERRY
EXECUTIVE TELECARD LTD Contact Telephone Number:
C/O LAURA J VAN DOMELEN (513) 241-5199
MILLIMAN & ROBERTSON INC Plan Name:
1099 EIGHTEENTH ST STE 3100 EXECUTIVE TELECARD LTD 401K
DENVER, CO 80202-2431 PROFIT SHARING PLAN
Plan Number:
001
Dear Applicant:
We have made a favorable determination on your plan, identified above, based on
the information supplied. Please keep this letter in your permanent records.
Continued qualification of the plan under its present form will depend on its
effect in operation. (See section 1.401-1(b)(3) of the Income Tax Regulations.)
We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable determination
letter, points out some events that may affect the qualified status of your
employee retirement plan, and provides information on the reporting requirements
for your plan. It also describes some events that automatically nullify it. It
is very important that you read the publication.
This letter relates only to the status of your plan under the Internal Revenue
Code. It is not a determination regarding the effect of other federal or local
statutes.
This determination letter is applicable for the amendment(s) executed on May 1,
1998.
This determination letter is applicable for the plan adopted on December 26,
1995.
This plan has been mandatorily disaggregated, permissively aggregated, or
restructured to satisfy the nondiscriminatory requirements.
This plan satisfies the nondiscrimination in amount requirement of section
1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based safe
harbor described in the regulations.
This plan satisfies the nondiscriminatory current availability requirements of
section 1.401(a)(4)-4(b) of the regulations with respect to those benefits,
rights and features that are currently available to all employees in the plan's
coverage group. For this purpose, the plan's coverage group consists of those
employees treated as currently benefitting for purposes of demonstrating that
the plan satisfies the minimum coverage requirements of section 410(b) of the
Code.
<PAGE>
Except as otherwise specified in an opinion or notification letter regarding
this plan, this letter may not be relied upon with respect to whether the plan
satisfies the changes in the qualification requirements made by the Uruguay
Round Amendments Act (GATT) Pub. L. 103-465, the Taxpayer Relief Act of 1997
Pub. L. 105-34, and the changes in the qualification requirements of the Small
Business Job Protection Act of 1996 Pub. L. 104-188 other than the requirements
of Code section 401(a)(26).
The information on the enclosed Publication 794 is an integral part of this
determination. Please be sure to read and keep it with this letter.
The requirement for employee benefit plans to file summary plan descriptions
(SPD) with the U.S. Department of Labor was eliminated effective August 5, 1997.
For more details, call 1-800-998-7542 for a free copy of the SPD card.
We have sent a copy of this letter to your representative as indicated in the
power of attorney.
If you have questions concerning this matter, please contact the person whose
name and telephone number are shown above.
Sincerely yours,
/s/ C. ASHLEY BULLARD
----------------------
C. ASHLEY BULLARD
District Director
Enclosures:
Publication 794
Letter 835 (DO/CG)
EXHIBIT 10.1
ADOPTION AGREEMENT #005
NONSTANDARDIZED CODE SS.401(K) PROFIT SHARING PLAN
The undersigned, Executive Telecard LTD. ("Employer"), by executing
this Adoption Agreement elects to become a participating Employer in the
Milliman & Robertson, Inc. Defined Contribution Prototype Plan (basic plan
document #01) by adopting the accompanying Plan and Trust in full as if the
Employer were a signatory to that Agreement. The Employer makes the following
elections granted under the provisions of the Prototype Plan.
ARTICLE I
DEFINITIONS
1.02 TRUSTEE. The Trustee executing this Adoption Agreement is:
(Choose (a) or (b))
[ X ](a) A discretionary Trustee. See Section 10.03[A] of the Plan.
[ ](b) A nondiscretionary Trustee. See Section 10.03[B] of the Plan. [Note:
The Employer may not elect Option (b) if a Custodian executes the
Adoption Agreement.]
1.03 PLAN. The name of the Plan as adopted by the Employer is
Executive Telecard LTD. 401(k) Profit Sharing Plan & Trust.
1.07 EMPLOYEE. The following Employees are not eligible to participate
in the Plan: (Choose (a) or at least one of (b) through (g))
[ ](a) No exclusions.
[ X ](b) Collective bargaining employees (as defined in Section 1.07 of the
Plan). [Note: If the Employer excludes union employees from the Plan,
the Employer must be able to provide evidence that retirement benefits
were the subject of good faith bargaining.]
[ ](c) Nonresident aliens who do not receive any earned income (as defined in
Code ss.911(d)(2)) from the Employer which constitutes United States
source income (as defined in Code ss.861(a)(3)).
[ ](d) Commission Salesmen.
[ ](e) Any Employee compensated on a salaried basis.
[ ](f) Any Employee compensated on an hourly basis.
[ ](g) Seasonal Piece Workers
LEASED EMPLOYEES. Any Leased Employee treated as an Employee under Section 1.31
of the Plan, is: (Choose (h) or (i))
[ X ](h) Not eligible to participate in the Plan.
[ ](i) Eligible to participate in the Plan, unless excluded by reason of an
exclusion classification elected under this Adoption Agreement Section
1.07.
RELATED EMPLOYERS. If any member of the Employer's related group (as defined in
Section 1.30 of the Plan) executes a Participation Agreement to this Adoption
Agreement, such member's Employees are eligible to
<PAGE>
participate in this Plan, unless excluded by reason of an exclusion
classification elected under this Adoption Agreement Section 1.07. In addition:
(Choose (j) or (k))
[ X ] (j) No other related group member's Employees are eligible to
participate in the Plan.
[ ] (k) The following nonparticipating related group member's Employees
are eligible to participate in the Plan unless excluded by reason of
an exclusion classification elected under this Adoption Agreement
Section 1.07: ________________
.
1.12 COMPENSATION.
TREATMENT OF ELECTIVE CONTRIBUTIONS. (Choose (a) or (b))
[ X ] (a) "Compensation" includes elective contributions made by the Employer on
the Employee's behalf.
[ ] (b) "Compensation" does not include elective contributions.
MODIFICATIONS TO COMPENSATION DEFINITION. (Choose (c) or at least one of (d)
through (j))
[ ] (c) No modifications other than as elected under Options (a) or (b).
[ ] (d) The Plan excludes Compensation in excess of $_____________.
[ X ] (e) In lieu of the definition in Section 1.12 of the Plan, Compensation
means any earnings reportable as W-2 wages for Federal income tax
withholding purposes, subject to any other election under this
Adoption Agreement Section 1.12.
[ ] (f) The Plan excludes bonuses.
[ ] (g) The Plan excludes overtime.
[ ] (h) The Plan excludes Commissions.
[ ] (i) Compensation will not include Compensation from a related employer (as
defined in Section 1.30 of the Plan) that has not executed a
Participation Agreement in this Plan unless, pursuant to Adoption
Agreement Section 1.07, the Employees of that related employer are
eligible to participate in this Plan.
[ ] (j) (Specify)
If, for any Plan Year, the Plan uses permitted disparity in the contribution or
allocation formula elected under Article III, any election of Options (f), (g),
(h) or (j) is ineffective for such Plan Year with respect to any Nonhighly
Compensated Employee.
SPECIAL DEFINITION FOR MATCHING CONTRIBUTIONS. "Compensation" for purposes of
any matching contribution formula under Article III means: (Choose (k) or (l)
only if applicable)
[ X ] (k) Compensation as defined in this Adoption Agreement Section 1.12.
[ ] (l) (Specify) _________________.
SPECIAL DEFINITION FOR SALARY REDUCTION CONTRIBUTIONS. An Employee's salary
reduction agreement applies to his Compensation determined prior to the
reduction authorized by that salary reduction agreement, with the following
exceptions: (Choose (m) or at least one of (n) or (o), if applicable)
[ ] (m) No exceptions.
<PAGE>
[ ] (n) If the Employee makes elective contributions to another plan
maintained by the Employer, the Advisory Committee will determine the
amount of the Employee's salary reduction contribution for the
withholding period: (Choose (1) or (2))
[ ] (1) After the reduction for such period of elective contributions
to the other plan(s).
[ ] (2) Prior to the reduction for such period of elective
contributions to the other plan(s).
[ X ] (o) (Specify) Same exclusions specified in 1.12 above.
1.17 PLAN YEAR/LIMITATION YEAR.
PLAN YEAR. Plan Year means: (Choose (a) or (b))
[ X ] (a) The 12 consecutive month period ending every December 31.
[ ] (b) Other _____________________________.
LIMITATION YEAR. The Limitation Year is: (Choose (c) or (d))
[ X ] (c) The Plan Year.
[ ] (d) The 12 consecutive month period ending every ___________________.
1.18 EFFECTIVE DATE.
NEW PLAN. The "Effective Date" of the Plan is ___________________.
RESTATED PLAN. The restated Effective Date is April 1, 1998, original effective
date January 1, 1996.
1.27 HOUR OF SERVICE. The crediting method for Hours of Service is:
(Choose (a) or (b))
[ X ] (a) The actual method.
[ ] (b) The ____________________________________ equivalency method, except:
[ ] (1) No exceptions.
[ ] (2) The actual method applies for purposes of: (Choose at least
one)
[ ] (i) Participation under Article II.
[ ] (ii) Vesting under Article V.
[ ] (iii) Accrual of benefits under Section 3.06.
[Note: On the blank line, insert "daily," "weekly," "semi-monthly payroll
periods" or "monthly."]
1.29 SERVICE FOR PREDECESSOR EMPLOYER. In addition to the predecessor
service the Plan must credit by reason of Section 1.29 of the Plan, the
Plan credits Service with the following predecessor employer(s): N/A
<PAGE>
[ ] (a) For purposes of participation under Article II.
[ ] (b) For purposes of vesting under Article V.
[ ] (c) Except the following Service: ________________.
[Note: If the Plan does not credit any predecessor service under this provision,
insert "N/A" in the first blank line. The Employer may attach a schedule to this
Adoption Agreement, in the same format as this Section 1.29, designating
additional predecessor employers and the applicable service crediting
elections.]
