As filed with the Securities and Exchange Commission on November 7, 1994
Registration No. 33___
========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________________
FORM S-8
Registration Statement
Under
The Securities Act of 1933
___________________________________
SCOTSMAN INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3635892
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
775 Corporate Woods Parkway
Vernon Hills, Illinois 60061
(Address of principal executive offices, including zip code)
THE DELFIELD COMPANY
401(k) SAVINGS AND PROFIT SHARING RETIREMENT PLAN
(Full title of the plan)
Donald D. Holmes
Vice President-Finance
Scotsman Industries, Inc.
775 Corporate Woods Parkway
Vernon Hills, Illinois 60061
(Name and address of agent for service)
(708) 215-4447
(Telephone number, including area code, of agent for service)
With a copy to:
Shirley M. Lukitsch
Schiff Hardin & Waite
7200 Sears Tower
Chicago, Illinois 60606
(312) 258-5602
_________________________________
CALCULATION OF REGISTRATION FEE
========================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Amount maximum maximum
Title of Securities to be Registered to be offering price aggregate Amount of
registered (1) per share offering price registration fee
(2) (2) (2)
<S> <C> <C> <C> <C>
Common Stock, par value $.10 per share
(including associated Common Stock
Purchase Rights) 200,000 $15.875 $3,175,000 $1,094.83
Interests in the Plan (3) (3) (3) (3)
</TABLE>
========================================================================<PAGE>
(1) Based upon the number of shares that would be purchased by the
trustee of the trust established in connection with The Delfield
Company 401(k) Savings and Profit Sharing Retirement Plan during
the two-year period beginning with the effective date of this
Registration Statement, if the estimated aggregate employee
contributions during such period were invested in such Common Stock
at $15.875 per share, the average of the high and low sales prices
reported on the New York Stock Exchange consolidated reporting
system on November 2, 1994. No maximum number of shares are
issuable under the Plan.
(2) Estimated on the basis of $15.875 per share, the average of the
high and low sales prices as quoted on the New York Stock Exchange
consolidated reporting system on November 2, 1994, pursuant to Rule
457(h) and 457(c).
(3) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the Plan
described herein for which no separate fee is required.
-2-<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by Scotsman
Industries, Inc. (the "Registrant") or The Delfield Company 401(k)
Savings and Profit Sharing Retirement Plan (the "Plan") are incorporated
herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended January 2, 1994;
(b) The Registrant's Quarterly Reports on Form 10-Q for the
quarterly periods ended April 3, 1994 and July 3, 1994 and
Current Reports on Form 8-K, dated January 13, 1994, February
18, 1994 and April 29, 1994;
(c) The description of the Registrant's Common Stock, par value
$.10 per share, and the Common Stock Purchase Rights contained
in the Registrant's Registration Statement on Form 10, filed
with the Securities and Exchange Commission (the "Commission")
on February 14, 1989, as amended by Amendment No. 1 on Form 8,
filed with the Commission on March 14, 1989, Amendment No. 2
on Form 8, filed with the Commission on March 23, 1989,
Amendment No. 3 on Form 8, filed with the Commission on March
27, 1989 and Amendment No. 4 on Form 10/A, filed with the
Commission on January 27, 1994; and
(d) The Plan's Annual Report on Form 11-K for the fiscal year
ended December 31, 1993.
All documents subsequently filed by the Registrant and/or the
Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed
incorporated by reference herein and to be a part hereof from the date
of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
-3-<PAGE>
Item 6. Indemnification of Directors and Officers.
Under the General Corporation Law of the State of Delaware
(the "Delaware Law"), directors and officers as well as other employees
and individuals may be indemnified against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement in
connection with specified actions, suits or proceedings, whether civil,
criminal, administrative or investigative (other than an action by or in
the right of the corporation--a "derivative action") if they acted in
good faith and in a manner they reasonably believed to be in or not
opposed to the best interests of the company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful. A similar standard of care is applicable in the
case of derivative actions, except that indemnification only extends to
expenses (including attorney's fees) incurred in connection with the
defense or settlement of such an action, and the Delaware Law requires
court approval before there can be any indemnification where the person
seeking indemnification has been found liable to the company.
Article Ninth of the Restated Certificate of Incorporation of
the Registrant ("Article Ninth") provides that each person who was or is
made a party to, or is involved in, any action, suit or proceeding by
reason of the fact that he or she is or was a director, officer or
employee of the Registrant (or was serving at the request of the
Registrant as a director, officer, employee or agent for another entity)
will be indemnified and held harmless by the Registrant, to the full
extent authorized by the Delaware Law, as currently in effect (or, to
the extent indemnification is broadened, as it may be amended) against
all expense, liability or loss (including attorneys' fees, judgments,
fines, Employee Retirement Income Security Act excise taxes or penalties
and amounts to be paid in settlement) reasonably incurred by such person
in connection therewith. Article Ninth provides that the rights
conferred thereby are contract rights and will include the right to be
paid by the Registrant for the expenses incurred in defending the
proceedings specified above, in advance of their final disposition,
except that, if the Delaware Law so requires, such payment will only be
made upon delivery to the Registrant by the indemnified party of an
undertaking to repay all amounts so advanced if it is ultimately
determined that the person receiving such payments is not entitled to be
indemnified under such provision or otherwise. Article Ninth provides
that the Registrant may, by action of its board of directors, provide
indemnification to its agents with the same scope and effect as the
foregoing indemnification of directors, officers and employees.
Article Ninth provides that persons indemnified thereunder may
bring suit against the Registrant to recover unpaid amounts claimed
thereunder, and that if such suit is successful, the expense of bringing
such a suit will be reimbursed by the Registrant. Article Ninth further
provides that while it is a defense to such a suit that the person
claiming indemnification has not met the applicable standards of conduct
-4-<PAGE>
making indemnification permissible under the Delaware Law, the burden of
proving the defense will be on the Registrant and neither the failure of
the Registrant's board of directors to have made a determination that
indemnification is proper nor an actual determination that the claimant
has not met the applicable standard of conduct will be a defense to the
action or create a presumption that the claimant has not met the
applicable standard of conduct.
Article Ninth provides that the rights to indemnification and
the payment of expenses incurred in defending a proceeding in advance of
its final disposition conferred therein will not be exclusive of any
other right which any person may have or acquire under any statute,
provision of the Registrant's Restated Certificate of Incorporation or
By-Laws, or otherwise. Finally, Article Ninth provides that the
Registrant may maintain insurance, at its expense, to protect itself and
any of its directors, officers, employees or agents against any expense,
liability or loss, whether or not the Registrant would have the power to
indemnify such person against such expense, liability or loss under the
Delaware Law.
The Registrant has insurance which insures directors and
officers of the Registrant for acts committed in their capacity as
directors and officers or claims made against them by reason of their
status as directors or officers, except for and to the extent the
Registrant has indemnified the directors or officers.
Item 8. Exhibits.
The exhibits filed herewith or incorporated by reference
herein are set forth in the Exhibit Index filed as part of this
registration statement on page 8 hereof.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in
the information set forth in the registration
statement;
-5-<PAGE>
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3, 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 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
-6-<PAGE>
expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on
Form S-8 and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the Village
of Vernon Hills, State of Illinois, on November 4, 1994.
SCOTSMAN INDUSTRIES, INC.
(Registrant)
By:/s/ Richard C. Osborne
_______________________________
Richard C. Osborne
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below appoints Richard C.
Osborne and Donald D. Holmes or either of them, as such person's true
and lawful attorneys to execute in the name of each such person, and to
file, any amendments to this registration statement that either of such
attorneys will deem necessary or desirable to enable the Registrant to
comply with the Securities Act of 1933, as amended, and any rules,
regulations, and requirements of the Securities and Exchange Commission
with respect thereto, in connection with the registration of the shares
of Common Stock (and the Common Stock Purchase Rights attached thereto)
and interests in the Plan that are subject to this registration
statement, which amendments may make such changes in such registration
statement as either of the above-named attorneys deems appropriate, and
to comply with the undertakings of the Registrant made in connection
with this registration statement; and each of the undersigned hereby
ratifies all that either of said attorneys will do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in
the capacities and on the dates indicated.
-7-<PAGE>
Signature Title Date
--------- ----- ----
/s/ Richard C. Osborne Chairman of the Board, November 4, 1994
---------------------- President, Chief Executive
Richard C. Osborne Officer and Director
(Principal Executive Officer)
/s/ Donald D. Holmes Vice President -- Finance November 4, 1994
---------------------- (Principal Financial and
Donald D. Holmes Accounting Officer)
/s/ Donald C. Clark Director November 4, 1994
----------------------
Donald C. Clark
/s/ Frank W. Considine Director November 4, 1994
----------------------
Frank W. Considine
---------------------- Director November --, 1994
Timothy C. Collins
/s/ Matthew O. Diggs, Jr. Director November 4, 1994
-------------------------
Matthew O. Diggs, Jr.
------------------------- Director November --, 1994
George D. Kennedy
/s/ James J. O'Connor Director November 4, 1994
-------------------------
James J. O'Connor
/s/ Robert G. Rettig Director November 4, 1994
-------------------------
Robert G. Rettig
-8-<PAGE>
The Plan. Pursuant to the requirements of the Securities Act
of 1933, the Plan has duly caused this Registration Statement to be
signed on its behalf by the undersigned trustees, thereunto duly
authorized, in the Village of Vernon Hills, State of Illinois, on
November 4, 1994.
/s/ Kevin E. McCrone
----------------------------
Kevin E. McCrone
/s/ W. Joseph Manifold
-----------------------------
W. Joseph Manifold
/s/ Ronald A. Anderson
------------------------------
Ronald A. Anderson
-9-<PAGE>
EXHIBIT INDEX
Exhibit
Number Description Page No.
-------- ------------ --------
4.1 The Delfield Company 401(k) Savings and 12
Profit Sharing Plan, as amended and
restated effective January 1, 1992, and as
further amended by First Amendment to The
Delfield Company 401(k) Savings and Profit
Sharing Retirement Plan, dated December
29, 1992, Second Amendment to The Delfield
Company 401(k) Savings and Profit Sharing
Retirement Plan, dated March 15, 1993, and
Third Amendment to The Delfield Company
401(k) Savings and Profit Sharing Plan,
dated November 1, 1994.
4.2 Restated Certificate of Incorporation of
the Registrant (incorporated herein by
reference to the Registrant's 10-K for the
fiscal year ended December 31, 1989, File
No. 0-10182).
4.3 By-Laws of the Registrant, as amended
(incorporated herein by reference to the
Registrant's 8-K, dated June 21, 1991,
File No. 0-10182).
4.4 Rights Agreement, dated as of April 14,
1989, between Scotsman Industries, Inc.
and Harris Trust & Savings Bank
(incorporated herein by reference to the
Registrant's 8-K, dated April 25, 1989,
File No. 0-10182), as amended by Amendment
No. 1 thereto, dated as of January 11,
1994 (incorporated herein by reference to
Scotsman Industries, Inc. Amendment No. 4
to General Form for Registration of
Securities on Form 10/A, as filed with the
Commission on January 27, 1994, File No.
0-10182).
5 Opinion of Schiff Hardin & Waite. 111
23.1 Consent of Arthur Andersen LLP 115
-10-<PAGE>
Exhibit
Number Description Page No.
-------- ------------ --------
23.2 Consent of Schiff Hardin & Waite
(contained in their opinion filed as
Exhibit 5).
24 Powers of Attorney (contained on the
signature pages hereto).
-11-<PAGE>
EXHIBIT 4.1
THE DELFIELD COMPANY
401 (k) SAVINGS AND PROFIT SHARING RETIREMENT PLAN
---------------------------------------------------------
(As Amended and Restated Effective January 1, 1992)
-12-<PAGE>
THE DELFIELD COMPANY
--------------------
401 (k) SAVINGS AND PROFIT SHARING RETIREMENT PLAN
--------------------------------------------------
(As Amended and Restated Effective January 1, 1992)
TABLE OF CONTENTS
-----------------
ARTICLE SECTION PAGE
------- ------- ----
I CREATION OF PLAN AND TRUST . . . . . . . . . . . . . . . . . . 16
1.1 Creation . . . . . . . . . . . . . . . . . . . . . . . . 16
1.2 Acceptance of Trust by Trustee . . . . . . . . . . . . . 16
II DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 17
III ADMINISTRATION . . . . . . . . . . . . . . . . . . . . . . . . 27
3.1 Allocation of Responsibility Among Fiduciaries for Trust
Administration . . . . . . . . . . . . . . . . . . . . . 27
3.2 Delegation of Fiduciary Responsibilities . . . . . . . . 27
3.3 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 28
3.4 Administrative Committee . . . . . . . . . . . . . . . . 28
IV CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . 31
4.1 Company Contributions. . . . . . . . . . . . . . . . . . 31
4.2 Participant Contributions. . . . . . . . . . . . . . . . 39
4.3 Rollover Contributions. . . . . . . . . . . . . . . . . . 45
V ELIGIBILITY, PARTICIPATION AND HOURS OF SERVICE . . . . . . . 47
5.1 Eligibility . . . . . . . . . . . . . . . . . . . . . . . 47
5.2 Participation. . . . . . . . . . . . . . . . . . . . . . 48
5.3 Service. . . . . . . . . . . . . . . . . . . . . . . . . 49
5.4 Information to be Furnished . . . . . . . . . . . . . . . 52
VI ALLOCATION TO PARTICIPANT ACCOUNTS . . . . . . . . . . . . . . 52
6.1 Creation of Accounts . . . . . . . . . . . . . . . . . . 52
6.2 Adjustments to Accounts . . . . . . . . . . . . . . . . . 53
VII DISBURSEMENT OF BENEFITS . . . . . . . . . . . . . . . . . . . 58
7.1 General . . . . . . . . . . . . . . . . . . . . . . . . . 58
7.2 Retirement . . . . . . . . . . . . . . . . . . . . . . . 58
7.3 Death . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.4 Disability . . . . . . . . . . . . . . . . . . . . . . . 60
7.5 Termination of Employment . . . . . . . . . . . . . . . . 61
7.6 Distributions . . . . . . . . . . . . . . . . . . . . . . 62
7.7 Hardship or Financial Need . . . . . . . . . . . . . . . 70
7.8 Withdrawal . . . . . . . . . . . . . . . . . . . . . . . 74
-13-<PAGE>
THE DELFIELD COMPANY
--------------------
401 (k) SAVINGS AND PROFIT SHARING RETIREMENT PLAN
--------------------------------------------------
(As Amended and Restated Effective January 1, 1992)
TABLE OF CONTENTS
-----------------
ARTICLE SECTION PAGE
------- ------- ----
7.9 Qualified Domestic Relations Orders . . . . . . . . . . . 75
7.10 Unclaimed Benefits . . . . . . . . . . . . . . . . . . . 76
VIII TOP HEAVY PROVISIONS . . . . . . . . . . . . . . . . . . . . . 77
8.1 Minimum Contributions . . . . . . . . . . . . . . . . . . 77
8.2 Impact Upon Maximum Contributions and Benefits . . . . . 78
8.3 Top Heavy and Super Top Heavy Plan Defined . . . . . . . 78
IX INVESTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 83
9.1 General . . . . . . . . . . . . . . . . . . . . . . . . . 83
9.2 Investment Funds . . . . . . . . . . . . . . . . . . . . 83
9.3 Investment in Insurance Policies . . . . . . . . . . . . 84
9.4 Allocation of Contributions to Investment Funds . . . . . 86
9.5 Transfers of Investments . . . . . . . . . . . . . . . . 86
9.6 Changes in Investments . . . . . . . . . . . . . . . . . 86
9.7 Loans . . . . . . . . . . . . . . . . . . . . . . . . . . 86
X DUTIES OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . 87
XI AMENDMENT, DURATION, AND TERMINATION OF TRUST AND PLAN . . . . 90
11.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . 90
11.2 Duration of Trust . . . . . . . . . . . . . . . . . . . . 91
11.3 Termination . . . . . . . . . . . . . . . . . . . . . . . 91
11.4 No Contribution . . . . . . . . . . . . . . . . . . . . . 92
XII RIGHTS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . 92
XIII RIGHTS OF PARTICIPANTS . . . . . . . . . . . . . . . . . . . . 93
XIV MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 94
-14-<PAGE>
THE DELFIELD COMPANY
401 (k) SAVINGS AND PROFIT SHARING RETIREMENT PLAN
----------------------------------------------------------
(As amended and restated effective January 1, 1992)
THIS AGREEMENT entered into at Mt. Pleasant, Michigan this
30th day of October, 1992 by and between THE DELFIELD COMPANY, a
Delaware corporation, with its principal place of business at Mt.
Pleasant, Michigan (hereinafter called "Delfield"), and Kevin E.
McCrone, W. Joseph Manifold and Ronald A. Anderson (hereinafter called
the "Trustee"), as Trustee.
WHEREAS, Delfield, by agreement with the Trustee effective
July 1, 1991, established THE DELFIELD COMPANY'S 401K PROFIT SHARING
PLAN NO. 002 (the "Plan"), for the benefit of certain of its employees;
and
WHEREAS, Delfield, with the consent of the Trustee, desires to
amend the Plan to change the name of the Plan, to provide for additional
contributions, to make additional changes, and, in the interest of
clarity, to restate the Plan.
NOW, THEREFORE, in consideration of the premises, Delfield,
with the consent of the Trustee, hereby changes the name of the Plan to
THE DELFIELD COMPANY 401(k) SAVINGS AND PROFIT SHARING RETIREMENT PLAN
and further amends and restates the Plan, effective January 1, 1992, as
follows:
ARTICLE I
CREATION OF PLAN AND TRUST
1.1 Creation. Delfield has adopted this Plan for certain of
its employees and created a Trust for the purpose of funding said Plan.
Delfield hereby agrees to pay to the Trustee sums of money as
hereinafter specified, but in trust, nevertheless, to be held and
administered by the Trustee for the purpose of effectuating said Plan
and for the purpose and use, and subject to the terms and conditions,
set forth in this Agreement.
1.2 Acceptance of Trust by Trustee. The Trustee hereby
accepts said Trust, and agrees to act as Trustee and to hold the
principal of the Trust, together with any other money paid to it by
Delfield, and any earnings upon the Trust Fund or otherwise, in trust,
for the use and purpose and subject to the terms and conditions
hereinafter set forth.
-15-<PAGE>
ARTICLE II
DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings unless the context requires otherwise:
2.1 "Act" means the Employee Retirement Income Security Act
of 1974, as hereafter amended.
2.2 "Active Participant" means with respect to any Plan Year,
a Participant who shall have completed 1000 Hours of Service in that
Plan Year.
2.3 "Actual Deferral Percentage" means for each Plan Year,
the average of the ratios (calculated separately for each person
eligible to be a Participant in a specified group to the nearest 1/100
of 1% of the Participant's Compensation as defined under Section
2.12(a)) of:
(a) the amount of Salary Deferral Contributions, and, at
the election of the Administrative Committee and under such rules as the
Secretary of the Treasury may provide, Mandatory Contributions,
Discretionary Contributions, Matching Contributions, and Qualifying
Contributions, to be paid over to the Trust Fund on behalf of each such
Participant for such Plan Year, to
(b) the Participant's Compensation as defined under
Section 2.12(a) for such Plan Year, before taking into account the
Salary Deferral Contributions allocated to his Account hereunder.
The amount of Mandatory Contributions, Discretionary
Contributions, Matching Contributions, and Qualifying Contributions
taken into account under subsection (a) hereof shall be only those
Mandatory, Discretionary, Matching and Qualifying Contributions needed
to satisfy the test set forth in Section 4.2(a)(3). Salary Deferral
Contributions used to satisfy the requirements of Section 4.1(b) shall
not be used in determining whether Salary Deferral Contributions satisfy
the requirements of Section 4.2(a)(3).
2.4 "Adjustment Factor" means the cost of living adjustment
factor prescribed by the Secretary of the Treasury under Section 415(d)
of the Code, as applied to such items and in such manner as the
Secretary shall provide.
2.5 "Administrative Committee" means the Administrative
Committee established pursuant to Article III.
2.6 "Agreement" means this Agreement, including the Trust and
the Plan and any amendments thereto.
-16-<PAGE>
2.7 "Anniversary Date" means the last day of each Plan Year,
including the last day of the short Plan Year.
2.8 "Beneficiary" means (a) prior to January 1, 1993, the
Beneficiary of the Employee as determined under the Plan as then in
effect, and (b) on and after January 1, 1993, a person designated by the
Employee, in writing or by the terms of this Plan, who is or may be
entitled to a benefit hereunder in case of a Participant's death.
2.9 "Break in Service" means a Break in Service as defined in
Section 5.3(b).
2.10 "Code" means the Internal Revenue Code of 1986, as
amended.
2.11 "Company" means THE DELFIELD COMPANY and any other
Participating Company; provided, however, that whenever the Plan
indicates that the "Company" may or shall take any action under the
Plan, such action shall be taken by The Delfield Company for itself and
as agent for any such participating Company.
2.12 "Compensation" means:
(a) For all purposes hereof other than Sections 4.1(c),
6.3 and Article VIII, wages within the meaning of Section 3401(a) of the
Code and all other payments to the Employee by the Company (in the
course of the Company's trade or business) during the Plan Year (or, if
the Employee is not a Participant for the entire Plan Year, (or, if the
Employee is not a Participant for the entire Plan Year, during that
portion of the Plan Year for which the Employee is a Participant) for
which the Company is required to furnish the Employee a written
statement under Sections 6041(d) and 6051(a)(3) of the Code; provided,
however, that for all purposes hereof, all contributions made under any
previous plan or any life insurance or health and welfare employee
benefit plan maintained at any time by the Company for the benefit of a
Participant shall be excluded; and provided, further, that for all
purposes hereof other than Section 6.3, Compensation shall include any
amount which is contributed by the Company pursuant to a salary
reduction agreement and which is not includible in the gross income of
the Employee under Section 125, 402(a)(98), 402(h) or 403(b) of the
Code.
(b) For purposes of Sections 4.1(c), 6.3 and Article VIII,
all taxable amounts received by the Employee from the Company and
Related and Predecessor Companies which are defined as compensation in
Section 1.415-2(d) of the Regulations under the Code, including an
Employee's earned income, wages, salaries, and fees for professional
services, and other amounts received (without regard to whether or not
an amount is paid in cash) for personal services actually rendered in
the course of employment with the Company (including commissions paid to
-17-<PAGE>
salesmen, compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips and bonuses), during
the Plan Year, and excluding the following:
(1) For purposes of Section 6.3, Company
contributions to a plan of deferred compensation which are not
included in the Employee's gross income for the taxable year
in which contributed or Company contributions under a
simplified employee pension plan to the extent such
contributions are deductible by the Employee, or any
distributions from a plan of deferred compensation;
(2) Amounts realized from the exercise of a
nonqualified stock option, or when restricted stock (or
property) held by the Employee either becomes freely
transferable or is no longer subject to a substantial risk of
forfeiture;
(3) Amounts realized from the sale, exchange or
other disposition of stock acquired under a qualified stock
option; and
(4) Other amounts which received special tax
benefits, or contributions made by the Company (whether or not
under a salary reduction agreement) towards the purchase of an
annuity described in Section 403(b) of the Code (whether or
not the amounts are actually excludable from the gross income
of the Employee).
Compensation for any Limitation Year is the
Compensation actually paid or includable in gross income during such
year.
(c) For each Plan Year, the annual Compensation of each
Employee to be taken into account under the Plan shall not exceed
$200,000 ($100,000 for the short Plan Year), multiplied by the
Adjustment Factor. In determining the Compensation of an Employee for
purposes of this limitation, the family aggregation rules of Section
414(q)(6) of the Code shall apply, except in applying such rules, the
term "family" shall include only the spouse of the Employee and any
lineal descendants of the Employee who have not attained age 19 before
the close of the year. If, as a result of the application of such
rules, the adjusted $200,000 ($100,000 for the short Plan Year)
limitation is exceeded, then the limitation shall be prorated among the
affected individuals' Compensation determined under this Section 2.12(c)
prior to the application of this limitation.
2.13 "Contribution Percentage" means, for each Plan Year, the
average ratios (calculated separately for each person eligible to be a
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Participant in a specified group to the nearest 1/100 of 1% of the
Participant's Compensation as defined under Section 2.12(a)) of:
(a) The amount of Matching Contributions and, at the
election of the Administrative Committee pursuant to the Plan and under
such rules as the Secretary of Treasury may provide, Salary Deferral
Contributions, Mandatory Contributions, Discretionary Contributions, and
Qualifying Contributions to be paid to the Trust on behalf of each such
Participant for such Plan Year, to
(b) The Participant's Compensation as defined under
Section 2.12(a) for such Plan Year.
The amount of Salary Deferral Contributions,
Discretionary Contributions, Mandatory Contributions, and Qualifying
Contributions taken into account under subsection (a) hereof shall only
be those Salary Deferral Contributions, Discretionary Contributions,
Mandatory Contributions, and Qualifying Contributions needed to satisfy
the test set forth in Section 4.1(b). Matching Contributions used to
satisfy the requirements of Section 4.2(a) (3) shall not be used in
determining whether Matching Contributions satisfy the requirements of
Section 4.1(b).
2.14 "Discretionary Contributions" means the contributions
made by the Company and allocated on behalf of Participants under
Section 4.1(a) (4).
2.15 "Discretionary Contributions Account" means that portion
of a Participant's Account credited with Discretionary Contributions
under Section 6.2(c) hereof.
2.16 "Effective Date" means July 1, 1991.
2.17 "Employee" means any officer or other employee of the
Company who is classified as a full-time employee by the Company, but
shall not include (a) directors who are not officers or otherwise
regular employees of the Company; (b) independent contractors; or, (c)
on and after January 1, 1993, leased employees (within the meaning of
Section 5.1(e)), unless leased employees constitute more than 20% of the
Company's non-highly compensated work force within the meaning of Code
Section 414(n)(5)(C)(ii).