1.31 LEASED EMPLOYEES. If a Leased Employee is a Participant in the
Plan and also participates in a plan maintained by the leasing
organization: (Choose (a) or (b)) N/A
[ ] (a) The Advisory Committee will determine the Leased Employee's allocation
of Employer contributions under Article III without taking into
account the Leased Employee's allocation, if any, under the leasing
organization's plan.
[ ] (b) The Advisory Committee will reduce a Leased Employee's allocation of
Employer nonelective contributions (other than designated qualified
nonelective contributions) under this Plan by the Leased Employee's
allocation under the leasing organization's plan, but only to the
extent that allocation is attributable to the Leased Employee's
service provided to the Employer. The leasing organization's plan:
[ ] (1) Must be a money purchase plan which would satisfy the
definition under Section 1.31 of a safe harbor plan, irrespective of
whether the safe harbor exception applies.
[ ] (2) Must satisfy the features and, if a defined benefit plan, the
method of reduction described in an addendum to this Adoption
Agreement, numbered 1.31.
ARTICLE II
EMPLOYEE PARTICIPANTS
2.01 ELIGIBILITY.
ELIGIBILITY CONDITIONS. To become a Participant in the Plan, an Employee must
satisfy the following eligibility conditions: (Choose (a) or (b) or both; (c) is
optional as an additional election)
[ X ] (a) Attainment of age 21 (specify age, not exceeding 21).
[ X ] (b) Service requirement. (Choose one of (1) through (3))
[ ] (1) One Year of Service.
[ X ] (2) 3 months (not exceeding 12) following the Employee's
Employment Commencement Date.
[ ] (3) One Hour of Service.
[ X ] (c) Special requirements for non-401(k) portion of plan. (Make elections
under (1) and under (2))
(1) The requirements of this Option (c) apply to participation in:
(Choose at least one of (i) through (iii))
<PAGE>
[X] (i) The allocation of Employer nonelective contributions and
Participant forfeitures.
[X] (ii)The allocation of Employer matching contributions
(including forfeitures allocated as matching contributions).
[X] (iii)The allocation of Employer qualified nonelective
contributions.
(2) For participation in the allocations described in (1), the
eligibility conditions are: (Choose at least one of (i) through (iv))
[X] (i) One (one or two) Year(s) of Service, without an intervening
Break in Service (as described in Section 2.03(A) of the Plan) if
the requirement is two Years of Service.
[ ] (ii) months (not exceeding 24) following the Employee's
Employment Commencement Date.
[ ] (iii) One Hour of Service.
[ ] (iv) Attainment of age (Specify age, not exceeding 21).
PLAN ENTRY DATE. "Plan Entry Date" means the Effective Date and: (Choose (d),
(e) or (f))
[ ] (d) Semi-annual Entry Dates. The first day of the Plan Year and the first
day of the seventh month of the Plan Year.
[ ] (e) The first day of the Plan Year.
[ X ] (f) (Specify entry dates) The first day of each Calendar Quarter (January
1, April 1, July 1, and October 1).
TIME OF PARTICIPATION. An Employee will become a Participant (and, if
applicable, will participate in the allocations described in Option (c)(1)),
unless excluded under Adoption Agreement Section 1.07, on the Plan Entry Date
(if employed on that date): (Choose (g), (h) or (i))
[ X ] (g) immediately following
[ ] (h) immediately preceding
[ ] (i) nearest
the date the Employee completes the eligibility conditions described in Options
(a) and (b) (or in Option (c)(2) if applicable) of this Adoption Agreement
Section 2.01. [Note: The Employer must coordinate the selection of (g), (h) or
(i) with the "Plan Entry Date" selection in (d), (e) or (f). Unless otherwise
excluded under Section 1.07, the Employee must become a Participant by the
earlier of: (1) the first day of the Plan Year beginning after the date the
Employee completes the age and service requirements of Code ss.410(a); or (2) 6
months after the date the Employee completes those requirements.]
DUAL ELIGIBILITY. The eligibility conditions of this Section 2.01 apply to:
(Choose (j) or (k))
[ X ] (j) All Employees of the Employer, except: (Choose (1) or (2))
[ X ] (1) No exceptions.
[ ] (2) Employees who are Participants in the Plan as of the Effective
Date.
<PAGE>
[ ] (k) Solely to an Employee employed by the Employer after . If the Employee
was employed by the Employer on or before the specified date, the
Employee will become a Participant: (Choose (1), (2) or (3))
[ ] (1) On the latest of the Effective Date, his Employment
Commencement Date or the date he attains age (not to exceed 21).
[ ] (2) Under the eligibility conditions in effect under the Plan
prior to the restated Effective Date. If the restated Plan
required more than one Year of Service to participate, the
eligibility condition under this Option (2) for participation in
the Code ss.401(k) arrangement under this Plan is one Year of
Service for Plan Years beginning after December 31, 1988. [For
restated plans only]
[ ] (3) (Specify) ___________________________________________.
2.02 YEAR OF SERVICE-PARTICIPATION.
HOURS OF SERVICE. An Employee must complete: (Choose (a) or (b))
[ X ] (a) 1,000 Hours of Service
[ ] (b) Hours of Service
during an eligibility computation period to receive credit for a Year of
Service. [Note: The Hours of Service requirement may not exceed 1,000.]
ELIGIBILITY COMPUTATION PERIOD. After the initial eligibility computation period
described in Section 2.02 of the Plan, the Plan measures the eligibility
computation period as: (Choose (c) or (d))
[ ] (c) The 12 consecutive month period beginning with each anniversary of an
Employee's Employment Commencement Date.
[ X ] (d) The Plan Year, beginning with the Plan Year which includes the first
anniversary of the Employee's Employment Commencement Date.
2.03 BREAK IN SERVICE - PARTICIPATION. The Break in Service rule
described in Section 2.03(B) of the Plan: (Choose (a) or (b))
[ X ] (a) Does not apply to the Employer's Plan.
[ ] (b) Applies to the Employer's Plan.
2.06 ELECTION NOT TO PARTICIPATE. The Plan: (Choose (a) or (b))
[X] (a) Does not permit an eligible Employee or a Participant to
elect not to participate.
[ ] (b) Does permit an eligible Employee or a Participant to elect
not to participate in accordance with Section 2.06 and with the
following rules: (Complete (1), (2), (3) and (4))
(1) An election is effective for a Plan Year if filed no later
than .
(2) An election not to participate must be effective for at least
all Plan Year(s).
(3) Following a re-election to participate, the Employee or
Participant:
[ ] (i) May not again elect not to participate for any subsequent Plan
Year.
<PAGE>
[ ] (ii) May again elect not to participate, but not earlier than the
Plan Year following the Plan Year in which the re-election first
was effective.
(4) (Specify)
[Insert "N/A" if no other rules apply].
ARTICLE III
EMPLOYER CONTRIBUTIONS AND FORFEITURES
3.01 AMOUNT.
PART I. [OPTIONS (A) THROUGH (G)] AMOUNT OF EMPLOYER'S CONTRIBUTION. The
Employer's annual contribution to the Trust will equal the total amount of
deferral contributions, matching contributions, qualified nonelective
contributions and nonelective contributions, as determined under this Section
3.01. (Choose any combination of (a), (b), (c) and (d), or choose (e))
[ X ] (a) DEFERRAL CONTRIBUTIONS (CODE SS.401(K) ARRANGEMENT). (Choose (1) or
(2) or both)
[X] (1) Salary reduction arrangement. The Employer must contribute
the amount by which the Participants have reduced their
Compensation for the Plan Year, pursuant to their salary
reduction agreements on file with the Advisory Committee. A
reference in the Plan to salary reduction contributions is a
reference to these amounts.
[ ] (2) Cash or deferred arrangement. The Employer will contribute
on behalf of each Participant the portion of the
Participant's proportionate share of the cash or deferred
contribution which he has not elected to receive in cash.
See Section 14.02 of the Plan. The Employer's cash or
deferred contribution is the amount the Employer may from
time to time deem advisable which the Employer designates as
a cash or deferred contribution prior to making that
contribution to the Trust.
[ X ] (b) MATCHING CONTRIBUTIONS. The Employer will make matching contributions
in accordance with the formula(s) elected in Part II of this Adoption
Agreement Section 3.01.
[ X ] (c) DESIGNATED QUALIFIED NONELECTIVE CONTRIBUTIONS. The Employer, in its
sole discretion, may contribute an amount which it designates as a
qualified nonelective contribution.
[ X ] (d) NONELECTIVE CONTRIBUTIONS. (Choose any combination of (1) through (4))
[X] (1) Discretionary contribution. The amount (or additional
amount) the Employer may from time to time deem advisable.
[ ] (2) The amount (or additional amount) the Employer may from time
to time deem advisable, separately determined for each of
the following classifications of Participants: (Choose (i)
or (ii))
[ ] (i) Nonhighly Compensated Employees and Highly
Compensated Employees.
[ ] (ii) (Specify classifications) .
<PAGE>
Under this Option (2), the Advisory Committee will allocate
the amount contributed for each Participant classification
in accordance with Part II of Adoption Agreement Section
3.04, as if the Participants in that classification were the
only Participants in the Plan.
[ ] (3) % of the Compensation of all Participants under the
Plan, determined for the Employer's taxable year for which
it makes the contribution. [Note: The percentage selected
may not exceed 15%.]
[ ] (4) % of Net Profits but not more than
$___________________.
[ ] (e) FROZEN PLAN. This Plan is a frozen Plan effective______________. The
Employer will not contribute to the Plan with respect to any period
following the stated date.
NET PROFITS. The Employer: (Choose (f) or (g))
[ X ] (f) Need not have Net Profits to make its annual contribution under this
Plan.
[ ] (g) Must have current or accumulated Net Profits exceeding $_____________
to make the following contributions: (Choose at least one)
[ ] (1) Cash or deferred contributions described in Option (a)(2).
[ ] (2) Matching contributions described in Option (b), except: .
[ ] (3) Qualified nonelective contributions described in Option
(c).
[ ] (4) Nonelective contributions described in Option (d).