2.18 "Employment Commencement Date" means the date upon which
an Employee first performs an Hour of Service for the Company or a
Related or Predecessor Company.
2.19 "Excess Aggregate Contributions" means the excess of the
Matching Contributions (and the Salary Deferral Contributions,
Discretionary Contributions, Mandatory Contributions, and Qualifying
Contributions taken into account in computing the numerator of the
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Contribution Percentage) actually made on behalf of Highly Compensated
Employees for any Plan Year over the maximum amount of such
contributions permitted under Section 4.1 (b). The amount of Excess
Aggregate Contributions shall be determined after first determining any
Excess Deferral Amount and then reducing them by any Excess Deferral
Contributions.
2.20 "Excess Deferral Contributions" means the excess of the
Salary Deferral Contributions, Discretionary Contributions, Mandatory
Contributions, and Qualifying Contributions taken into account in
computing the numerator of the Actual Deferral Percentage and actually
made on behalf of Highly Compensated Employees for any Plan Year over
the maximum amount of such contributions permitted under Section
4.2(a)(3). The amount of Excess Deferral Contributions to be
distributed with respect to a Participant for a Plan Year shall be
reduced by any Excess Deferral Amount previously distributed to such
Participant for the Plan Year.
2.21 "Executive Committee" means the Executive Committee of
the Board of Directors of The Delfield Company.
2.22 "Family Member" means with respect to any Employee or
former Employee, such Employee's, or former Employee's, spouse and
lineal ascendants or descendants and the spouses of such lineal
ascendants or descendants.
2.23 "Fiduciaries" means, for purposes of the Act, the
Company, the Administrative Committee, the Trustee, the Investment
Manager, if any, and the Insurance Company, if any, to the extent
required under the Act, but only with respect to specific
responsibilities of each as described herein. Each Fiduciary shall
cease to be a Fiduciary with respect to any fiduciary responsibility, if
such responsibility is allocated to any other person pursuant to this
Plan or if another person is designated to carry out such
responsibility.
2.24 "Fiscal Year" means the calendar year.
2.25 "Highly Compensated Employee" means any highly
compensated active employee and highly compensated former employee
determined pursuant to Section 414(q) of the Code.
(a) A highly compensated active employee means an
employee who performs service for the Company during the Plan Year of
the determination (the determination year") and:
(l) During the 12-month period immediately
preceding the determination year (the "look-back year"): (A)
was a 5% owner at any time (within the meaning of Regulation
Section 1.414(q)-1T, A-8); (B) received Compensation from the
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Company in excess of $75,000 ($37,500 for the short Plan Year
determination) (multiplied by the Adjustment Factor); (C)
received Compensation from the Company in excess of $50,000
($25,000 for the short Plan Year determination) (multiplied by
the Adjustment Factor) and was a member of the top-paid group
for such year (within the meaning of Regulation Section
1.414(q)-1T, A-9); or (D) was an "includable" officer of the
Company (within the meaning of Regulation Section 1.414(q)-1T,
A-10) and received Compensation during such year that is
greater than 50% of the dollar limitation in effect under
Section 415(b)(1)(A) of the Code.
(2) During the determination year: (A) was a 5%
owner (within the meaning of Regulation Section 1.414(q)-1T,
A-8) at any time; and (B) was both (i) described in (a)(1)(A),
(B) or (a)(1)(D) of this Section 2.25 if the term
"determination year" is substituted for the term "look-back
year," and (ii) 1 of the 100 employees who received the most
Compensation from the Company during the determination year.
If no officer has satisfied the compensation
requirement of (a)(1)(D) or (a)(2)(B) above during either a
determination year or look-back year, the highest paid officer for such
year shall be treated as a Highly Compensated Employee. No more than 50
Employees (or, if lesser, the greater of 3 employees or 10% of the
employees) shall be treated as officers.
(b) A highly compensated former employee includes an
employee who is separated form service (or was deemed to have separated
from service) prior to the Plan Year, performs no service for the
Company during the Plan Year and was a Highly Compensated Employee under
subsections (1) and (2) of this Section 2.25(a) for either the
separation year or any Plan Year ending on or after the Employee's 55th
birthday.
(c) If an Employee is, during a determination year or
look-back year, a Family Member of either a 5% owner who is an active or
former Employee or a Highly Compensated Employee who is 1 of the 10 most
Highly Compensated Employees ranked on the basis of Compensation paid by
the Company during such year, then the Family Member and the 5% owner or
top-10 Highly Compensated Employee shall be aggregated. In such case,
the Family Member and 5% owner or top-10 Highly Compensated Employee
shall be treated as a single Employee receiving Compensation and plan
contributions or benefits equal to the sum of such Compensation and
contributions or benefits of the Family Member and 5% owner or top-10
Highly Compensated Employee.
For purposes of determining Highly Compensated
Employees, Compensation includes elective or salary reduction
-21-<PAGE>
contributions to a cafeteria plan, cash or deferred arrangement or tax
sheltered annuity.
2.26 "Hour of Service" means an Hour of Service as defined in
Section 5.3(a).
2.27 "Insurance Company" means Nationwide Life Insurance
Company, or any other insurance company with which the Company has
entered into a contract to provide the benefits of the Plan or to invest
contributions under the Plan.
2.28 "Investment Manager" means any person, firm, or
corporation who is a registered investment advisor under the Investment
Advisor Act of 1940, a bank or an insurance company, and (a) who has the
power to manage, acquire, or dispose of Plan assets, and (b) who
acknowledges in writing his fiduciary responsibility to the Plan.
2.29 "Key Employee" means an Employee (former employee or
beneficiary of either) in the Plan who, at any time during the Plan Year
or any of the 4 preceding Plan Years, is any of the following:
(a) an officer of the Company if his annual Compensation
does not exceed 50% of the maximum dollar limitation under Section
415(b)(1)(A) of the Code; provided, however, that for purposes hereof,
no more than 50 Employees of the Company (or, if fewer, the greater of 3
Employees or 10% of all Employees) shall be treated as officers of the
Company; and, provided, further, that if there are more than 50 officers
who are considered Key Employees under this test, only those 50 who had
the highest 1-year compensation in the 5-year period ending on the last
day of the Plan Year of the determination shall be considered Key
Employees;
(b) one of the 10 Employees owning (or considered as
owning within the meaning of Code Section 318) both more than a 0.5%
interest and the largest interests in the Company and all Related
Companies; provided, however, that an Employee shall not be considered a
Key Employee if he earns less compensation from the Company and all
Related Companies than the maximum dollar limitation under Code Section
415(c)(l)(A) in effect for the calendar year in which the Determination
Date falls; and provided further that if 2 employees have the same
interest, the employee having greater annual compensation shall be
treated as having a larger interest;
(c) a 5% owner of the outstanding stock or voting power
of all stock of the Company or any Related Company which is a
corporation (or of the capital or profit interest in the Company); or
(d) a 1% owner of the outstanding stock or voting power
of all stock of the Company or any Related Company (or of the capital or
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prof it interest in the Company) and has annual earnings from the
Company and any Related Company of more than $150,000.
For purposes of (b), (c), and (d), subparagraph (C) of
Code Section 318(a) (2) shall be applied by substituting 5% for 50%, in
the case of any Related Company which is not a corporation. ownership
shall be determined in accordance with Regulations issued pursuant to
Code Section 416(i)(1)(B)(iii)(II) and the rules of subsection (b), (c)
and (m) of Section 414 shall not apply in determining ownership in the
Company or any Related Company. Further, in determining the
distributions during the last 5 years to be taken into account
hereunder, the foregoing shall also apply to distributions under a
terminated plan which if it had not terminated would have been required
to be included in an Aggregation Group under Section 8.3 hereof.
2.30 "Limitation Year" means the Plan Year, making the short
Limitation Year the period from July 1, 1991 to December 31, 1991.
2.31 "Mandatory Contributions" means the contributions made by
the Company on behalf of Participants under Section 4.1(a) (3).
2.32 "Mandatory Contributions Account" means that portion of a
Participant's Account credited with Mandatory Contributions under
Section 6.2 (b).
2.33 "Matching Contributions" means the contributions made by
the Company on behalf of Participants under Section 4.1(a) (2).
2.34 "Matching Contributions Account" means that portion of a
Participant's Account credited with Matching Contributions under Section
6.2(e) hereof.
2.35 "Non-Highly Compensated Employee" means an Employee of
the Company who is neither a Highly Compensated Employee nor a Family
Member of a Highly Compensated Employee.
2.36 "Non-Key Employee" means an Employee who is not a Key
Employee.
2.37 "Non-Union Employee" means an Employee who is not a
member of the International Union, Allied Industrial Workers of America
AFL-CIO, Local 585.
2.38 "Normal Retirement Age" and "Normal Retirement Date" mean
the time an Employee attains age 65.
2.39 "Participant" means an Employee who meets the eligibility
and participation requirements of this Plan.
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2.40 " Participating Company" means any other corporation or
partnership which is classified by the Board of Directors of Delfield as
a Participating Company for purposes of this Plan and Trust, and which,
with the approval of the Board of Directors of Delfield, elects to
become a party hereto by adopting the plan and 'Trust for the benefit of
its employees by resolution of its Board of Directors or partners. As
evidence of its adoption of the Plan and Trust, the Participating
Company shall file certified copies of said resolution with Delfield,
and Delfield shall file 2 copies thereof, together with 2 certified
copies of its own Board of Directors resolution approving such
participation, with the Trustee hereunder which shall acknowledge
receipt thereon and return 1 copy thereof to Delfield. In all dealings
with the Trustee, Delfield shall act as agent for any Participating
Company.
2.41 "Plan" means THE DELFIELD COMPANY PROFIT SHARING
RETIREMENT PLAN, as set forth in this Agreement.
2.42 "Plan Sponsor" means, for purposes of the Act, the
Company.
2.43 "Plan Year" means the period beginning July 1, 1991 and
ending December 31, 1991 (the "short Plan Year") and, commencing January
1, 1992, each calendar year thereafter.
2.44 "Predecessor Company" means a Company which has been
acquired by the Company or by a Related Company and which prior to such
acquisition maintained this Plan.
2.45 "Qualifying Contributions" means the contributions made
by the Company under Section 4.1(a) (5).
2.46 "Qualifying Contributions Account" means that portion of
a Participant's Account credited with Qualifying Contributions under
Section 6.2 (f).
2.47 The term "Reemployment Commencement Date" means:
(a) If an Employee previously has been credited with
more than 500 Hours of Service in a computation period and subsequently
incurs a Break in Service, the first day on which such Employee is
entitled to credit for an Hour of Service after he incurred the Break in
Service; and
(b) If the Employee is credited with no Hours of Service
in any Plan Year commencing after the Reemployment Commencement Date
established under subsection (a) above, the first day on which the
Employee is entitled to credit for an Hour of Service after such Plan
Year.
-24-<PAGE>
2.48 "Related Company" means (a) any corporation included
within a "controlled group of corporations," as determined under Code
Section 414(b) and Regulations issued pursuant thereto (except that,
with respect to the limitation on contributions under Code Section 415,
such determination shall be made after substituting the phrase "more
than 50%" for the phrase" at least 80%" each place it appears in Section
1563(a)(l) of the Code); (b) any partnership, sole proprietorship,
trust, estate or corporation included within a "parent-subsidiary group
of trades or businesses under common control," or a "brother-sister
group of trades or businesses under common control," or a "combined
group of trades or businesses under common control," as determined under
Code Section 414(c) and Regulations issued pursuant thereto; and (c) any
corporation, partnership, or other organization which is included within
an "affiliated service group," as determined under Code Section 414,
including Code Sections 414(m), 414(n) and 414(o), and Regulations
issued pursuant thereto.
2.49 "Salary Deferral Account" means that portion of a
Participant's Account credited with Salary Deferral Contributions under
Section 6.2(d).
2.50 "Salary Deferral Contributions" means the contributions
of a Participant under Section 4.2(a).
2.51 "Separation from Employment" means termination of all
employment with the Company and any Related Company by reason of
retirement, death, disability, resignation, discharge, or otherwise.
2.52 "Spouse" means the Participant's spouse on the first day
of the period for which an amount is paid under this Plan to such
Participant as an annuity, or, in the case of a benefit not paid in the
form of an annuity, on the first day on which all events have occurred
which entitle the Participant to such benefit. Anything to the contrary
herein notwithstanding, however, a former spouse will be treated as the
Spouse and a current spouse will not be treated as the Spouse to the
extent provided under a qualified domestic relations order, as described
in Section 414(p) of the Code.
2.53 "Top Heavy Contribution Account" means that portion of a
Non-Union Employee's Account credited with Top Heavy Contributions under
Section 8.1 hereof.
2.54 "Trust" means the Trust created by this Agreement.
2.55 "Trust Fund" means the assets of this Trust, of whatever
kind, nature and description.
2.56 "Union Employee" means an Employee who is a member of the
International Union, Allied Industrial Workers of America AFL-CIO, Local
585.
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2.57 "Valuation Date" means the last day of each Plan Year and
such other dates as determined by the Administrative Committee.
2.58 Where necessary or appropriate to the context, the
masculine shall include the feminine, the feminine shall include the
masculine, the singular shall include the plural, and the plural shall
include the singular.
ARTICLE III
ADMINISTRATION
3.1 Allocation of Responsibility Among Fiduciaries for Trust
Administration. The Fiduciaries shall have only those powers, duties,
responsibilities, and obligations as are specifically given them under
this Plan. In general, the powers, duties, responsibilities, and
obligations of the Fiduciaries shall be allocated as follows:
(a) The Company shall have sole responsibility for
making the contributions provided for under this Plan and shall have the
sole authority to appoint and remove the Trustee, members of the
Administrative Committee, an agent of the Plan for the service of legal
process, and any Investment Manager and/or Insurance Company which may
be provided for under the Plan, and to amend or terminate this Plan in
whole or in part, as specifically described herein.
(b) The Administrative Committee shall have the sole
responsibility for the administration of the benefit structure of this
Plan as specifically described in this Plan.
(c) The Trustee shall have sole responsibility for the
management of the assets held under the Trust, as specifically described
herein, except to the extent that responsibility for management of any
assets held under the Trust is granted to an Investment Manager and/or
an Insurance Company as provided herein.
(d) The Investment Manager, if appointed, shall have the
sole responsibility for the management of any assets of the Trust
subject to management by the Investment Manager as specifically
described herein.
(e) The Insurance Company, if any, shall have the sole
responsibility for the management of any assets of the Trust subject to
management by the insurance Company as specifically described herein.
3.2 Delegation of Fiduciary Responsibilities. The
Company and the Administrative Committee, with the approval of the
Company, shall have the power to delegate their respective specific
fiduciary responsibilities (other than those of the Trustee, or the
Investment Manager with respect to the management of the Trust Fund) to
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officers or employees of the Company or to other individuals by
notifying them as to the duties and responsibilities delegated. Each
fiduciary so designated shall serve at the pleasure of the Fiduciary
making the designation, and, if full-time employees of the Company,
without compensation. Any such person may resign by delivering a written
resignation to the Fiduciary making the delegation. Vacancies created
by resignation, death or other cause may be filled by the Fiduciary or
the assigned responsibilities may be reassumed or redelegated by the
Fiduciary.
3.3 Miscellaneous. Each Fiduciary agrees that any directions
given information furnished or action taken by it shall be in accordance
with the provisions of this Plan authorizing or providing for such
information, direction or action. Furthermore, each Fiduciary may rely
upon any such direction, information or action of another Fiduciary as
being proper under this Plan and is not required under this Plan to
inquire into the propriety of any such direction, information or action.
It is intended under this Plan that each Fiduciary shall be responsible
for the proper exercise of its own powers, duties, responsibilities, and
obligations under this Plan and to the extent permitted by law, shall
not be responsible for any act or failure to act of another Fiduciary.
3.4 Administrative Committee.
(a) Appointment of Administrative Committee. The
Administrative Committee shall consist of a Chairman and at least 2
other members who shall be appointed by the Executive Committee of the
Board of Directors of the Company hereinafter referred to as the
"Executive Committee") to serve at the pleasure of the Executive
Committee.
Any member of the Administrative Committee may
resign by delivering his written resignation to the Executive Committee,
and the Executive Committee may remove any member of the Administrative
Committee at any time. Vacancies shall be filled promptly by the
Executive Committee.
(b) Administrative Committee Procedures. The
Administrative Committee shall act in accordance with the following
procedures:
(1) The Administrative Committee shall appoint a
Secretary, who may or may not be an Administrative Committee
member, and advise the Trustee of such action in writing.
(2) The Administrative Committee may act at a
meeting or in writing without a meeting. All decisions of the
Administrative Committee shall be made by the vote of the
majority, including actions in writing taken without a
meeting.
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(3) The Secretary of the Administrative Committee
shall keep a record of all meetings and forward all necessary
communications to the Company or the Trustee. A dissenting
Administrative Committee member, to the extent permitted by
the Act, shall not be responsible for any action or failure to
act if, within a reasonable time after he has knowledge of any
such action or failure to act by the majority, he registers
his dissent in writing, delivered to the other Administrative
Committee members, the Company and the Trustee.
(4) Either the Chairman or the Secretary of the
Administrative Committee may execute any certificates or any
other direction on behalf of the Administrative Committee.
(5) A member of the Administrative Committee who is
a Participant shall not vote on any question relating
specifically to himself; and, in the event the remaining
members of the Administrative Committee are unable to come to
a determination of any such question, the same shall be
determined by the Executive Committee.
(6) The members of the Administrative Committee
shall be bonded to the extent required to comply with the
requirements of the Act.
(7) The members of the Administrative Committee
shall serve without compensation for their service as such.
The Company may pay all expenses of the Plan and Trust, but if
not so paid such expenses shall be paid by the Trustee from
the Trust Fund.
(c) Administrative Committee Powers. The Administrative
Committee shall administer the benefit structure of the Plan in
accordance with its terms and shall have all powers necessary to carry
out its terms, including, but not by way of limitation, the following:
(1) To determine all questions relating to
eligibility of Employees and to the participation in this plan
by Employees.
(2) To compute and certify to the Trustee the
amount and kind of benefits payable to the Participants and
their Beneficiaries.
(3) To authorize all disbursements of benefits to
Participants or Beneficiaries and all disbursements of
reasonable expenses of the Plan and Trust by the Trustee from
the Trust Fund.
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(4) To obtain from the Company, the Trustee, the
Investment Manager, or the Insurance Company and from
Employees such information as shall be necessary for the
proper administration of the Plan.
(5) To prepare and distribute, in such manner as
the Administrative Committee determines to be appropriate,
information explaining the Plan.
(6) To furnish the Company, upon request, such
annual reports with respect to the administration of the Plan
as are reasonable and appropriate.
(7) To receive, review and keep on file (as it
deems convenient or proper) reports of the financial
condition, and of the receipts and disbursements, of the Trust
Fund from the Trustee or the Insurer.
(8) To adopt and prescribe regulations and
procedures to be followed by any Participant or Beneficiary in
filing applications for benefits, and for the furnishing and
verification of evidence and proofs necessary to establish
their rights to benefits under the Plan.
(9) To make findings of facts and determinations as
to the rights of any Participant or Beneficiary applying for
retirement benefits and to afford any such individual
dissatisfied with any such finding or determination the right
of review.
(10) To make and publish such rules for the
regulation of the Plan as are not inconsistent with the terms
of this Agreement.
(11) To purchase insurance, with the consent of the
Company, for any Fiduciaries of the Plan to cover liability or
losses by reason of the act or omission of a Fiduciary, if
such insurance permits recourse by the insurer against the
Fiduciary in the case of a breach of a Fiduciary obligation by
such Fiduciary.
The Administrative Committee shall have jurisdiction
to pass upon all questions concerning the application or interpretation
of the provisions of the Plan which it is empowered to administer. The
Administrative Committee shall have the broadest possible discretion to
decide all such questions in accordance with the terms of the Plan, and
all such decisions of the Administrative Committee shall be final and
binding upon the Company, the Employees and the Beneficiaries or
claimants under the Plan. The Administrative Committee shall have no
power to add to, subtract from or modify any of the terms of the Plan,
-29-<PAGE>
or to change or add to any benefits provided by the Plan, or to waive or
fail to apply any requirements of eligibility for a benefit under the
Plan.
(d) Finality of Decision. All determinations of the
Administrative Committee under Section 3.4(c) hereof shall be binding on
all persons except as otherwise expressly provided herein.
(e) Information to be Supplied by the Company. To enable
the Administrative Committee to perform its functions, the Company shall
supply full and timely information to the Administrative Committee of
all matters relating to the Compensation of all Participants and to the
termination of employment of Participants whether by retirement, death
or other cause, and such other pertinent facts as the Administrative
Committee may require. The Administrative Committee shall advise the
Trustee of such of the foregoing facts as may be pertinent to its
administration of the Trust. Information furnished hereunder shall be
kept confidential except to the extent necessary for administration of
the Plan.
(f) Application and Forms for Benefits. The
Administrative Committee shall require a Participant or Beneficiary to
complete and file with the Administrative Committee an application for a
benefit (except when the value of a Participant's Account does not
exceed $3,500) and all other forms approved by the Administrative
Committee, and to furnish all pertinent information requested by the
Administrative Committee. The Administrative Committee may rely upon all
such information so furnished it, including the current mailing address
of the Participant or Beneficiary.
ARTICLE IV
CONTRIBUTIONS
4.1 Company Contributions.
(a) General. Within the period for payment provided
herein, the Company shall, subject to the provisions of this Agreement,
determine, appropriate, and contribute to the Trust for the purposes of
this Plan for the Plan Year ending on such date, an amount (either in
cash, or in property acceptable to the Trustee, as applicable) which
equals the sum of:
(1) Such contributions as are required to fund
Salary Deferral Contributions under Section 4.2(a);
(2) Effective January 1, 1992, for Non-Union
Employees who are Participants, a Matching Contribution equal
to 10% of the amount of Salary Deferral Contributions credited
to each such Participant's Account for each Plan Year;
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(3) Effective January 1, 1992, for Non-Union
Employees who are Participants, a Mandatory Contribution
composed of a "Top Heavy Contribution," if the Plan is Top
Heavy in any Plan Year, to the extent required under Section
8.1 but not in excess of 2% of each Participant's Compensation
for the Plan Year, and an additional amount to be made to the
Active Participants only (which may be zero) so that the
Mandatory Contribution shall be equal to 2% of the
Compensation of each Active Participant for the Plan Year;
(4) Effective January 1, 1992, for Non-Union
Employees who are Participants, a Discretionary Contribution
composed of a "Top Heavy Contribution," if the Plan is Top
Heavy in any Plan Year, to the extent required under Section
8.1 and not satisfied by Mandatory Contributions, and an
additional amount to be made to the Active Participants only
(which may be zero) in such proportion and amount as the
Executive Committee shall determine in its sole discretion by
resolution; provided, however, that such Discretionary
Contribution shall not exceed 2% of the Compensation of each
Active Participant for the Plan Year; and
(5) In the sole discretion of the Company, either
or both a Qualifying Non-Union Employee Contribution and/or a
Qualifying Union Employee Contribution as follows:
(A) A "Qualifying Non-Union Employee
Contribution" (which may be zero) equal to a percentage
of the Compensation paid by the Company to each
Participant who is both a Non-Highly Compensated Employee
and a Non-Union Employee during the Plan Year for which
the contribution is made, as determined by resolution of
the Executive Committee in its sole discretion, either
specifying a fixed sum or a definite basis or formula by
which the amounts can be determined; or
(B) A "Qualifying Union Employee Contribution"
(which may be zero) equal to a percentage of the
Compensation paid by the Company to each Participant who
is both a Non-Highly Compensated Employee and a Union
Employee during the Plan Year for which the Contribution
is made, or as determined by resolution of the Executive
Committee in its sole discretion, either specifying a
fixed sum or a definite basis or formula by which the
amounts can be determined.
(6) Such contribution as is required by Section 7.10 in
order to restore forfeitures, if any.
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(b) Special Limitations on Matching Contributions. The
Contribution Percentage for Matching Contributions on behalf of Non-
Union Employees who are Participants and Highly Compensated Employees
shall not exceed the greater of:
(i) the Contribution Percentage of all Non-Union
Employees who are Participants and Non-Highly Compensated
Employees multiplied by 1.25 (the "1.25 Test"), or
(ii) the lesser of the Contribution Percentage of
all Non- Union Employees who are Participants and Non-Highly
Compensated Employees multiplied by 2, or 2 percentage points
plus the Contribution Percentage of all Non- Union Employees
who are Non-Highly Compensated Participants (the "2-2% Test");
provided, however, if the 2-2% Test of Section 4.2(a)(3)(ii)
is also used to satisfy the Actual Deferral Percentage test of
Section 4.2(a)(3), the Actual Deferral Percentage and the
Contribution Percentage must together satisfy Section 4.2(f).
For purposes of this Section 4.1(b), the following
rules shall apply:
(1) The Administrative Committee may treat any
portion or all of the Salary Deferral Contributions, Mandatory
Contributions, Discretionary Contributions, and Qualifying
Contributions as Matching Contributions provided that:
(A) All Mandatory Contributions, Discretionary
Contributions and Qualifying Contributions, including
those Qualifying Contributions treated as Matching
Contributions for purposes of this Section 4.1(b), do not
discriminate in favor of Highly Compensated Employees in
a manner prohibited by Section 401(a) (4) of the Code.
(B) All Mandatory Contributions, Discretionary
Contributions and Qualifying Contributions, excluding
those Mandatory Contributions, Discretionary
Contributions, and Qualifying Contributions treated as
Matching Contributions for purposes of this Section
4.1(b) and those Mandatory Contributions, Discretionary
Contributions, and Qualifying Contributions treated as
Salary Deferral Contributions for purposes of Section
4.2(a) (3), do not discriminate in favor of Highly
Compensated Employees in a manner prohibited by Section
401(a) (4) of the Code.