The term "Net Profits" means the Employer's net income or profits for any
taxable year determined by the Employer upon the basis of its books of account
in accordance with generally accepted accounting practices consistently applied
without any deductions for Federal and state taxes upon income or for
contributions made by the Employer under this Plan or under any other employee
benefit plan the Employer maintains. The term "Net Profits" specifically
excludes___________________________.
[Note: Enter "N/A" if no exclusions apply.]
If the Employer requires Net Profits for matching contributions and the Employer
does not have sufficient Net Profits under Option (g), it will reduce the
matching contribution under a fixed formula on a prorata basis for all
Participants. A Participant's share of the reduced contribution will bear the
same ratio as the matching contribution the Participant would have received if
Net Profits were sufficient bears to the total matching contribution all
Participants would have received if Net Profits were sufficient. If more than
one member of a related group (as defined in Section 1.30) execute this Adoption
Agreement, each participating member will determine Net Profits separately but
will not apply this reduction unless, after combining the separately determined
Net Profits, the aggregate Net Profits are insufficient to satisfy the matching
contribution liability. "Net Profits" includes both current and accumulated Net
Profits.
PART II. [OPTIONS (H) THROUGH (J)] MATCHING CONTRIBUTION FORMULA. [Note: If the
Employer elected Option (b), complete Options (h), (i) and (j).]
[ X ] (h) AMOUNT OF MATCHING CONTRIBUTIONS. For each Plan Year, the Employer's
matching contribution is: (Choose any combination of (1), (2), (3),
(4) and (5))
[ ] (1) An amount equal to % of each Participant's eligible
contributions for the Plan Year.
<PAGE>
[ ] (2) An amount equal to_______________ % of each Participant's
first tier of eligible contributions for the Plan Year, plus
the following matching percentage(s) for the following
subsequent tiers of eligible contributions for the Plan
Year:___________________.
[ X ](3) Discretionary formula.
[X] (i) An amount (or additional amount) equal to a matching
percentage the Employer from time to time may deem
advisable of the Participant's eligible contributions
for the Plan Year.
[ ] (ii) An amount (or additional amount) equal to a matching
percentage the Employer from time to time may deem
advisable of each tier of the Participant's eligible
contributions for the Plan Year.
[ ] (4) An amount equal to the following percentage of each
Participant's eligible contributions for the Plan Year,
based on the Participant's Years of Service:
Number of Years of Service Matching Percentage
-------------------------- ----------------------
________ _________.
________ _________.
________ _________.
________ _________.
The Advisory Committee will apply this formula by determining Years of
Service as follows: .
[ X ] (5) A Participant's matching contributions may not: (Choose (i) or (ii))
[X] (i) Exceed an amount determined by the employer each Plan
Year.
[ ] (ii) Be less than .
RELATED EMPLOYERS. If two or more related employers (as defined in Section 1.30)
contribute to this Plan, the related employers may elect different matching
contribution formulas by attaching to the Adoption Agreement a separately
completed copy of this Part II. Note: Separate matching contribution formulas
create separate current benefit structures that must satisfy the minimum
participation test of Code ss.401(a)(26).]
[ X ] (i) DEFINITION OF ELIGIBLE CONTRIBUTIONS. Subject to the requirements of
Option (j), the term "eligible contributions" means: (Choose any
combination of (1) through (3))
[X] (1) Salary reduction contributions.
[ ] (2) Cash or deferred contributions (including any part of the
Participant's proportionate share of the cash or deferred
contribution which the Employer defers without the
Participant's election).
[ ] (3) Participant mandatory contributions, as designated in
Adoption Agreement Section 4.01. See Section 14.04 of the
Plan.
[ X ] (j) AMOUNT OF ELIGIBLE CONTRIBUTIONS TAKEN INTO ACCOUNT. When determining
a Participant's eligible contributions taken into account under the
matching contributions formula(s), the following rules apply: (Choose
any combination of (1) through (4))
[ ] (1) The Advisory Committee will take into account all eligible
contributions credited for the Plan Year.
[X] (2) The Advisory Committee will disregard eligible contributions
exceeding 15% of compensation.
[ ] (3) The Advisory Committee will treat as the first tier of
eligible contributions, an amount not exceeding:____________.
<PAGE>
The subsequent tiers of eligible contributions are:______________.
[ ] (4) (Specify)_________________.
PART III. [OPTIONS (K) AND (L)]. SPECIAL RULES FOR CODE SS.401(K) ARRANGEMENT.
(Choose (k) or (l), or both, as applicable)
[ X ] (k) SALARY REDUCTION AGREEMENTS. The following rules and restrictions
apply to an Employee's salary reduction agreement: (Make a selection
under (1), (2), (3) and (4))
(1) Limitation on amount. The Employee's salary reduction
contributions: (Choose (i) or at least one of (ii) or (iii))
[X] (i) No maximum limitation other than as provided in the Plan.
[ ] (ii) May not exceed 18% of Compensation for the Plan Year,
subject to the annual additions limitation described in Part 2 of
Article III and the 402(g) limitation described in Section 14.07
of the Plan.
[ ] (iii) Based on percentages of Compensation must equal at
least 2.
(2) An Employee may revoke, on a prospective basis, a salary
reduction agreement: (Choose (i), (ii), (iii) or (iv))
[ ] (i) Once during any Plan Year but not later than of the Plan
Year.
[ ] (ii) As of any Plan Entry Date.
[ ] (iii) As of the first day of any month.
[ X ] (iv) (Specify, but must be at least once per Plan Year) Anytime.
(3) An Employee who revokes his salary reduction agreement may file a
new salary reduction agreement with an effective date: (Choose
(i), (ii), (iii) or (iv))
[ ] (i) No earlier than the first day of the next Plan Year.
[X] (ii) As of any subsequent Plan Entry Date.
[ ] (iii) As of the first day of any month subsequent to the
month in which he revoked an Agreement.
[ ] (iv) (Specify, but must be at least once per Plan Year
following the Plan Year of revocation) .
(4) A Participant may increase or may decrease, on a prospective
basis, his salary reduction percentage or dollar amount: (Choose
(i), (ii), (iii) or (iv))
[ ] (i) As of the beginning of each payroll period.
[ ] (ii) As of the first day of each month.
[X] (iii) As of any Plan Entry Date.
[X] (iv) (Specify, but must permit an increase or a decrease at
least once per Plan Year) In addition, a participant may
elect to defer additional amounts from bonuses.
[ X ] (l) CASH OR DEFERRED CONTRIBUTIONS. For each Plan Year for which the
Employer makes a designated cash or deferred contribution, a
Participant may elect to receive directly in cash not more than the
following portion (or, if less, the 402(g) limitation described in
Section 14.07 of the Plan) of his proportionate share of that cash or
deferred contribution: (Choose (1) or (2))
[X] (1) All or any portion.
[ ] (2) _______________________%.
3.04 CONTRIBUTION ALLOCATION. The Advisory Committee will allocate
deferral contributions, matching contributions, qualified nonelective
contributions and nonelective contributions in accordance with Section 14.06 and
the elections under this Adoption Agreement Section 3.04.
PART I. [OPTIONS (A) THROUGH (D)]. SPECIAL ACCOUNTING ELECTIONS. (Choose
whichever elections are applicable to the Employer's Plan)
<PAGE>
[ X ](a) MATCHING CONTRIBUTIONS ACCOUNT. The Advisory Committee will allocate
matching contributions to a Participant's: (Choose (1) or (2); (3) is
available only in addition to (1))
[X] (1) Regular Matching Contributions Account.
[ ] (2) Qualified Matching Contributions Account.
[ ] (3) Except, matching contributions under Option(s)
___________________ of Adoption Agreement Section 3.01 are
allocable to the Qualified Matching Contributions Account.
[ ] (b) SPECIAL ALLOCATION DATES FOR SALARY REDUCTION CONTRIBUTIONS. The
Advisory Committee will
allocate salary reduction contributions as of the Accounting Date and
as of the following additional allocation dates: N/A _____________.
[ ] (c) SPECIAL ALLOCATION DATES FOR MATCHING CONTRIBUTIONS. The Advisory
Committee will allocate matching contributions as of the Accounting
Date and as of the following additional allocation dates: N/A _______.
[ X ] (d) DESIGNATED QUALIFIED NONELECTIVE CONTRIBUTIONS -DEFINITION OF
PARTICIPANT. For purposes of allocating the designated qualified
nonelective contribution, "Participant" means: (Choose (1), (2) or
(3)) N/A
[ ] (1) All Participants.
[X] (2) Participants who are Nonhighly Compensated Employees for the
Plan Year.
[ ] (3) (Specify)____________.
PART II. METHOD OF ALLOCATION - NONELECTIVE CONTRIBUTION. Subject to any
restoration allocation required under Section 5.04, the Advisory Committee will
allocate and credit each annual nonelective contribution (and Participant
forfeitures treated as nonelective con
tributions) to the Employer Contributions
Account of each Participant who satisfies the conditions of Section 3.06, in
accordance with the allocation method selected under this Section 3.04. If the
Employer elects Option (e)(2), Option (g)(2) or Option (h), for the first 3% of
Compensation allocated to all Participants, "Compensation" does not include any
exclusions elected under Adoption Agreement Section 1.12 (other than the
exclusion of elective contributions), and the Advisory Committee must take into
account the Participant's Compensation for the entire Plan Year. (Choose an
allocation method under (e), (f), (g) or (h); (i) is mandatory if the Employer
elects (f), (g) or (h); (j) is optional in addition to any other election.)
[ X ] (e) NONINTEGRATED ALLOCATION FORMULA. (Choose (1) or (2))
[X] (1) The Advisory Committee will allocate the annual Profit
Sharing Contributions in the same ratio that each
Participant's Compensation for the Plan Year bears to the
total Compensation of all Participants for the Plan Year.
Any other non-elective contribution shall be allocated using
the formulas stated in Schedule A.