(C) Salary Deferral Contributions, including
those treated as Matching Contributions for purposes of
this Section 4.1(b), satisfy the Actual Deferral
Percentage test of 4.2(a) (3).
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(D) Salary Deferral Contributions, excluding
those treated as Matching Contributions for purposes of
this Section 4.1(b), satisfy the Actual Deferral
Percentage test of 4.2(a) (3).
(E) Except as provided in (A) and (C) above,
the Mandatory Contributions, Discretionary Contributions,
Qualifying Contributions, and the Salary Deferral
Contributions treated as Matching Contributions for
purposes of this Section 4.1(b) are not taken into
account in determining whether any other contributions or
benefits:
(i) satisfy the Code Section 401(a)(4)
requirement that a plan not discriminate in favor of
Highly Compensated Employees, or
(ii) satisfy the Actual Deferral
Percentage test of Section 4.2(a)(3).
(F) Mandatory Contributions, Discretionary
Contributions and Qualifying Contributions treated as
Matching Contributions must be allocated to the
Participants as of a date within the Plan Year.
(G) Mandatory Contributions, Discretionary
Contributions and Qualifying Contributions treated as
Matching Contributions shall not have the effect of
increasing the difference between the Contribution
Percentage for Participants who are Highly Compensated
Employees and the Contribution Percentage for all other
Participants.
(2) The Contribution Percentage for any Participant
who is a Highly Compensated Employee for the Plan Year and who
is eligible to receive Matching Contributions allocated to his
account under 2 or more plans described in Section 401(a) of
the Code or arrangements described in Section 401(m) of the
Code that are maintained by the Company or an Affiliated
Company shall be determined as if all such Contributions were
made under a single plan.
(3) In the event that this Plan satisfies the
requirements of Section 410(b) of the Code only if aggregated
with 1 or more other plans, or if 1 or more other plans
satisfy the requirements of Section 410(b) of the Code only if
aggregated with this Plan, then Section 4.1(b) shall be
applied by determining the Contribution Percentages of
Participants as if all such plans were a single plan.
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(4) If an eligible Highly Compensated Employee is
subject to the family aggregation rules of Section 414(q) (6)
because such Employee is either a 5% owner or 1 of the 10 most
Highly Compensated Employees, the combined Contribution
Percentage ratio for the family group (which is treated as 1
Highly Compensated Employee) for purposes of computing the
Contribution Percentage shall be the Contribution Percentage
ratio determined by combining Compensation, Matching
Contributions, and Salary Deferral Contributions,
Discretionary Contributions, Mandatory Contributions and
Qualifying Contributions treated as Matching Contributions of
all the eligible Family Members.
The Contribution Percentage ratio shall be
reduced as required under Section 4.1(b) (5) and the Excess
Aggregate Contributions for a family unit are to be allocated
among family members in proportion to the contributions of
each family member that are combined to determine the
Contribution Percentage ratio.
If an employee is required to be aggregated as
a member of more than 1 family group in a plan, all eligible
employees who are members of those family groups that include
that employee shall be aggregated as 1 family group.
(5) Notwithstanding anything to the contrary
herein, the Committee, in its discretion, may limit Matching
Contributions of Highly Compensated Employees in a manner that
prevents Excess Aggregate Contributions. If in applying this
Section 4.1(b), there are Excess Aggregate Contributions, the
amount of the Excess Aggregate Contributions for a Highly
Compensated Employee shall be determined under a leveling
method under which the Contribution Percentage ratio of the
Highly Compensated Employee with the highest Contribution
Percentage ratio is reduced to the extent required to satisfy
the Contribution Percentage test or cause the Highly
Compensated Employee's Contribution Percentage ratio to equal
the ratio of the Highly Compensated Employee with the next
highest Contribution Percentage ratio. The foregoing shall be
repeated until the Contribution Percentage test is satisfied.
(6) Matching Contributions, Discretionary
Contributions, Mandatory Contributions, and Qualifying
Contributions shall be considered made for a Plan Year if paid
to the Trust no later than the end of the 12-month period
beginning on the day after the close of the Plan Year and
allocated to a Participant's account for the Plan Year.
(7) The determination and treatment of the
Contribution Percentage of any Participant shall satisfy such
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other requirements as may be prescribed by the Secretary of
the Treasury.
(8) Excess Aggregate Contributions plus any income
and minus any loss allocable thereto shall be designated by
the Company as Excess Aggregate Contributions (and income) and
distributed if feasible within 2-1/2 months after the close of
the Plan Year for which such Contributions are made, but in no
event later than the last day of the subsequent Plan Year, to
the appropriate Highly Compensated Employee to whose Accounts
such Excess Aggregate Contributions were allocated for the
preceding Plan Year.
(9) Prior to January 1, 1992, the income or loss
allocable to Excess Aggregate Contributions shall be
determined in accordance with the Plan as then in effect. On
and after January 1, 1992, the income or loss allocable to
Excess Aggregate Contributions shall be determined by
multiplying the income or loss allocable to the Participant's
Matching Contributions (and, if applicable, Salary Deferral
Contributions, Mandatory Contributions, Discretionary
Contributions, and Qualifying Contributions) for the Plan Year
by a fraction, the numerator of which is the Excess Aggregate
Contributions on behalf of the Participant for the Plan Year
and the denominator of which is the amount of the
Participant's Account balance attributable to Matching
Contributions (and, if applicable, Salary Deferral
Contributions, Mandatory Contributions, Discretionary
Contributions, and Qualifying Contributions), on the last day
of the Plan Year, reduced by the gain allocable to such total
amount for the Plan Year and increased by the loss allocable
to such total amount for the Plan Year. The income
distributable with respect to Excess Aggregate Contributions
for the period between the end of the Plan Year and the date
of the corrective distribution shall equal 10% of the income
allocable to Excess Aggregate Contributions for the prior Plan
Year multiplied by the number of calendar months which elapsed
since the end of such Plan Year. For this purpose, a
distribution occurring on or before the 15th day of the month
shall be treated as having been made on the last day of the
preceding month and a distribution after such date shall be
treated as having been made on the 1st day of the next month.
(10) Excess Aggregate Contributions shall be
distributed from the Participant's Matching Contributions
Account; provided, however, that in no case shall the amount
of Excess Aggregate Contributions with respect to any Highly
Compensated Employee exceed the amount of Matching
Contributions on behalf of such Employee for the Plan Year.
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(c) Aggregate Contribution Limitation. The amount of
the Company's contribution for any Fiscal Year under Section 4.1(a)
hereof shall not exceed the smaller of:
(1) 15% of the aggregate Compensation paid to all
Participants in the Fiscal Year; provided, however, that the
total contribution shall not exceed the maximum amount
deductible under the provisions of Code Section 404; or
(2) The aggregate individual Participant
limitations set forth under Section 415 of the Code as applied
in accordance with Section 6.3.
If the amount of the Company contribution with respect to any Fiscal
Year shall subsequently be determined to have exceeded the amount
deductible for such Fiscal Year under the provisions of Section 404 of
the Code, the portion of such contribution so determined not to be
deductible shall reduce in a like amount the contribution of the Company
with respect to the Fiscal Year in which said determination is made, or
with respect to the next succeeding Fiscal Year or Years, should the
amount of such excessive contributions exceed the amount of the Company
contribution for the Fiscal Year or Years in which such determination is
made.
(d) Time of Payment. The Salary Deferral Contributions,
Discretionary Contributions, Mandatory Contributions, Qualifying
Contributions, and Matching Contributions to be made by the Company to
the Trust Fund for a Plan Year shall be paid to the Trustee at any time
on or before the date on which the federal income tax return of the
Company is due for such year (including extensions of time granted for
filing such return) and, no later than the end of the 12-month period
immediately following the Plan Year to which the Contributions relate.
(e) Allocation Among Participating Companies. Each
annual contribution made by the Company and each Participating Company
shall be charged between and paid by each such Company on the basis that
the annual contribution is allocated in accordance with Article IV, to
the accounts of Participants employed by it during the year for which
the contribution is made.
(f) Multiple Use of 2-2% Test. In order to prevent
multiple use of the 2-2% Tests under Sections 4.1(b)(ii) and
4.2(a)(3)(ii). respectively, the sum of the Actual Deferral Percentage
of Participants who are Highly Compensated Employees and the
Contribution Percentage of Participants who are Highly Compensated
Employees, after the elections referred to in Sections 2.3(a) and
2.13(a), and after the corrective distribution of any Excess Deferral
Amount, as defined in Section 4.2(a), Excess Deferral Contributions, and
Excess Aggregate Contributions have been made without regard to this
Section, may not exceed the greater of:
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(1) The sum of
(A) 125% of the greater of (i) the Actual
Deferral Percentage of the group of Non-Highly
Compensated Employees eligible under the Plan, or (ii)
the Contribution Percentage of the group of Non- Highly
Compensated Employees eligible under the Plan, and
(B) 2 plus the lesser of (i) or (ii) of
Section 4.1(f) (1) (A) above but in no event more than
200% of the lesser of (i) or (ii) of Section 4.1(f) (1)
(A); or
(2) The sum of
(A) 125% of the lesser of (i) the Actual
Deferral Percentage of the group of Non-Highly
Compensated Employees eligible under the Plan or (ii) the
Contribution Percentage of the group of Non-Highly
Compensated Employees eligible under the Plan, and
(B) 2 plus the greater of (i) or (ii) of
Section 4.1(f) (2) (A), but in no event more than 200% of
the greater of (i) or (ii) of Section 4.1(f)(2)(A).
For purposes hereof, multiple use only occurs if both the Actual
Deferral Percentage and the Contribution Percentage (determined
separately) of Participants who are Highly Compensated Employees exceeds
125% multiplied by the respective Actual Deferral Percentage and
Contribution Percentage of the Participants who are Non-Highly
Compensated Employees.
If the Actual Deferral Percentages and the
Contribution Percentages do not satisfy this Section 4.1(f), either or
both (1) the Actual Deferral Percentage for such Participants who are
Highly Compensated Employees, or (2) the Contribution Percentage for
such Participants who are Highly Compensated Employees shall be reduced,
as determined by the Committee, so as to satisfy this Section 4.1(f) by
reducing contributions made on behalf of Participants who are Highly
Compensated Employees in order of their ratios calculated under either
the Actual Deferral Percentage or the Contribution Percentage. If the
required reduction is corrected by reducing the Actual Deferral
Percentage of Participants who are Highly Compensated Employees, the
reduced amount shall be treated as an Excess Deferral Contribution. If
the required reduction is corrected by reducing the Contribution
Percentage of Participants who are Highly Compensated Employees, the
reduced amount shall be treated as an Excess Aggregate Contribution.
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(g) Notwithstanding any other provision of this
Agreement, the Company may recover a contribution under the following
circumstances:
(1) Pursuant to Section 403(c) (2) of the Act, the
Company may recover a contribution if it was made by mistake
of fact, or conditioned upon the initial qualification of the
Plan or any amendment thereof or upon the deductibility of the
contribution under Section 404 of the Code. In order to
recover such contribution, the Company must make a written
request to the Trustee, and the contribution must be returned
within 1 year after the payment of the contribution, the
denial of the qualification (but only if the application for
the determination of qualification is made by the time
prescribed by law for filing the Company's return for the
taxable year in which the Plan was adopted) or the
disallowance of the deduction (to the extent disallowed),
respectively; or
(2) Pursuant to Section 403(c)(3) of the Act and
Section 4972(c) (3) of the Code, the Company may recover a
contribution which would otherwise be an excess contribution
for any taxable year, as defined in Section 4972(c) (1) of the
Code, if the Plan fails to initially qualify or the
contribution is not deductible under Section 404 of the Code.
In order to recover such contribution, the Company must make a
written request to the Trustee, and the contribution must be
returned on or before the last day on which a contribution may
be made for such taxable year.
4.2 Participant Contributions.
(a) Salary Deferral Contributions. Each eligible
Participant whose Salary Deferral Contributions have not been suspended
as provided herein, may elect to have allocated to his Salary Deferral
Account based on the payroll period of the Company applicable to such
Participant any percentage of Compensation to be paid to him during such
payroll period which is not less than 2% nor more than 12% of the
Compensation (before deducting the Salary Deferral Contribution
allocated to his Account hereunder) paid to such Participant for such
payroll period, subject to the limitations set forth in Section 6.3 and
to the following:
(1) No Participant shall be permitted to make
Salary Deferral Contributions during any calendar year in
excess of $7,000 multiplied by the Adjustment Factor.
If, in any calendar year, a Participant's
aggregate Salary Deferral Contributions under this Plan, any
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other qualified cash or deferred arrangement (as defined in
Section 401(k) of the Code), simplified employer pension plan
(as defined in Section 408(k) of the Code), eligible deferred
compensation plan under Section 457 of the Code, and plan as
described under Section 501(c) (18) exceed $7,000 multiplied
by the Adjustment Factor, or if in combination with a tax
deferred annuity as defined in Section 403(b) of the Code
exceed $9,500, then no later than the first March 1 following
the close of such calendar year, the Participant shall notify
this Plan in writing, specifying (A) the amount of excess
deferral (the "Excess Deferral Amount") which the Participant
allocates to this Plan for the preceding calendar year and
claims a distribution, and (B) that if such Excess Deferral
Amount is not distributed, the excess plus amounts deferred
under other plans or arrangements described in Sections
401(k), 408(k), 457, 501(c) (18), and 403(b) of the Code will
exceed the dollar limitation imposed for the calendar year
under Section 402(g) of the Code.