[ ](2) The Advisory Committee will allocate the annual nonelective
contributions in the same ratio that each Participant's
Compensation for the Plan Year bears to the total
Compensation of all Participants for the Plan Year. For
purposes of this Option (2), "Participant" means, in
addition to a Participant who satisfies the requirements of
Section 3.06 for the Plan Year, any other Participant
entitled to a top heavy minimum allocation under Section
3.04(B), but such Participant's allocation will not exceed
3% of his Compensation for the Plan Year.
[ ] (f) TWO-TIERED INTEGRATED ALLOCATION FORMULA - MAXIMUM DISPARITY. First,
the Advisory Committee will allocate the annual Employer nonelective
contributions in the same ratio
<PAGE>
that each Participant's Compensation plus Excess Compensation for the
Plan Year bears to the total Compensation plus Excess Compensation of
all Participants for the Plan Year. The allocation under this
paragraph, as a percentage of each Participant's Compensation plus
Excess Compensation, must not exceed the applicable percentage (5.7%,
5.4% or 4.3%) listed under the Maximum Disparity Table following
Option (i).
The Advisory Committee then will allocate any remaining nonelective
contributions in the same ratio that each Participant's Compensation for
the Plan Year bears to the total Compensation of all Participants for the
Plan Year.
[ ] (g) THREE-TIERED INTEGRATED ALLOCATION FORMULA. First, the Advisory
Committee will allocate the annual Employer nonelective contributions
in the same ratio that each Participant's Compensation for the Plan
Year bears to the total Compensation of all Participants for the Plan
Year. The allocation under this paragraph, as a percentage of each
Participant's Compensation may not exceed the applicable percentage
(5.7%, 5.4% or 4.3%) listed under the Maximum Disparity Table
following Option (i). Solely for purposes of the allocation in this
first paragraph, "Participant" means, in addition to a Participant who
satisfies the requirements of Section 3.06 for the Plan Year: (Choose
(1) or (2))
[ ] (1) No other Participant.
[ ] (2) Any other Participant entitled to a top heavy minimum
allocation under Section 3.04(B), but such Participant's
allocation under this Option (g) will not exceed 3% of his
Compensation for the Plan Year.
As a second tier allocation, the Advisory Committee will allocate the
nonelective contributions in the same ratio that each Participant's
Excess Compensation for the Plan Year bears to the total Excess
Compensation of all Participants for the Plan Year. The allocation
under this paragraph, as a percentage of each Participant's Excess
Compensation, may not exceed the allocation percentage in the first
paragraph.
Finally, the Advisory Committee will allocate any remaining
nonelective contributions in the same ratio that each Participant's
Compensation for the Plan Year bears to the total Compensation of all
Participants for the Plan Year.
[ ] (h) FOUR-TIERED INTEGRATED ALLOCATION FORMULA. First, the Advisory
Committee will allocate the annual Employer nonelective contributions
in the same ratio that each Participant's Compensation for the Plan
Year bears to the total Compensation of all Participants for the Plan
Year, but not exceeding 3% of each Participant's Compensation. Solely
for purposes of this first tier allocation, a "Participant" means, in
addition to any Participant who satisfies the requirements of Section
3.06 for the Plan Year, any other Participant entitled to a top heavy
minimum allocation under Section 3.04(B) of the Plan.
As a second tier allocation, the Advisory Committee will allocate the
nonelective contributions in the same ratio that each Participant's
Excess Compensation for the Plan Year bears to the total Excess
Compensation of all Participants for the Plan Year, but not exceeding
3% of each Participant's Excess Compensation.
As a third tier allocation, the Advisory Committee will allocate the
annual Employer contributions in the same ratio that each
Participant's Compensation plus Excess Compensation for the Plan Year
bears to the total Compensation plus Excess Compensation of all
Participants for the Plan Year.
<PAGE>
The allocation under this paragraph, as a percentage of each
Participant's Compensation plus Excess Compensation, must not exceed
the applicable percentage (2.7%, 2.4% or 1.3%) listed under the
Maximum Disparity Table following Option (i).
The Advisory Committee then will allocate any remaining nonelective
contributions in the same ratio that each Participant's Compensation
for the Plan Year bears to the total Compensation of all Participants
for the Plan Year.
[ ] (i) EXCESS COMPENSATION. For purposes of Option (f), (g) or (h),
"Excess Compensation" means Compensation in excess of the
following Integration Level: (Choose (1) or (2))
[ ](1) 100% (not exceeding 100%) of the taxable wage base, as
determined under Section 230 of the Social Security
Act, in effect on the first day of the Plan Year:
(Choose any combination of (i) and (ii) or choose
(iii))
[ ] (i) Rounded to (but not exceeding the taxable wage
base).
[ ] (ii) But not greater than $ .
[ ] (iii) Without any further adjustment or limitation.
[ ] (2) $_____________________ [Note: Not exceeding the taxable
wage base for the Plan Year in which this Adoption
Agreement first is effective.]
MAXIMUM DISPARITY TABLE. For purposes of Options (f), (g) and (h), the
applicable percentage is:
<TABLE>
<CAPTION>
Integration Level (as Applicable Percentages for Applicable Percentages
percentage of taxable wage base) Option (f) or Option (g) for Option (h)
--------------------------------- --------------------------- ---------------------
<S> <C> <C>
100% 5.7% 2.7%
More than 80% but less than 100% 5.4% 2.4%
More than 20% (but not less than $10,001)
and not more than 80% 4.3% 1.3%
20% (or $10,000, if greater) or less 5.7% 2.7%
</TABLE>
[ ] (j) ALLOCATION OFFSET. The Advisory Committee will reduce a Participant's
allocation otherwise made under Part II of this Section 3.04 by the
Participant's allocation under the following qualified plan(s)
maintained by the Employer:_______________________.
The Advisory Committee will determine this allocation reduction:
(Choose (1) or (2))
[ ] (1) By treating the term "nonelective contribution" as including
all amounts paid or accrued by the Employer during the Plan
Year to the qualified plan(s) referenced under this Option
(j). If a Participant under this Plan also participates in
that other plan, the Advisory Committee will treat the
amount the Employer contributes for or during a Plan Year on
behalf of a particular Participant under such other plan as
an amount allocated under this Plan to that Participant's
Account for that Plan Year. The Advisory Committee will make
the computation of allocation required under the immediately
preceding sentence before making any allocation of
nonelective contributions under this Section 3.04.
[ ] (2) In accordance with the formula provided in an addendum to this
Adoption Agreement, numbered 3.04(j).
<PAGE>
TOP HEAVY MINIMUM ALLOCATION - METHOD OF COMPLIANCE. If a Participant's
allocation under this Section 3.04 is less than the top heavy minimum allocation
to which he is entitled under Section 3.04(B): (Choose (k) or (l))
[ X ] (k) The Employer will make any necessary additional contribution to the
Participant's Account, as described in Section 3.04(B)(7)(a) of the
Plan.
[ ] (l) The Employer will satisfy the top heavy minimum allocation under the
following plan(s) it maintains:________________. However, the Employer
will make any necessary additional contribution to satisfy the top
heavy minimum allocation for an Employee covered only under this Plan
and not under the other plan(s) designated in this Option (l). See
Section 3.04(B)(7)(b) of the Plan.
If the Employer maintains another plan, the Employer may provide in an addendum
to this Adoption Agreement, numbered Section 3.04, any modifications to the Plan
necessary to satisfy the top heavy requirements under Code ss.416.
<PAGE>
RELATED EMPLOYERS. If two or more related employers (as defined in Section 1.30)
contribute to this Plan, the Advisory Committee must allocate all Employer
nonelective contributions (and forfeitures treated as nonelective contributions)
to each Participant in the Plan, in accordance with the elections in this
Adoption Agreement Section 3.04: (Choose (m) or (n))
[ ] (m) Without regard to
which contributing related group member employs the Participant.
[ X ] (n) Only
to the Participants directly employed by the contributing Employer. If a
Participant receives Compensation from more
than one contributing Employer, the Advisory Committee will determine
the allocations under this Adoption Agreement Section 3.04 by
prorating among the participating Employers the Participant's
Compensation and, if applicable, the Participant's Integration Level
under Option (i).
3.05 FORFEITURE ALLOCATION. Subject to any restoration allocation required
under Sections 5.04 or 9.14, the Advisory Committee will allocate a Participant
forfeiture in accordance with Section 3.04: (Choose (a) or (b); (c) and (d) are
optional in addition to (a) or (b))
[ X ] (a) As an Employer nonelective contribution for the Plan Year in which the
forfeiture occurs, as if the Participant forfeiture were an additional
nonelective contribution for that Plan Year.
[ ] (b) To reduce the Employer matching contributions and nonelective
contributions for the Plan Year: (Choose (1) or (2))
[ ] (1) in which the forfeiture occurs.
[ ] (2) immediately following the Plan Year in which the forfeiture
occurs.
[ X ] (c) To the extent attributable to matching contributions: (Choose (1), (2)
or (3))
[ ] (1) In the manner elected under Options (a) or (b).
[ X ] (2) First to reduce Employer matching contributions for the Plan
Year: (Choose (i) or (ii))
[ ] (i) in which the forfeiture occurs,
[X] (ii) immediately following the Plan Year in which the
forfeiture occurs, then as elected in Options (a) or (b).
[ ] (3) As a discretionary matching contribution for the Plan Year in
which the forfeiture occurs, in lieu of the manner elected under
Options (a) or (b).
[ ] (d) First to reduce the Plan's ordinary and necessary administrative
expenses for the Plan Year and then will allocate any remaining
forfeitures in the manner described in Options (a), (b) or (c),
whichever applies. If the Employer elects Option (c), the forfeitures
used to reduce Plan expenses: (Choose (1) or (2))
[ ] (1) relate proportionately to forfeitures described in Option (c)
and to forfeitures described in Options (a) or (b).
[ ] (2) relate first to forfeitures described in Option _________.
ALLOCATION OF FORFEITED EXCESS AGGREGATE CONTRIBUTIONS. The Advisory Committee
will allocate any forfeited excess aggregate contributions (as described in
Section 14.09): (Choose (e), (f) or (g))
[ X ] (e) To reduce Employer matching contributions for the Plan Year: (Choose
(1) or (2))
[ ] (1) in which the forfeiture occurs.