If any Participant timely submits a claim,
then, notwithstanding any other provision of this Plan, no
later than the first April 15 following the close of the
calendar year, any Excess Deferral Amounts allocated to this
Plan and income allocable thereto shall be distributed to the
Participant. The Excess Deferral Amount that may be
distributed to a Participant for a Plan Year shall be reduced
by any Excess Deferral Contribution previously distributed
with respect to such Participant for the Plan Year. Excess
Deferral Amounts plus any income and minus any loss allocable
thereto shall be designated by the Company as a distribution
of Excess Deferral Amounts (and income) and distributed by the
April 15 following the close of the calendar year for which
such deferrals are made.
The income or loss allocable to Excess Deferral
Amounts shall be determined by multiplying the income or loss
allocable to the Participant's Salary Deferral Contributions
for the calendar year by a fraction, the numerator of which is
the Excess Deferral Amount on behalf of the Participant for
the calendar year and the denominator of which is the amount
of the Participant's Account balance attributable to Salary
Deferral Contributions on the last day of the calendar year,
reduced by the gain allocable to such total amount for the
Plan Year and increased by the loss allocable to such total
amount for the Plan Year.
Prior to January 1, 1992, the income
distributable with respect to Excess Deferral Amounts for the
period between the end of the calendar year and the date of
the corrective distribution shall be determined in accordance
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with the Plan as then in effect. On and after January 1,
1992, the income distributable with respect to Excess Deferral
Amounts for the period between the end of the calendar year
and the date of the corrective distribution shall equal 10% of
the income allocable to the Participant's Excess Deferral
Amounts for the prior Plan Year as determined under the
preceding paragraph, multiplied by the number of calendar
months which elapsed since the end of such prior Plan Year.
For this purpose, a distribution occurring on or before the
15th day of the month shall be treated as having been made on
the last day of the preceding month, and a distribution after
such date shall be treated as having been made on the 1st day
of the next month.
(2) All elections shall be made at the time and in
the manner and subject to the conditions specified by the
Administrative Committee, which shall prescribe uniform and
nondiscriminatory rules for such elections.
(3) In any Plan Year, the Actual Deferral
Percentage for the Salary Deferral Contributions of Highly
Compensated Participants shall not exceed the greater of:
(i) the Actual Deferral Percentage of all
Participants who are Non-Highly Compensated Employees
multiplied by 1.25 (the "1.25 Test"), or
(ii) the lesser of the Actual Deferral
Percentage of all Participants who are Non-Highly Compensated
Employees multiplied by 2, or 2 percentage points plus the
Actual Deferral Percentage of all Participants who are Non-
Highly Compensated Employees (the "2-2% Test"); provided,
however, if the 2-2% Test of Section 4.1(b)(ii) is also used
to satisfy the Contribution Percentage test of Section 4.1(b),
the Contribution Percentage and the Actual Deferral Percentage
must together satisfy Section 4.1(f).
For purposes of this Section 4.2(a)(3), the
following rules shall apply:
(A) The Administrative Committee may treat any
portion or all of the Matching Contributions,
Discretionary Contributions, Mandatory Contributions, and
Qualifying Contributions as Salary Deferral Contributions
provided that:
(i) All Discretionary Contributions,
Mandatory Contributions, and Qualifying
Contributions, including the Discretionary
Contributions, Mandatory Contributions and
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Qualifying Contributions treated as Salary Deferral
Contributions for purposes of Section 4.2(a)(3) do
not discriminate in favor of Highly Compensated
Employees in a manner prohibited by Code Section
401(a) (4).
(ii) All Discretionary Contributions,
Mandatory Contributions, and Qualifying
Contributions, excluding (I) those Discretionary
Contributions, Mandatory Contributions, and
Qualifying Contributions that are treated as Salary
Deferral Contributions for purposes of this Section
4.2(a)(3), and (II) those Discretionary
Contributions, Mandatory Contributions and
Qualifying Contributions that are treated as
Matching Contributions for purposes of Section
4.1(b) do not discriminate in favor of Highly
Compensated Employees in a manner prohibited by Code
Section 401(a)(4).
(iii) Matching Contributions,
excluding Discretionary Contributions, Mandatory
Contributions and Qualifying Contributions and
Matching Contributions that are treated as Salary
Deferral Contributions for purposes of this Section
4.2(a) (3) satisfy the Contribution Percentage test
of 4.1(b).
(iv) Except as provided in (i) and (iii)
above, the Discretionary Contributions, Mandatory
Contributions, Qualifying Contributions, and
Matching Contributions treated as Salary Deferral
Contributions for purposes of this Section 4.2(a)
(3) are not taken into account in determining
whether any other contributions or benefits satisfy
the nondiscrimination requirements of Code Section
401(a)(4) and are not taken into account in
determining whether other Matching Contributions
meet Section 4.1(b).
(B) The Actual Deferral Percentage for any
Participant who is a Highly Compensated Employee for the
Plan Year and who is eligible to have Salary Deferral
Contributions and, if applicable, Matching Contributions,
Mandatory Contributions, Discretionary Contributions, and
Qualifying Contributions allocated to his account under 2
or more plans or arrangements described in Section 401(k)
of the Code that are maintained by the Company or a
Related Company shall be determined as if all such Salary
Deferral Contributions and, if applicable, Matching
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Contributions, Mandatory Contributions, Discretionary
Contributions, and Qualifying Contributions were made
under a single arrangement.
(C) If an eligible Highly Compensated Employee
is subject to the family aggregation rules of Section
414(q) (6) because such Employee is either a 5% owner or
one of the 10 most Highly Compensated Employees, the
combined Actual Deferral Percentage ratio for the family
group (which is treated as 1 Highly Compensated Employee)
shall equal the Actual Deferral Percentage ratio
determined by combining the Salary Deferral
Contributions, Compensation and Matching Contributions,
Mandatory Contributions, Discretionary Contributions, and
Qualifying Contributions treated as Salary Deferral
Contributions of all the eligible Family Members.
If the Highly Compensated Employee's
Actual Deferral Percentage ratio was calculated in
accordance with this Section 4.2(a) (3) (C), the Actual
Deferral Percentage ratio shall be reduced as required
under Section 4.2(a) (3) (E) below, and the Excess
Deferral Contributions for a family unit are to be
allocated among family members in proportion to the
contributions of each family member that are combined to
determine the Actual Deferral Percentage ratio.
(D) If an employee is required to be
aggregated as a member of more than 1 family group in a
plan, all eligible employees who are members of those
family groups that include that employee shall be
aggregated as 1 family group.
(E) Notwithstanding anything to the contrary
herein, the Administrative Committee, in its discretion,
may limit Salary Deferral Contributions of Highly
Compensated Employees in a manner that prevents
contribution of Excess Deferral Contributions.
Alternatively, if in applying Section 4.2 (a), there are
Excess Deferral Contributions, the amount of the Excess
Deferral Contributions for a Highly Compensated Employee
shall be determined under a leveling method pursuant to
which the actual deferral ratio of the Highly Compensated
Employee with the highest actual deferral ratio is
reduced to the extent required to satisfy the Actual
Deferral Percentage test or cause the Highly Compensated
Employee's actual deferral ratio to equal the ratio of
the Highly Compensated Employee with the next highest
actual deferral ratio. The foregoing shall be repeated
until the Actual Deferral Percentage test is satisfied.
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(F) Participants shall not include (i)
Employees who have not yet reached their Entry Dates
under Section 5.1; and (ii) Employees who were separated
from service prior to their Entry Dates.
(G) The determination of the Actual Deferral
Percentage of any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of the
Treasury.
(H) Excess Deferral Contributions plus any
income and minus any loss allocable thereto shall be
designated by the Company as a distribution of Excess
Deferral Contributions (and income) and distributed if
feasible within 2-1/2 months after the close of the Plan
Year for which such Contributions are made but in no
event later than the last day of the subsequent Plan Year
to the appropriate Highly Compensated Employees to whose
accounts such Excess Deferral Contributions were
allocated for the preceding Plan Year.
(I) The income or loss allocable to Excess
Deferral Contributions shall be determined by multiplying
income or loss allocable to the Participant's Salary
Deferral Contributions (and Matching Contributions,
Mandatory Contributions, Discretionary Contributions, and
Qualifying Contributions, if applicable) for the Plan
Year by a fraction, the numerator of which is the Excess
Deferral Contribution on behalf of the Participant for
the Plan Year and the denominator of which is the
Participant's Account balance attributable to Salary
Deferral Contributions (and Matching Contributions,
Mandatory Contributions, Discretionary Contributions, and
Qualifying Contributions, if applicable) on the last day
of the Plan Year, reduced by the gain allocable to such
total amount for the Plan Year and increased by the loss
allocable to such total amount for the Plan Year. Prior
to January 1, 1992, the income or loss allocable to
Excess Deferral Contributions shall be determined in
accordance with the Plan as then in effect. On and after
January 1, 1992, the income distributable with respect to
Excess Deferral Contributions for the period between the
end of the Plan Year and the date of the corrective
distribution shall equal 10% of the income or loss
allocable to Excess Deferral Contributions for the prior
Plan Year multiplied by the number of calendar months
which elapsed since the end of the prior Plan Year. For
this purpose, a distribution occurring on or before the
15th day of the month shall be treated as having been
made on the last day of the preceding month, and a
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distribution after such date shall be treated as having
been made on the 1st day of the next month.
(4) A Participant may change the rate of Salary
Contributions to his Account no more than 4 times per Plan
Year. In addition, a Participant may make a special election
to defer all or a portion (which may be zero) of any bonus he
receives during a calendar year, subject to this Section
4.2(a). A Participant may at any time elect to suspend all
Salary Deferral Contributions to his Account. Prior to
January 1, 1993, a Participant who has suspended Salary
Deferral Contributions may not thereafter recommence
contributions until the January 1, April 1, July 1, or October
1 next following the date as of which he suspended
contributions to his Account. On and after January 1, 1993,
such a Participant may recommence contributions at any time;
provided, however, that a Participant may not suspend and
recommence contributions more than 4 times per Plan Year.
(b) Voluntary After-Tax Contributions. No voluntary
after-tax contribution shall be received from any Participant.
(c) No Limitations on Investment Authority. The fact
that the Trust Fund may include contributions by Participants through a
reduction of their Compensation or otherwise shall not require or
warrant any limitation on the investment authority conferred upon the
Trustee by Article X. Neither the Company, the Administrative
Committee, nor the Trustee shall be deemed to have guaranteed or be
liable for the assured return to a Participant or any other person of
the total of the Participant's Salary Deferral Contributions and
Rollover Contributions delivered to the Trustee, and neither the
Participant nor any other person shall have an enforceable claim
therefor except as the Participant's fully vested share of the Trust
Fund, including any balance of his own Salary Deferral Account, shall be
adequate to satisfy such claim.
4.3 Rollover Contributions.
(a) With the consent of the Administrative Committee,
any Employee may transfer amounts to this Trust from other qualified
plans, provided that:
(1) the trust from which said funds are transferred
permits such transfer;
(2) such transfer will not jeopardize the tax
exempt status of the Plan or trust or create adverse tax
consequences to the Company; and
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The Trustee shall establish and maintain in its records a "Rollover
Account" for each such Employee upon transfer of such amounts.
(b) An Employee's Rollover Account shall be held by the
Trustee pursuant to the provisions of this Plan. Such Account shall be
fully vested at all times and shall not be subject to forfeiture for any
reason.
(c) At his Normal Retirement Date, or such other date as
of which the Employee or his Beneficiary shall be entitled to receive
benefits, the then value of the Employee's Rollover Account shall be
used to provide additional benefits to the Employee or his Beneficiary
in the form of distribution made with respect to benefits allocable to
Company contributions under Article VII.
(d) For purposes of this Section 4.3, amounts
transferred from another qualified plan shall refer to:
(1) amounts transferred to this Plan directly from
another qualified plan;
(2) lump-sum distributions received by an Employee
from another qualified plan which are eligible for tax-free
rollover treatment and which are transferred by the Employee
to this Plan within 60 days following his receipt thereof;
(3) amounts transferred to this Plan from a conduit
individual retirement account, provided that the conduit
individual retirement account has no assets other than assets
which were previously distributed to the Employee by another
qualified plan (other than an individual retirement account)
as a lump-sum distribution which were eligible for tax-free
rollover treatment and which were deposited in such conduit
individual retirement account within 60 days of receipt
thereof other than earnings on said assets; and
(4) amounts distributed to an Employee from a
conduit individual retirement account meeting the requirements
of (3), and transferred by an Employee to this Plan within 60
days of his receipt thereof from such conduit individual
retirement account.
Prior to accepting any transfers to which this Section applies the
Committee may require the Participant to establish that the amounts to
be transferred to this Plan meet the requirements of this Section and
may also require the Participant to provide an opinion of counsel
satisfactory to the Company that the amounts to be transferred meet the
requirements of this Section.
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(e) Rollover Contributions shall be subject to the
following:
(1) Rollover Contributions shall be deemed a
separate Fixed Credit Account and shall be treated in the same
manner as all other contributions for purposes of
distributions and for purposes of investments.
(2) Rollover Contributions shall not be subject to
the limitations of Section 6.1(b).
(3) Rollover Contributions shall be treated along
with other amounts for purposes of annual adjustments under
Section 6.2.
ARTICLE V
ELIGIBILITY, PARTICIPATION AND HOURS OF SERVICE
5.1 Eligibility. An Employee shall have his eligibility to
participate in this Plan determined as follows:
(a) Any Employee who was a Participant in the Plan on
December 31, 1991, shall be a Participant in the Plan on and after
January 1, 1992, subject to the rules regarding continuation of
participation as described in this Article V. For the period commencing
January 1, 1992 and ending December 31, 1992, an Employee shall be a
Participant on the January 1 or
July 1 following the later of (1) the occurrence of 6 months from his
Employment Commencement Date or (2) his attainment of age 18.
(b) On and after January 1, 1993, an Employee shall be
eligible to be a Participant in the Plan as follows:
(l) For all Employees, for purposes of making
Salary Deferral Contributions and receiving allocations of
Qualifying Contributions, as of the date coincident with the
later of:
(A) his Employment Commencement Date, or
(B) the date he attained the age of 18 years;
(2) For Non-Union Employees, for purposes of
receiving allocations of Matching Contributions, Mandatory
Contributions and Discretionary Contributions, as of the
January 1 or July 1 coincident with or next following the
later of:
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(A) the first anniversary of his Employment
Commencement Date (or, in the case of a rehired Employee
who incurred a Break in Service, his Reemployment
Commencement Date) if he shall have completed at least
1,000 Hours of Service during such period, or, if not,
the last day of the first Plan Year commencing
immediately following his Employment Commencement Date
(or Reemployment Commencement Date, if applicable) in
which he shall have completed at least 1,000 Hours of
Service with the Company, a Related Company or a
Predecessor Company; or
(B) the date he attained the age of 18 years.
Such date shall be referred to herein as the "Entry Date."
(c) Any Participant who, after July 1, 1991, has a
Separation from Employment shall lose his eligibility to participate as
of the date of Separation from Employment and, upon rehire, shall
immediately be eligible to participate in the Plan.
(d) Any Employee who, after July 1, 1991, becomes an
Employee as the result of being transferred from a classification not
covered under the Plan or from a Related Company that has not adopted
the Plan shall immediately be eligible to participate in the Plan,
provided he has satisfied the conditions of Section 5.1(b).
(e) A leased employee who is deemed to be an Employee
under Section 2.17 hereof, shall become a Participant in and accrue
benefits under the Plan based on service as a leased employee. For
purposes of the Plan, a "leased employee" means any person (other than
an employee of the recipient) who pursuant to an agreement between the
recipient and any other person ("leasing organization") has performed
services for the recipient (or for the recipient and related persons
determined in accordance with Section 414(n) (6) of the Code) on a
substantially full-time basis for a period of at least 1 year, which
services are of a type historically performed by employees in the
business field of the recipient employer; provided, however, that if the
Internal Revenue Service issues any change in regulations governing the
definition of leased employee, the term "leased employee" shall, as of
the effective date of such change, be defined in accordance with such
regulations. Contributions or benefits provided a leased employee by
the leasing organization which are attributable to services performed
for the recipient employer shall be treated as provided by the recipient
employer.
5.2 Participation.
(a) Participation in Salary Deferral Contributions.
During the continuance of his eligibility as set forth in Section 5.1
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hereof, an Employee may commence his participation in Salary Deferral
Contributions by a timely written election pursuant to Section 4.2(a)
hereof to have Salary Deferral Contributions made to the Plan by
indicating his acceptance of and agreement to all the provisions of the
Plan, and by execution of an investment selection form, if applicable,
and a beneficiary designation form on forms provided by the
Administrative Committee.
(b) Participation in Discretionary, Mandatory and
Qualifying Contributions. A Non-Union Employee who is a Participant
hereunder shall continue to be eligible to participate until he loses
his eligibility under Section 5.1(c) hereof, but shall not be entitled
to participate in any Discretionary Contributions (other than Top Heavy
Contributions, if any, required by Section 8.1). or Mandatory
Contributions (other than Top Heavy Contributions, if any, required by
Section 8.1) unless he is an Active Participant. In addition, if the
Company shall make a Discretionary Contribution, Mandatory Contribution
or Qualifying Contribution to the Plan at a time when an Employee is
eligible to be a Participant but he has not elected to have Salary
Deferral Contributions made to the Plan, the Employee shall
automatically become a Participant retroactively to the beginning of the
period with respect to which the Discretionary Contribution, Mandatory
Contribution or Qualifying Contribution is made or, if later,
retroactive to the date the Employee is eligible to be a Participant.
5.3 Service.
(a) Hour of Service. An Hour of Service means:
(1) An Hour of Service is each hour for which an
Employee is paid, or entitled to payment, for the performance
of duties for the Company, or a Related or Predecessor
Company, without regard to whether he is then an Employee or
eligible to participate in the Plan, during the applicable
computation period. Hours of Service shall be credited to the
computation period in which the duties are performed. Credit
shall be given for the hours actually worked irrespective of
the rate of pay for such hours.
(2) An Hour of Service is each hour for which an
Employee is paid, or entitled to payment by the Company, or a
Related or Predecessor Company, without regard to whether he
is then an Employee or eligible to participate in the Plan, on
account of a period of time during which no duties are
performed (irrespective of whether the employment relationship
has terminated) due to vacation, holiday, illness, incapacity
(including disability), layoff, jury duty, military duty or
leave of absence. Notwithstanding the preceding sentence:
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(A) No more than 501 Hours of Service are
required to be credited under this paragraph (a) (2) to
an Employee on account of any single continuous period
during which the Employee performs no duties (whether or
not such period occurs in a single computation period);
(B) An hour for which an Employee is directly
or indirectly paid, or entitled to payment, on account of
a period during which no duties are performed is not
required to be credited to the Employee if such payment
is made or due under a plan maintained solely for the
purpose of complying with applicable worker's
compensation, or unemployment compensation or disability
insurance laws; and
(C) Hours of Service are not required to be
credited for a payment which solely reimburses an
Employee for medical or medically related expenses
incurred by the Employee.
For purposes of this paragraph (a)(2), a
payment shall be deemed to be made by or due from the Company,
or a Related or Predecessor Company, regardless of whether
such payment is made by or due from the Company. or a Related
or Predecessor Company, directly or indirectly through, among
others, a trust fund or insurance company, to which the
Company, or a Related or Predecessor Company, contributes or
pays premiums and regardless of whether contributions made by
or due to the trust fund, insurer or other entity are for the
benefit of particular Employees or are on behalf of a group of
Employees in the aggregate. Hours of Service credited
hereunder on account of a payment calculated on the basis of
units of time, such as hours, days, weeks or months, shall be
credited to the computation period or periods in which occurs
the period when no duties are performed, beginning with the
first unit of time to which the payment relates. If payment
is not calculated on the basis of units of time, these Hours
shall be credited to the computation period during which no
duties are performed, or if the period during which no duties
are performed extends beyond 1 computation period, such Hours
shall be allocated, as determined by the Committee, between
not more than the first 2 computation periods on any
reasonable basis consistently applied to all Employees within
the same job classification.
(3) An Hour of Service is each hour for which back
pay, irrespective of mitigation of damages, is either awarded
or agreed to by the Company, or a Related or predecessor
Company. Crediting of Hours of Service for back pay awarded
or agreed to with respect to periods described in paragraph
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(a) (2) shall be subject to the limitations set forth in that
paragraph. These Hours of Service shall be credited to the
computation period or periods to which the award or agreement
pertains; provided. however, that the Committee, in its sole
discretion but acting consistently for all Employees within
the same job classification, may, with respect to a period of
not more than 31 days which extends beyond 1 computation
period, credit all Hours of Service to the first computation
period or the second computation period.
(4) For purposes of construing paragraphs (2) and
(3) hereof, the special rules for determining Hours of Service
for reasons other than the performance of duties as set forth
in 29 C.F.R. Part 2530, Subsection 2530.200b-2(b) are by this
reference incorporated herein.
(5) Employees (A) whose Compensation is not
determined on the basis of specified amounts for each Hour of
Service worked during a given period, (B) whose hours are not
required to be counted and recorded by any federal law, and
(C) whose hours are not specifically counted and recorded by
the Company, a Related Company or a Predecessor Company, shall
be credited with Hours of Service at the rate of 45 Hours of
Service per week for any week during which they would
otherwise be credited with at least 1 Hour of Service
hereunder.
(6) For purposes of computing the Hours of Service
of an Employee whose service with the Company, or a Related or
Predecessor Company, as calculated under paragraph (1), (2),
(3), (4) or (5) hereof, is interrupted on account of:
(A) absence due to service in the armed forces
of the United States, provided that the Employee shall
have applied for reemployment within 90 days after the
earlier of (i) termination of such service, or (ii) 4
years of such service or such other greater period as may
be provided under the Vietnam Era Veterans' Readjustment
Act of 1974, as amended from time to time, and shall have
been accepted for such reemployment or
(B) a leave of absence for a period of not
more than 1 year, authorized by the Company under the
Company's standard personnel practices,
the period of interruption shall be considered a period of
regular employment during which the Employee is credited based
on a 40-hour week or a pro rata portion thereof. The
discretion in the Company to grant or withhold consent to a
leave of absence of an Employee shall not be exercised in such
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manner as to discriminate in favor of shareholders, persons
whose principal duties consist of supervising the work of
other Employees or Highly Compensated Employees. If a
Participant does not return to active service with the Company
upon termination of his leave of absence, the date of
termination of such leave of absence shall be considered as
the date of termination of such Participant's employment with
the Company.
(7) Anything to the contrary herein
notwithstanding, an Employee entitled to credit for an Hour of
Service under any of the provisions of this Section 5.3(a),
shall not be entitled to any additional credit for the same
Hour of Service under any other provision of this Section
5.3(a).
(b) Break in Service. An Employee shall be deemed to
have a Break in Service on the first day of the Plan Year during which
he has not completed more than 500 Hours of Service with the Company or
a Related Company.
5.4 Information to be Furnished. At the time any
contribution shall be made to the Trust as provided for in Article IV,
the Company shall file with the Trustee a list containing the names of
those persons who on December 31 of the calendar year for which such
contribution shall be made, shall meet (or shall have met) the
eligibility requirements set forth in Article V. and opposite the name
of each such person in such list there shall be set forth the following:
(a) His address;
(b) Date of his birth;
(c) His Employment Commencement Date;
(d) Date on which he became a Participant;
(e) His Compensation during the Plan Year; and
(f) Such other pertinent information as the Trustee or
the Administrative Committee shall request.
At the same time, the Company shall furnish to the Trustee a list of the
names of persons who ceased to be Participants during the preceding
calendar year, with a statement of the date and reason such persons
respectively ceased being Participants. Information furnished under this
Article V shall be kept confidential, except to the extent necessary for
administration of the Plan.
ARTICLE VI
ALLOCATION TO PARTICIPANT ACCOUNTS
6.1 Creation of Accounts. Upon receipt of each
contribution to the Trust Fund, the Trustee shall forthwith establish or
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adjust in its records a Provisional Credit Account or Accounts for each
Participant and shall make memorandum credits and charges to each such
account as provided under this Plan. The Provisional Credit Account of
a Participant who is a Non-Union Employee shall have 6 separate sub-
accounts, a Salary Deferral Account, a Matching Contributions Account, a
Mandatory Contributions Account, a Discretionary Contributions Account,
a Qualifying Contributions Account, and a Rollover Account. The
Provisional Credit Account of a Participant who is a Union Employee
shall have 3 separate sub-accounts, a Salary Deferral Account, a
Qualifying Contributions Account and a Rollover Account. The
maintenance of individual sub-accounts is only for accounting purposes,
and a segregation of the assets of the Trust Fund to each account shall
not be required. Distribution and withdrawals made from a sub-account
shall be charged to the sub-account as of the date paid.
6.2 Adjustments to Accounts. The Provisional Credit Accounts
of Participants, former Participants and Beneficiaries shall be adjusted
in accordance with the following:
(a) Valuation of Fund. On each Valuation Date, the
Trustee or Insurance Company, if applicable, shall determine the net
increase or decrease in the fair market value of the Fund, excluding
insurance policies, individual annuity contracts, or allocated group
annuity contracts, and shall equitably allocate the result thereof to
each Participant's Account. Such determination shall include realized
and unrealized gains and losses, investment income and losses, and
applicable expenses. Such realized and unrealized gains and losses
shall be allocated on a fair and equitable basis under a method
specified by the Trustee or Insurance Company, if applicable. A
Participant's interest in an individual annuity contract or allocated
group annuity contract shall be determined at the annuity contract value
and changes in such value shall be allocated to the Account of such
Participant. Such determinations, other than on the first Valuation
Date, shall not include contribution or forfeiture allocations.