[X] (2) immediately following the Plan Year in which the forfeiture
occurs.
[ ] (f) As Employer discretionary matching contributions for the Plan Year in
which forfeited, except the Advisory Committee will not allocate these
forfeitures to the Highly Compensated Employees who incurred the
forfeitures.
[ ] (g) In accordance with Options (a) through (d), whichever applies, except
the Advisory Committee will not allocate these forfeitures under
Option (a) or under Option (c)(3) to the Highly Compensated Employees
who incurred the forfeitures.
<PAGE>
3.06 ACCRUAL OF BENEFIT.
COMPENSATION TAKEN INTO ACCOUNT. For the Plan Year in which the Employee first
becomes a Participant, the Advisory Committee will determine the allocation of
any cash or deferred contribution, designated qualified nonelective contribution
or nonelective contribution by taking into account: (Choose (a) or (b))
[ ] (a) The Employee's Compensation for the entire Plan Year.
[ X ] (b) The Employee's Compensation for the portion of the Plan Year in which
the Employee actually is a Participant in the Plan.
ACCRUAL REQUIREMENTS. Subject to the suspension of accrual requirements of
Section 3.06(E) of the Plan, to receive an allocation of cash or deferred
contributions, matching contributions, designated qualified nonelective
contributions, nonelective contributions and Participant forfeitures, if any,
for the Plan Year, a Participant must satisfy the conditions described in the
following elections: (Choose (c) or at least one of (d) through (f))
[ ] (c) SAFE HARBOR RULE. If the Participant is employed by the Employer on
the last day of the Plan Year, the Participant must complete at least
one Hour of Service for that Plan Year. If the Participant is not
employed by the Employer on the last day of the Plan Year, the
Participant must complete at least 501 Hours of Service during the
Plan Year.
[ X ] (d) HOURS OF SERVICE CONDITION. The Participant must complete the
following minimum number of Hours of Service during the Plan Year:
(Choose at least one of (1) through (5))
[X] (1) 1,000 Hours of Service.
[ ] (2) (Specify, but the number of Hours of Service may not exceed
1,000) .
[X] (3) No Hour of Service requirement if the Participant terminates
employment during the Plan Year on account of: (Choose (i),
(ii) or (iii))
[X] (i) Death.
[X] (ii) Disability.
[X] (iii) Attainment of Normal Retirement Age in the current Plan
Year or in a prior Plan Year.
[ ] (4) _______________ Hours of Service (not exceeding 1,000) if
the Participant terminates employment with the Employer
during the Plan Year, subject to any election in Option (3).
[X] (5) No Hour of Service requirement for an allocation of the
following contributions: deferred contributions.
[ ] (e) EMPLOYMENT CONDITION. The Participant must be employed by the Employer
on the last day of the Plan Year, irrespective of whether he satisfies
any Hours of Service condition under Option (d), with the following
exceptions: (Choose (1) or at least one of (2) through (5))
[ ] (1) No exceptions.
[ ] (2) Termination of employment because of death.
[ ] (3) Termination of employment because of disability.
[ ] (4) Termination of employment following attainment of Normal
Retirement Age.
[ ] (5) No employment condition for the following contributions:
deferred contributions and matching contributions.
[ ] (f) Non-elective contributions will be allocated on June 30 and December
31 of each Plan Year. To receive an allocation, a participant must be
employed on the allocation date corresponding with the date the
nonelective contribution is being allocated (i.e. June 30 or December
31).
SUSPENSION OF ACCRUAL REQUIREMENTS. The suspension of accrual requirements of
Section 3.06(E) of the Plan: (Choose (g), (h) or (i))
<PAGE>
[ X ] (g) Applies to the Employer's Plan.
[ ] (h) Does not apply to the Employer's Plan.
[ ] (i) Applies in modified form to the Employer's Plan, as described in an
addendum to this Adoption Agreement, numbered Section 3.06(E).
SPECIAL ACCRUAL REQUIREMENTS FOR MATCHING CONTRIBUTIONS. If the Plan allocates
matching contributions on two or more allocation dates for a Plan Year, the
Advisory Committee, unless otherwise specified in Option (l), will apply any
Hours of Service condition by dividing the required Hours of Service on a
prorata basis to the allocation periods included in that Plan Year. Furthermore,
a Participant who satisfies the conditions described in this Adoption Agreement
Section 3.06 will receive an allocation of matching contributions (and
forfeitures treated as matching contributions) only if the Participant satisfies
the following additional condition(s): (Choose (j) or at least one of (k) or
(l))
[ X ] (j) No additional conditions.
[ ] (k) The Participant is not a Highly Compensated Employee for the Plan
Year. This Option (k) applies to: (Choose (1) or (2))
[ ] (1) All matching contributions.
[ ] (2) Matching contributions described in Option(s) __________ of
Adoption Agreement Section 3.01.
[ ] (l) (Specify) . -----------------------
3.15 MORE THAN ONE PLAN LIMITATION. If the provisions of Section 3.15
apply, the Excess Amount attributed to this Plan equals: (Choose (a), (b) or
(c))
[ ] (a) The product of:
(i) the total Excess Amount allocated as of such date (including any
amount which the Advisory Committee would have allocated but for the
limitations of Code ss.415), times (ii) the ratio of (1) the amount
allocated to the Participant as of such date under this Plan divided
by (2) the total amount allocated as of such date under all qualified
defined contribution plans (determined without regard to the
limitations of Code ss.415).
[ X ] (b) The total Excess Amount.
[ ] (c) None of the Excess Amount.
3.18 DEFINED BENEFIT PLAN LIMITATION.
APPLICATION OF LIMITATION. The limitation under Section 3.18 of the Plan:
(Choose (a) or (b))
[ X ] (a) Does not apply to the Employer's Plan because the Employer does not
maintain and never has maintained a defined benefit plan covering any
Participant in this Plan.
[ ] (b) Applies to the Employer's Plan. To the extent necessary to satisfy the
limitation under Section 3.18, the Employer will reduce: (Choose (1)
or (2))
[ ] (1) The Participant's projected annual benefit under the defined
benefit plan under which the Participant participates.
[ ] (2) Its contribution or allocation on behalf of the Participant
to the defined contribution plan under which the Participant
participates and then, if necessary, the Participant's
projected annual benefit under the defined benefit plan
under which the Participant participates.
[Note: If the Employer selects (a), the remaining options in this Section 3.18
do not apply to the Employer's Plan.]
COORDINATION WITH TOP HEAVY MINIMUM ALLOCATION. The Advisory Committee will
apply the top heavy minimum allocation provisions of Section 3.04(B) of the Plan
with the following modifications: (Choose (c) or at least one of (d) or (e)) [X]
(c) No modifications.
<PAGE>
[ ] (d) For Non-Key Employees participating only in this Plan, the top heavy
minimum allocation is the minimum allocation described in Section
3.04(B) determined by substituting _________% (not less than 4%) for
"3%," except: (Choose (i) or (ii))
[ ] (i) No exceptions.
[ ] (ii) Plan Years in which the top heavy ratio exceeds 90%.
[ ] (e) For Non-Key Employees also participating in the defined benefit plan,
the top heavy minimum is: (Choose (1) or (2))
[ ] (1) 5% of Compensation (as determined under Section 3.04(B) or
the Plan) irrespective of the contribution rate of any Key
Employee, except: (Choose (i) or (ii))
[ ](i) No exceptions.
[ ](ii) Substituting "7 1/2%" for "5%" if the top heavy ratio
does not exceed 90%.
[ ] (2) 0%. [Note: The Employer may not select this Option (2)
unless the defined benefit plan satisfies the top heavy
minimum benefit requirements of Code ss.416 for these
Non-Key Employees.]
ACTUARIAL ASSUMPTIONS FOR TOP HEAVY CALCULATION. To determine the top heavy
ratio, the Advisory Committee will use the following interest rate and mortality
assumptions to value accrued benefits under a defined benefit plan: N/A.
If the elections under this Section 3.18 are not appropriate to satisfy the
limitations of Section 3.18, or the top heavy requirements under Code ss.416,
the Employer must provide the appropriate provisions in an addendum to this
Adoption Agreement.
ARTICLE IV
PARTICIPANT CONTRIBUTIONS
4.01 PARTICIPANT NONDEDUCTIBLE CONTRIBUTIONS. The Plan: (Choose (a) or
(b); (c) is available only with (b))
[ X ] (a) Does not permit Participant nondeductible contributions.
[ ] (b) Permits Participant nondeductible contributions, pursuant to Section
14.04 of the Plan.
[ ] (c) The following portion of the Participant's nondeductible contributions
for the Plan Year are mandatory contributions under Option (i)(3) of
Adoption Agreement Section 3.01: (Choose (1) or (2))
[ ] (1) The amount which is not less than:______________________.
[ ] (2) The amount which is not greater than:
ALLOCATION DATES. The Advisory Committee will allocate nondeductible
contributions for each Plan Year as of the Accounting Date and the following
additional allocation dates: (Choose (d) or (e))
[ ] (d) No other allocation dates.
[ ] (e) (Specify)_________________________________.
As of an allocation date, the Advisory Committee will credit all nondeductible
contributions made for the relevant allocation period. Unless otherwise
specified in (e), a nondeductible contribution relates to an allocation period
only if actually made to the Trust no later than 30 days after that allocation
period ends.
4.05 PARTICIPANT CONTRIBUTION - WITHDRAWAL/DISTRIBUTION. Subject to
the restrictions of Article VI, the following distribution options apply to a
Participant's Mandatory
<PAGE>
Contributions Account, if any, prior to his Separation from Service: (Choose (a)
or at least one of (b) through (d))
[ ] (a) No distribution options prior to Separation from Service.
[ ] (b) The same distribution options applicable to the Deferral Contributions
Account prior to the Participant's Separation from Service, as elected
in Adoption Agreement Section 6.03.
[ ] (c) Until he retires, the Participant has a continuing election to receive
all or any portion of his Mandatory Contributions Account if: (Choose
(1) or at least one of (2) through (4))
[ ] (1) No conditions.
[ ] (2) The mandatory contributions have accumulated for at least Plan
Years since the Plan Year for which contributed.
[ ] (3) The Participant suspends making nondeductible contributions
for a period of months.
[ ] (4) (Specify)__________________________ .
[ ]] (d) (Specify)________________________.
ARTICLE V
TERMINATION OF SERVICE - PARTICIPANT VESTING
5.01 NORMAL RETIREMENT. Normal Retirement Age under the Plan is:
(Choose (a) or (b)) [ X ] (a) 59 1/2 [State age, but may not exceed age 65].
[ ] (b) The later of the date the Participant attains_____________________
(_____) years of age or the (_____) anniversary of the first day of
the Plan Year in which the Participant commenced participation in the
Plan. [The age selected may not exceed age 65 and the anniversary
selected may not exceed the 5th.]
5.02 PARTICIPANT DEATH OR DISABILITY. The 100% vesting rule under
Section 5.02 of the Plan: (Choose (a) or choose one or both of (b) and (c))
[ ] (a) Does not apply.
[ X ] (b) Applies to death.
[ X ] (c) Applies to disability.
5.03 VESTING SCHEDULE.
DEFERRAL CONTRIBUTIONS ACCOUNT/QUALIFIED MATCHING CONTRIBUTIONS
ACCOUNT/QUALIFIED NONELECTIVE CONTRIBUTIONS ACCOUNT/MANDATORY CONTRIBUTIONS
ACCOUNT. A Participant has a 100% Nonforfeitable interest at all times in his
Deferral Contributions Account, his Qualified Matching Contributions Account,
his Qualified Nonelective Contributions Account and in his Mandatory
Contributions Account. REGULAR MATCHING CONTRIBUTIONS ACCOUNT/EMPLOYER
CONTRIBUTIONS ACCOUNT. With respect to a Participant's Regular Matching
Contributions Account and Employer Contributions Account, the Employer elects
the following vesting schedule: (Choose (a) or (b); (c) and (d) are available
only as additional options)
[ ] (a) Immediate vesting. 100% Nonforfeitable at all times. [Note: The
Employer must elect Option (a) if the eligibility conditions under
Adoption Agreement Section 2.01(c) require 2 years of service or more
than 12 months of employment.]
[ X ] (b) Graduated Vesting Schedules.
<PAGE>
TOP HEAVY SCHEDULE NON TOP HEAVY SCHEDULE
(MANDATORY) (OPTIONAL)
------------------- ----------------------
Years of Nonforfeitable Years of Nonforfeitable
Service Percentage Service Percentage
-------- --------------- -------- ---------------
Less than 1 0 Less than 1 0
1 20 1 20
2 40 2 40
3 60 3 60
4 80 4 80
5 100 5 100
6 or more 100% 6 100
7 or more 100%
[ ] (c) Special vesting election for Regular Matching Contributions Account.
In lieu of the election under Options (a) or (b), the Employer elects
the following vesting schedule for a Participant's Regular Matching
Contributions Account: (Choose (1) or (2))
[ ] (1) 100% Nonforfeitable at all times.
[ ] (2) In accordance with the vesting schedule described in the
addendum to this Adoption Agreement, numbered 5.03(c).
[Note: If the Employer elects this Option (c)(2), the
addendum must designate the applicable vesting schedule(s)
using the same format as used in Option (b).]
[Note: Under Options (b) and (c)(2), the Employer must complete a Top Heavy
Schedule which satisfies Code ss.416. The Employer, at its option, may complete
a Non Top Heavy Schedule. The Non Top Heavy Schedule must satisfy Code
ss.411(a)(2). Also see Section 7.05 of the Plan.]
[N/A](d) The Top Heavy Schedule under Option (b) (and, if applicable, under
Option (c)(2)) applies: (Choose (1) or (2))
[ ] (1) Only in a Plan Year for which the Plan is top heavy.
[ ] (2) In the Plan Year for which the Plan first is top heavy and
then in all subsequent Plan Years. [Note: The Employer may
not elect Option (d) unless it has completed a Non Top Heavy
Schedule.]
MINIMUM VESTING. (Choose (e) or (f))
[ X ] (e) The Plan does not apply a minimum vesting rule.
[ ] (f) A Participant's Nonforfeitable Accrued Benefit will never be less than
the lesser of $ or his entire Accrued Benefit, even if the application
of a graduated vesting schedule under Options (b) or (c) would result
in a smaller Nonforfeitable Accrued Benefit.
LIFE INSURANCE INVESTMENTS. The Participant's Accrued Benefit attributable to
insurance contracts purchased on his behalf under Article XI is: (Choose (g) or
(h))
[ ] (g) Subject to the vesting election under Options (a), (b) or (c).
[ ] (h) 100% Nonforfeitable at all times, irrespective of the vesting election
under
Options (b) or (c)(2).
5.04 CASH-OUT DISTRIBUTIONS TO PARTIALLY-VESTED PARTICIPANTS/ RESTORATION
OF FORFEITED ACCRUED BENEFIT. The deemed cash-out rule described in Section
5.04(C) of the Plan: (Choose (a) or (b))
[ ] (a) Does not apply.
[ X ] (b) Will apply to determine the timing of forfeitures for 0% vested
Participants. A Participant is not a 0% vested Participant if he has
a Deferral Contributions Account.
5.06 YEAR OF SERVICE - VESTING.
VESTING COMPUTATION PERIOD. The Plan measures a Year of Service on the basis of
the following 12 consecutive month periods: (Choose (a) or (b))
[ X ] (a) Plan Years.
[ ] (b) Employment Years. An Employment Year is the 12 consecutive month
period measured from the Employee's Employment Commencement Date
and each successive 12 consecutive month period measured from each
anniversary of that Employment Commencement Date.
HOURS OF SERVICE. The minimum number of Hours of Service an Employee must
complete during a vesting computation period to receive credit for a Year of
Service is: (Choose (c) or (d))
[ X ] (c) 1,000 Hours of Service.
[ ] (d) _________ Hours of Service. [Note: The Hours of Service requirement
may not exceed 1,000.]
5.08 INCLUDED YEARS OF SERVICE - VESTING. The Employer specifically
excludes the following Years of Service: (Choose (a) or at least one
of (b) through (e))
[ ] (a) None other than as specified in Section 5.08(a) of the Plan.
[ ] (b) Any Year of Service before the Participant attained the age of
___________(_____). [Note: The age selected may not exceed age 18.]
[ ] (c) Any Year of Service during the period the Employer did not maintain
this Plan or a predecessor plan.
[ X ] (d) Any Year of Service before a Break in Service if the number of
consecutive Breaks in Service equals or exceeds the greater of 5
or the aggregate number of the Years of Service prior to the Break.
This exception applies only if the Participant is 0% vested in his
Accrued Benefit derived from Employer contributions at the time he
has a Break in Service. Furthermore, the aggregate number of Years of
Service before a Break in Service do not include any Years of Service
not required to be taken into account under this exception by reason
of any prior Break in Service.
[ ] (e) Any Year of Service earned prior to the effective date of ERISA if
the Plan would have disregarded that Year of Service on account of
an Employee's Separation from Service under a Plan provision in
effect and adopted before January 1, 1974.
<PAGE>
ARTICLE VI
TIME AND METHOD OF PAYMENTS OF BENEFITS
CODE SS.411(D)(6) PROTECTED BENEFITS. The elections under this Article VI may
not eliminate Code ss.411(d)(6) protected benefits. To the extent the elections
would eliminate a Code ss.411(d)(6) protected benefit, see Section 13.02 of the
Plan. Furthermore, if the elections liberalize the optional forms of benefit
under the Plan, the more liberal options apply on the later of the adoption date
or the Effective Date of this Adoption Agreement.
<PAGE>
6.01 TIME OF PAYMENT OF ACCRUED BENEFIT.
DISTRIBUTION DATE. A distribution date under the Plan means any business day of
the Plan Year coincident with or next following date of termination after
appropriate forms are completed and received. [Note: The Employer must specify
the appropriate date(s). The specified distribution dates primarily establish
annuity starting dates and the notice and consent periods prescribed by the
Plan. The Plan allows the Trustee an administratively practicable period of time
to make the actual distribution relating to a particular distribution date.]
NONFORFEITABLE ACCRUED BENEFIT NOT EXCEEDING $3,500. Subject to the limitations
of Section 6.01(A)(1), the distribution date for distribution of a
Nonforfeitable Accrued Benefit not exceeding $3,500 is: (Choose (a), (b), (c),
(d) or (e))
[ ] (a) _______________ of the ____________________ Plan Year beginning after
the Participant's Separation from Service.
[ ] (b) _________________________________________ following the Participant's
Separation from Service.
[ ] (c) ______________________________ of the Plan Year after the Participant
incurs ______________ Break(s) in Service (as defined in Article V).
[ ] (d) _________________________________________ following the Participant's
attainment of Normal Retirement Age, but not earlier than ____________
days following his Separation from Service.
[ X ] (e) (Specify) Any business day of the Plan Year coincident with or next
following date of termination.
NONFORFEITABLE ACCRUED BENEFIT EXCEEDS $3,500. See the elections under Section
6.03.
DISABILITY. The distribution date, subject to Section 6.01(A)(3), is: (Choose
(f), (g) or (h))
[ ] (f) _________________________________ after the Participant terminates
employment because of disability.
[ X ] (g) The same as if the Participant had terminated employment without
disability.
[ ] (h) Specify) ___________________________________.
HARDSHIP. (Choose (i) or (j))
[ X ] (i) The Plan does not permit a hardship distribution to a Participant who
has separated from Service.
[ ] (j) The Plan permits a hardship distribution to a Participant who has
separated from Service in accordance with the hardship distribution
policy stated in: (Choose (1), (2) or (3))
[ ] (1) Section 6.01(A)(4) of the Plan.
[ ] (2) Section 14.11 of the Plan.
[ ] (3) The addendum to this Adoption Agreement, numbered Section 6.01.
<PAGE>
DEFAULT ON A LOAN. If a Participant or Beneficiary defaults on a loan made
pursuant to a loan policy adopted by the Advisory Committee pursuant to Section
9.04, the Plan: (Choose (k), (l) or (m))
[ ] (k) Treats the default as a distributable event. The Trustee, at the
time of the default, will reduce the Participant's Nonforfeitable
Accrued Benefit by the lesser of the amount in default (plus accrued
interest) or the Plan's security interest in that Nonforfeitable
Accrued Benefit. To the extent the loan is attributable to the
Participant's Deferral Contributions Account, Qualified Matching
Contributions Account or Qualified Nonelective Contributions Account,
the Trustee will not reduce the Participant's Nonforfeitable Accrued
Benefit unless the Participant has separated from Service or unless
the Participant has attained age 59 1/2.
[ X ] (l) Does not treat the default as a distributable event. When an
otherwise distributable event first occurs pursuant to Section 6.01 or
Section 6.03 of the Plan, the Trustee will reduce the Participant's
Nonforfeitable Accrued Benefit by the lesser of the amount in default
(plus accrued interest) or the Plan's security interest in that
Nonforfeitable Accrued Benefit.
[ ] (m) (Specify) ___________________________________________.
6.02 METHOD OF PAYMENT OF ACCRUED BENEFIT. The Advisory Committee will
apply Section 6.02 of the Plan with the following modifications: (Choose (a) or
at least one of (b), (c), (d) and (e))
[ X ] (a) No modifications.
[ ] (b) Except as required under Section 6.01 of the Plan, a lump sum
distribution is not available:
[ ] (c) An installment distribution: (Choose (1) or at least one of (2) or
(3))
[ ] (1) Is not available under the Plan.
[ ] (2) May not exceed the lesser of years or the maximum period
permitted under Section 6.02.
[ ] (3) (Specify) _________________________________________.
[ ] (d) The Plan permits the following annuity options:
Any Participant who elects a life annuity option is subject to the
requirements of Sections 6.04(A), (B), (C) and (D) of the Plan. See
Section 6.04(E). [Note: The Employer may specify additional annuity
options in an addendum to this Adoption Agreement, numbered 6.02(d).]
[ ] (e) If the Plan invests in qualifying Employer securities, as
described in Section 10.03(F), a Participant eligible to elect
distribution under Section 6.03 may elect to receive that distribution
in Employer securities only in accordance with the provisions of the
addendum to this Adoption Agreement, numbered 6.02(e).
6.03 BENEFIT PAYMENT ELECTIONS.
PARTICIPANT ELECTIONS AFTER SEPARATION FROM SERVICE. A Participant who is
eligible to make distribution elections under Section 6.03 of the Plan may elect
to commence distribution of his Nonforfeitable Accrued Benefit: (Choose at least
one of (a) through (c))
[ ] (a) As of any distribution date, but not earlier than ____ of the ________
Plan Year beginning after the Participant's Separation from Service.
[ X ] (b) As of the following date(s): (Choose at least one of Options (1)
through (6))
<PAGE>
[ ] (1) Any distribution date after the close of the Plan Year in which
the Participant attains Normal Retirement Age.
[X] (2) Any distribution date following his Separation from Service with
the Employer.
[ ] (3) Any distribution date in the ______________ Plan Year(s) beginning
after his Separation from Service.
[ ] (4) Any distribution date in the Plan Year after the Participant
incurs ____________________ Break(s) in Service (as defined in
Article V).
[ ] (5) Any distribution date following attainment of age and
completion of at least Years of Service (as defined in Article V).
[ ] (6) (Specify) ___________________________________.
[ ] (c) (Specify) ____________________________________________.
The distribution events described in the election(s) made under Options
(a), (b) or (c) apply equally to all Accounts maintained for the Participant
unless otherwise specified in Option (c).
PARTICIPANT ELECTIONS PRIOR TO SEPARATION FROM SERVICE - REGULAR MATCHING
CONTRIBUTIONS ACCOUNT AND EMPLOYER CONTRIBUTIONS ACCOUNT. Subject to the
restrictions of Article VI, the following distribution options apply to a
Participant's Regular Matching Contributions Account and Employer Contributions
Account prior to his Separation from Service: (Choose (d) or at least one of (e)
through (h))
[ ] (d) No distribution options prior to Separation from Service.
[ ] (e) Attainment of Specified Age. Until he retires, the Participant has a
continuing election to receive all or any portion of his
Nonforfeitable interest in these Accounts after he attains: (Choose
(1) or (2))
[ ] (1) Normal Retirement Age.
[ ] (2) ___ years of age and is at least 100% vested in these Accounts.
[Note: If the percentage is less than 100%, see the special
vesting formula in Section 5.03.]
[ ] (f) After a Participant has participated in the Plan for a period of not
less than ____ years and he is 100% vested in these Accounts, until he
retires, the Participant has a continuing election to receive all
or any portion of the Accounts. [Note: The number in the blank space
may not be less than 5.]
[ ] (g) Hardship. A Participant may elect a hardship distribution prior to
his Separation from Service in accordance with the hardship
distribution policy: (Choose (1), (2) or (3); (4) is available only as
an additional option)
[ ] (1) Under Section 6.01(A)(4) of the Plan.
[ ] (2) Under Section 14.11 of the Plan.
[ ] (3) Provided in the addendum to this Adoption Agreement, numbered
Section 6.03.
[ ] (4) In no event may a Participant receive a hardship distribution
before he is at least 100% vested in these Accounts. [Note: If the
percentage in the blank is less than 100%, see the special vesting
formula in Section 5.03.]
[ ] (h) (Specify) _______________________________________________.
<PAGE>
[Note: The Employer may use an addendum, numbered 6.03, to provide additional
language authorized by Options (b)(6), (c), (g)(3) or (h) of this Adoption
Agreement Section 6.03.]
PARTICIPANT ELECTIONS PRIOR TO SEPARATION FROM SERVICE - DEFERRAL CONTRIBUTIONS
ACCOUNT, QUALIFIED MATCHING CONTRIBUTIONS ACCOUNT AND QUALIFIED NONELECTIVE
CONTRIBUTIONS ACCOUNT. Subject to the restrictions of Article VI, the following
distribution options apply to a Participant's Deferral Contributions Account,
Qualified Matching Contributions Account and Qualified Nonelective Contributions
Account prior to his Separation from Service: (Choose (i) or at least one of (j)
through (l))
[ ] (i) No distribution options prior to Separation from Service.
[ ] (j) Until he retires, the Participant has a continuing election to receive
all or any portion of these Accounts after he attains: (Choose (1) or
(2))
[ ] (1) The later of Normal Retirement Age or age 59 1/2.
[ ] (2) Age _____ (at least 59 1/2).
[ X ] (k) Hardship. A Participant, prior to this Separation from Service,
may elect a hardship distribution from his Deferral Contributions
Account in accordance with the hardship distribution policy under
Section 14.11 of the Plan.
[ ] (l) (Specify) ___________________________________________________________.
[Note: Option (l) may not permit in service distributions prior to
age 59 1/2 (other than hardship) and may not modify the hardship
policy described in Section 14.11.]
SALE OF TRADE OR BUSINESS/SUBSIDIARY. If the Employer sells substantially all of
the assets (within the meaning of Code ss.409(d)(2)) used in a trade or business
or sells a subsidiary (within the meaning of Code ss.409(d)(3)), a Participant
who continues employment with the acquiring corporation is eligible for
distribution from his Deferral Contributions Account, Qualified Matching
Contributions Account and Qualified Nonelective Contributions Account: (Choose
(m) or (n))
[ X ] (m) Only as described in this Adoption Agreement Section 6.03 for
distributions prior to Separation from Service.
[ ] (n) As if he has a Separation from Service. After March 31, 1988, a
distribution authorized solely by reason of this Option (n) must
constitute a lump sum distribution, determined in a manner consistent
with Code ss.401(k)(10) and the applicable Treasury regulations.
6.04 ANNUITY DISTRIBUTIONS TO PARTICIPANTS AND SURVIVING SPOUSES. The
annuity distribution requirements of Section 6.04: (Choose (a) or (b))
[ X ] (a) Apply only to a Participant described in Section 6.04(E) of the Plan
(relating to the profit sharing exception to the joint and survivor
requirements).
[ ] (b) Apply to all Participants.
ARTICLE IX
ADVISORY COMMITTEE - DUTIES WITH RESPECT TO PARTICIPANTS' ACCOUNTS
9.10 VALUE OF PARTICIPANT'S ACCRUED BENEFIT. If a distribution (other than
a distribution from a segregated Account and other than a corrective
distribution described in Sections 14.07,
<PAGE>
14.08, 14.09 or 14.10 of the Plan) occurs more than 90 days after the most
recent valuation date, the distribution will include interest at: (Choose (a),
(b) or (c))
[ ](a) 0% per annum. [Note: The percentage may equal 0%.]
[ ](b) The 90 day Treasury bill rate in effect at the beginning of the
current valuation period.
[ X ](c) (Specify) Actual investment return earned on individually directed
accounts to date of distribution .
9.11 ALLOCATION AND DISTRIBUTION OF NET INCOME GAIN OR LOSS. Pursuant to
Section 14.12, to determine the allocation of net income, gain or loss:
(Complete only those items, if any, which are applicable to the Employer's Plan)
[ X ](a) For salary reduction contributions, the Advisory Committee will:
(Choose (1), (2), (3), (4) or (5))
[X] (1) Apply Section 9.11 without modification.
[ ] (2) Use the segregated account approach described in Section 14.12.
[ ] (3) Use the weighted average method described in Section 14.12,
based on a Quarterly weighing period.
[ ] (4) Treat as part of the relevant Account at the beginning of the
valuation period _______% of the salary reduction contributions:
(Choose (i) or (ii))
[ ] (i) made during that valuation period.
[ ] (ii) made by the following specified time: __________________.
[ ] (5) Apply the allocation method described in the addendum to this
Adoption Agreement numbered 9.11(a).
[ X ] (b) For matching contributions, the Advisory Committee will: (Choose (1),
(2), (3) or (4))
[X] (1) Apply Section 9.11 without modification.
[ ] (2) Use the weighted average method described in Section 14.12, based
on a Quarterly weighing period.
[ ] (3) Treat as part of the relevant Account at the beginning of the
valuation period __________% of the matching contributions
allocated during the valuation period.
[ ] (4) Apply the allocation method described in the addendum to this
Adoption Agreement numbered 9.11(b).
[ X ] (c) For Participant nondeductible contributions, the Advisory Committee
will: (Choose (1), (2), (3), (4) or (5))
[X] (1) Apply Section 9.11 without modification.
[ ] (2) Use the segregated account approach described in Section 14.12.
[ ] (3) Use the weighted average method described in Section 14.12, based
on a weighing period.
[ ] (4) Treat as part of the relevant Account at the beginning of the
valuation period __________% of the Participant nondeductible
contributions: (Choose (i) or (ii))
[ ] (i) made during that valuation period.
[ ] (ii) made by the following specified time: __________________.
[ ] (5) Apply the allocation method described in the addendum to this
Adoption Agreement numbered 9.11(c).
<PAGE>
ARTICLE X
TRUSTEE AND CUSTODIAN, POWERS AND DUTIES
10.03 INVESTMENT POWERS. Pursuant to Section 10.03[F] of the Plan, the
aggregate investments in qualifying Employer securities and in qualifying
Employer real property: (Choose (a) or (b))
[ ] (a) May not exceed 10% of Plan assets.
[ X ] (b) May not exceed 100% of Plan assets. [Note: The percentage may not
exceed 100%.]
10.14 VALUATION OF TRUST. In addition to each Accounting Date, the Trustee
must value the Trust Fund on the following valuation date(s): (Choose (a) or
(b))
[ ] (a) No other mandatory valuation dates.
[ X ] (b) (Specify) December 31.
<PAGE>
EFFECTIVE DATE ADDENDUM
(RESTATED PLANS ONLY)
The Employer must complete this addendum only if the restated Effective
Date specified in Adoption Agreement Section 1.18 is different than the restated
effective date for at least one of the provisions listed in this addendum. In
lieu of the restated Effective Date in Adoption Agreement Section 1.18, the
following special effective dates apply: (Choose whichever elections apply)
[ ] (a) COMPENSATION DEFINITION. The Compensation definition of Section
1.12 (other than the 200,000 limitation) is effective for Plan Years
beginning after _______________. [Note: May not be effective later
than the first day of the first Plan Year beginning after the
Employer executes this Adoption Agreement to restate the Plan for the
Tax Reform Act of 1986, if applicable.]
[ ] (b) ELIGIBILITY CONDITIONS. The eligibility conditions specified in
Adoption Agreement Section 2.01 are effective for Plan Years
beginning after ________________________.
[ ] (c) SUSPENSION OF YEARS OF SERVICE. The suspension of Years of Service
rule elected under Adoption Agreement Section 2.03 is effective for
Plan Years beginning after .
[ ] (d) CONTRIBUTION/ALLOCATION FORMULA. The contribution formula elected
under Adoption Agreement Section 3.01 and the method of allocation
elected under Adoption Agreement Section 3.04 is effective for Plan
Years beginning after ________________________.
[ ] (e) ACCRUAL REQUIREMENTS. The accrual requirements of Section 3.06 are
effective for Plan Years beginning after _________________________.
[ ] (f) EMPLOYMENT CONDITION. The employment condition of Section 3.06 is
effective for Plan Years beginning after _________________________.
[ ] (g) ELIMINATION OF NET PROFITS. The requirement for the Employer not to
have net profits to contribute to this Plan is effective for Plan
Years beginning after ___________________. [Note: The date specified
may not be earlier than December 31, 1985.]
[ ] (h) VESTING SCHEDULE. The vesting schedule elected under Adoption
Agreement Section 5.03 is effective for Plan Years beginning after
___________________.
[ ] (i) ALLOCATION OF EARNINGS. The special allocation provisions elected
under Adoption Agreement Section 9.11 are effective for Plan Years
beginning after ____________________.
[ ] (j) (Specify) ___________________________________________________________.
For Plan Years prior to the special Effective Date, the terms of the
Plan prior to its restatement under this Adoption Agreement will control for
purposes of the designated provisions. A special Effective Date may not result
in the delay of a Plan provision beyond the permissible Effective Date under
any applicable law requirements.
<PAGE>
EXECUTION PAGE
The Trustee (and Custodian, if applicable), by executing this Adoption
Agreement, accepts its position and agrees to all of the obligations,
responsibilities and duties imposed upon the Trustee (or Custodian) under the
Prototype Plan and Trust. The Employer hereby agrees to the provisions of this
Plan and Trust, and in witness of its agreement, the Employer by its duly
authorized officers, has executed this Adoption Agreement, and the Trustee (and
Custodian, if applicable) signified its acceptance, on this ____day of _________
19 ___.
Name and EIN of Employer: Executive Telecard LTD. EIN: 13 - 3486421
-----------------------
Signed: __________________________________________________
Name(s) of Trustee: Diane Kime, Anne Haas and Allen Mandel
Signed: __________________________________________________
Signed: __________________________________________________
Signed: __________________________________________________
Name of Custodian: N/A
---
Signed: __________________________________________________
[Note: A Trustee is mandatory, but a Custodian is optional. See Section 10.03
of the Plan.]
PLAN NUMBER. The 3-digit plan number the Employer assigns to this Plan for ERISA
reporting purposes (Form 5500 Series) is: 001.
USE OF ADOPTION AGREEMENT. Failure to complete properly the elections in this
Adoption Agreement may result in disqualification of the Employer's Plan. The
3-digit number assigned to this Adoption Agreement (see page 1) is solely for
the Regional Prototype Plan Sponsor's recordkeeping purposes and does not
necessarily correspond to the plan number the Employer designated in the prior
paragraph.
<PAGE>
RELIANCE ON NOTIFICATION LETTER. The Employer may not rely on the Regional
Prototype Plan Sponsor's notification letter covering this Adoption Agreement.
For reliance on the Plan's qualification, the Employer must obtain a
determination letter from the applicable IRS Key District office.
<PAGE>
FIRST AMENDMENT TO THE
EXECUTIVE TELECARD LTD. 401(K) PROFIT SHARING PLAN
WHEREAS; Executive Telecard Ltd., dba Eglobe, (the "Employer") maintains the
Executive Telecard Ltd. 401(k) Profit Sharing Plan (the "Plan"), and;
WHEREAS; Article XIII, Section 13.02 of the Plan gives the Employer the right to
amend the Plan at any time, and;
WHEREAS; the Employer would like to amend the Plan at this time, effective as of
April 1, 1998;
NOW, THEREFORE; be it resolved; that the Employer amends the Plan as follows:
Article I, Section 1.17 is changed to read as follows:
"1.17 PLAN YEAR/LIMITATION YEAR.
PLAN YEAR. Plan Year means:(Choose (a) or (b))
[X] (a) The 12 consecutive month period ending every December 31. A short
Plan Year will occur from April 1, 1998 through December 31, 1998.
[ ] (b) Other ____________________________________."
All other provisions of the Plan shall remain unchanged.
Signed this _________ day of ____________________, 1998.
Executive Telecard Ltd. (dba Eglobe) President
<PAGE>
SECOND AMENDMENT TO THE
EXECUTIVE TELECARD LTD. 401(K) PROFIT SHARING PLAN
WHEREAS; Executive Telecard Ltd., dba Eglobe, (the "Employer") maintains the
Executive Telecard Ltd. 401(k) Profit Sharing Plan (the "Plan"); and
WHEREAS; Article XIII, Section 13.02 of the Plan gives the Employer the right to
amend the Plan at any time; and
WHEREAS; the Employer would like to amend the Plan at this time, effective June
17, 1999;
NOW, THEREFORE; be it resolved; that the Employer amends the Plan to read as
follows:
(first paragraph) "The undersigned, eGlobe, Inc. ("Employer"), by executing
this Adoption Agreement elects to become a participating
Employer in the Milliman & Robertson, Inc. Defined
Contribution Prototype Plan (basic plan document #01) by
adopting the accompanying Plan and Trust in full as if the
Employer were a signatory to that Agreement. The Employer
makes the following elections granted under the provisions of
the Prototype Plan."
Section 1.03 "PLAN. The name of the Plan as adopted by the Employer is the
eGlobe, Inc. 401(k) Profit Sharing Plan & Trust."
All other provisions of the Plan shall remain unchanged.
Signed this _________ day of July, 1999.
----------------------------------------------
Executive Telecard Ltd. (dba Eglobe) President
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Board of Directors and Stockholders
eGlobe, Inc.
Denver, Colorado
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 19, 1999, except for Note 18,
which is as of April 10, 1999 relating to the consolidated financial statements
and schedules of eGlobe, Inc. and subsidiaries, appearing in the Company's
Annual Report on Form 10-K for the nine months ended December 31, 1998 and in
the Prospectus constituting a part of the Registration Statement under Form S-1
and S-1/A.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 28, 1999 relating to the
consolidated financial statements of IDX International, Inc. and subsidiaries,
appearing in the Prospectus constituting a part of the Registration Statement
under Form S-1 and S-1/A and in the report under Form 8-K/A.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 26, 1999 relating to the
combined consolidated financial statements of Telekey, Inc. and subsidiary and
Travelers Teleservices, Inc., appearing in the Prospectus constituting a part of
the Registration Statement under Form S-1 and S-1/A and in the report under Form
8-K/A.
/s/ BDO Seidman, LLP
--------------------
BDO Seidman, LLP
Denver, Colorado
July 22, 1999
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of eGlobe, Inc. of our report dated May 15, 1998 except
Note 12, which is as of September 11, 1998 and the last paragraph of Note 7,
which is as of February 12, 1999 relating to the financial statements of IDX
International, Inc., which appears in the Current Report on Form 8-K/A of
eGlobe, Inc. (formerly Executive TeleCard, Ltd.) dated April 30, 1999.
/s/ PricewaterhouseCoopers LLP
------------------------------
PricewaterhouseCoopers LLP
McLean, Virginia
July 22, 1999