Notwithstanding anything to the contrary herein, the
amounts in a Participant's Salary Deferral Account shall at all times be
separately accounted for from amounts in a Participant's Matching
Contributions Account, amounts in a Participant's Discretionary
Contributions Account, amounts in a Participant's Qualifying
Contributions Account, and amounts in a Participant's Mandatory
Contributions Account, and Rollover Account by allocating investment
gains and losses on each subaccount on a reasonable pro rata basis, and
by separately adjusting the sub-accounts of a Participant's Account for
withdrawals, distributions and contributions. Gains, losses,
withdrawals, distributions, forfeitures, and other credits or charges
shall be separately allocated between such sub-accounts on a reasonable
and consistent basis.
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(b) Mandatory Contributions. Subject to allocation of
the Top Heavy Contribution under Section 8.1, as of the end of each Plan
Year, the Company's Mandatory Contributions for the Year under Section
4.1(a)(3) shall be allocated among those Active Participants who are
Non-Union Employees and who were in the employ of the Company on the
last day of the Plan Year, or who attained the status of Retirement, or
who became totally and permanently disabled during the Plan Year, or who
died after July 1 of the Plan Year according to the ratio that each such
Active Participant's Compensation for the Plan Year bears to the total
Compensation per Participant of all such Active Participants for the
Plan Year.
(c) Discretionary Contributions. Subject to allocation
of the Top Heavy Contribution under Section 8.1, as of the end of each
Plan Year, the Company's Discretionary Contributions, if any, under
Section 4.1(a)(4) shall be allocated among those Active Participants who
are Non-Union Employees and who were in the employ of the Company on the
last day of the Plan Year, or who attained the status of Retirement, or
who became totally and permanently disabled during the Plan Year or who
died after July 1 of the Plan Year in the same manner as the Company's
Mandatory Contributions are allocated pursuant to subsection (b) of this
Section 6.2, except that Discretionary Contributions shall be allocated
to the Provisional Credit Accounts of Participants only after the
Mandatory Contributions have been allocated for the Plan Year.
(d) Salary Deferral Contributions. A Participant's
Salary Deferral Contributions for any period between Valuation Dates
shall be allocated to his Salary Deferral Account as of the end of such
period.
(e) Matching Contributions. The Company's Matching
Contributions for any period between Valuation Dates shall be allocated
to the Matching Contributions Account of each Participant who is a Non-
Union Employee as of the Valuation Date occurring at the end of such
period as provided in Section 4.1(a)(2).
(f) Qualifying Contributions. As of the end of each
Plan Year, the Company's Qualifying Contributions for the Year under
Section 4.1(a)(5) shall be allocated among Participants as follows:
(1) If such Contribution is designated as a
Qualifying Non-Union Employee Contribution, it shall be
allocated to the Provisional Credit Account of Participants
who were Non-Union Employees and who were also Non-Highly
Compensated Employees and who were in the employ of the
Company on the last day of the Plan Year, or who attained the
status of Retirement, or who became totally and permanently
disabled during the Plan Year, or who died after July 1 of the
Plan Year, according to the ratio that each such Non-Highly
Compensated Participant's Compensation for the Plan Year bears
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to the total Compensation of all such Non-Highly Compensated
Participants for the Plan Year as designated by the Executive
Committee.
(2) If such Contribution is designated as a
Qualifying Union Employee Contribution, it shall be allocated
to the Provisional Credit Account of Participants who were
Union Employees and who were in the employ of the Company on
the last day of the Plan Year, or who attained the status of
Retirement, or who became totally and permanently disabled
during the Plan Year, or who died after July 1 of the Plan
Year, according to the ratio that each such Non-Highly
Compensated Participant's Compensation for the Plan Year bears
to the total Compensation of all such Non-Highly Compensated
Participants for the Plan Year as designated by the Executive
Committee.
(g) Forfeitures. As of the end of each Plan Year,
forfeitures which have become available for distribution during such
Year pursuant to Section 7.10 shall first be allocated and credited to
restore any forfeitures to the extent required under Section 7.10 and
second shall be used to provide Mandatory Contributions.
6.3 Limitations on Additions. The allocation to the Account
of any Participant for any Limitation Year due to Matching
Contributions, Salary Deferral Contributions, Mandatory Contributions,
Discretionary Contributions, Qualifying Contributions, forfeitures,
amounts allocable on behalf of the Participant to an individual medical
account and amounts attributable to post-retirement medical benefits
within the meaning of Sections 415(1) and 419A(d) of the Code,
respectively (collectively referred to herein as "annual additions")
shall not exceed the lesser of (a) $30,000 ($15,000 for the short
Limitation Year) (or, if greater, 25% of the defined benefit dollar
limitation set forth in Section 415(b)(1) of the Code for the Limitation
Year), or (b) 25% of the Participant's Compensation for the Plan Year.
The compensation limitation referred to in Section 6.3(b) shall not
apply to any contribution for medical benefits (within the meaning of
Section 401(h) or 419A(f)(2) of the Code) after separation from service
which is otherwise treated as an annual addition under Section 415(1) or
419A(d) of the Code. Contributions shall not fail to be considered
annual additions merely because such contributions are Excess Deferral
Amounts, Excess Contributions, or Excess Aggregate Contributions or
merely because such Excess Deferrals and Excess Contributions are
corrected through distribution or recharacterization.
Notwithstanding any other provision of this Plan, if any
annual additions are allocated under this and other defined contribution
plans maintained by the Company or any Related or Predecessor Companies
with respect to an Employee also participating in this Plan, and the
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contributions that would otherwise be contributed or allocated to the
Participant's account under this Plan would cause the annual additions
for the Plan Year to exceed said limitation, the amount contributed or
allocated will be reduced so that the amount allocated to the
Participant under all such Plans for each Plan Year will not exceed said
limitation, by first reducing Salary Deferral Contributions and
corresponding Matching Contributions under this Plan so as not to exceed
the foregoing limitation. If the annual additions with respect to the
Participant under such other defined contribution plans in the aggregate
are equal to or greater than said limitations, any amount contributed or
allocated to the Participant's Account for the Plan Year will be reduced
as aforesaid so as not to exceed said limitation.
In addition, if a Participant is a participant at any
time in this Plan and any defined benefit plan maintained by the Company
or any Related Companies, then the Company shall reduce the rate of
annual additions for such Participant in this Plan to the extent
necessary (in the manner set forth in the preceding paragraph) to
prevent the sum of the following fractions, computed as of the close of
the Plan Year, from exceeding 1.0:
(a) The Participant's projected annual benefit under the
defined benefit plans over the lesser of:
(1) The product of 1.25, multiplied by the dollar
limitation determined under Section 415(b) and (d) of the Code
for such Limitation Year; or
(2) The product of 1.4 multiplied by 100% of the
Participant's average Compensation, including any adjustments
under Section 415(b) of the Code, for the 3 consecutive Years
of Service with the Company that produces the highest amount.
For purposes hereof, the "Projected Annual Benefit"
is the annual retirement benefit (adjusted to an actuarially equivalent
straight life annuity if such benefit is expressed in a form other than
a straight life annuity) or qualified joint and survivor annuity to
which the Participant would be entitled under the terms of the plan
assuming the Participant will continue employment until Normal
Retirement Age under the plan (or current age, if later), and the
Participant's Compensation for the current Limitation Year and all other
relevant factors used to determine benefits under the plan will remain
constant for all future Limitation Years.
(b) The sum of the annual additions to the Participant's
account under this and any other defined contribution plans as of the
close of the Plan Year over the sum of the lesser of the following
amounts for such Year and for each prior Year of Service with the
Company:
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(i) The product of 1.25, multiplied by the dollar
limitation determined under Section 415(c)(1)(A) of the Code
for such year (determined without regard to subsection 415 (c)
(6)); or
(ii) The product of 1.4, multiplied by 25% of the
Participant's Compensation for such year.
For the purposes of computing the defined
contribution plan fraction for any year as referred to in Section 6.3(b)
hereof:
(1) "each prior Year of Service with the Company or
a Related or Predecessor Company" under Section 6.3(b) shall
include each Year of Service of a Participant as an employee
completed with a Predecessor Company as defined herein;
(2) with respect to such prior Years of Service
completed with a Predecessor Company, compensation under
Section 6.3(b)(ii) hereof includes "earned income" within the
meaning of Section 401(c)(2) of the Code;
(3) the "dollar limitation" applicable under
Section 6.3(b)(i) hereof during each of such prior Years of
Service with a Predecessor Company occurring on or before
January 1, 1976 shall be $25,000; and
(4) contributions made on behalf of the Participant
to a Plan established by any Predecessor Company shall be
included in computing the sum of the annual additions to the
Participant's Account under Section 6.3 (b)(ii) hereof.
For purposes of applying the foregoing, all employers of
a controlled group of corporations (as defined by Code Section 414(b)),
and all employers which are under common control (as defined by Code
Section 414(c), as modified by Code Section 414(h)), shall be considered
a single employer and included in the definition of the term "Company."
If the amount of annual additions to any Participant's
account are reduced by reason of this Section 6.3 and Section 415 of the
Code or if thereafter it is determined that the annual additions under
the Plan would cause the limitation of this Section 6.3 and Section 415
of the Code applicable to that Participant for the Limitation Year to be
exceeded as the result of reallocation of forfeitures, a reasonable
error in estimating the Participant's annual compensation or under other
limited facts and circumstances acceptable to the Commissioner of the
Internal Revenue Service, then the excess Salary Deferral amounts shall
be paid to the Participant in cash as soon as administratively feasible
and other amounts allocated (or reallocated) shall be reduced as above
provided. The Company shall advise an affected Participant of any
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limitation upon allocation to his Account required by this provision.
Anything in this Plan to the contrary notwithstanding, in no event shall
an allocation be made to any Participant which is in excess of the
revised limitations under Section 415 of the Code, as established under
the Tax Reform Act of 1986, and as amended.
ARTICLE VII
DISBURSEMENT OF BENEFITS
7.1 General.
(a) A Participant shall at all times be fully vested in
his entire Provisional Credit Account and in his entire Fixed Credit
Account.
(b) On the Valuation Date occurring after any
Participant terminates employment, as provided in this Trust, Trust
assets as selected by the Trustee, in an amount equal to the value of
all assets in each of such Participant's Accounts shall be segregated
from the Trust assets representing Provisional Credit Accounts and shall
be pooled as a Fixed Credit Account with such other Trust assets as
represent other Fixed Credit Accounts. Thereafter, said Fixed Credit
Account's Trust assets shall be administered as follows:
(1) As of each Valuation Date, the Trustee shall
adjust all Fixed Credit Accounts to reflect the net earnings
or net loss of the Fixed Credit Account's Trust assets and the
increase or decrease in the value of such assets, including a
charge representing a reasonable proportion of the Trustee's
fees and expenses, if any, allocable to such assets, as
determined by the Trustee.
(2) Said adjustments, as provided in (1) above,
shall be made in such proportion as the balance of each Fixed
Credit Account bears to the aggregate balance of all Fixed
Credit Accounts, both as of the Valuation Date. If the
Company authorizes more than 1 investment option, investment
gains and losses on each investment option shall be separately
allocated on a reasonable and consistent basis.
7.2 Retirement.
(a) Each Participant may be eligible for retirement
under the provisions of this Section 7.2 on or after his Normal
Retirement Date. A Participant shall give written notice to the
Administrator of his retirement at least 30 days prior to the date upon
which the retirement shall become effective.
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(b) In the event of any Participant's retirement, the
Trustee shall pay over and distribute to him the amount of his
Provisional or Fixed Credit Account as set forth in Section 7.6.
Retirement benefit payments will commence not later than the 60th day
after the end of the Plan Year in which the Participant's retirement
becomes effective unless the Participant otherwise elects, subject to
Section 7.6.
7.3 Death.
(a) In the event of the death of any Participant prior
to commencement of his benefit payments under this Plan, or subsequent
to commencement of his benefit payments if his benefit payments are not
being made in the form of a Single Life Annuity, Qualified Joint and
Survivor Annuity, or any other form of annuity, the Trustee shall pay
over and distribute the Provisional Credit Account or Fixed Credit
Account of such deceased Participant to his surviving Spouse in the form
of an annuity for such Spouse's lifetime, unless the amount of the
Participant's Account (prior to payment of any annuity payments) is not
more than $3,500, in which event it shall be distributed in a lump sum.
There shall be no cash out of the Participant's Account balance after
the commencement of annuity payments. However, a Participant entitled
to have his death benefit paid in the form of an annuity may elect that
distribution of such Account shall be made to his Spouse, or to his
designated Beneficiary if there is no such surviving Spouse, or if such
Spouse consents to distribution to such Beneficiary in a manner
conforming to a Qualified Election, in a lump sum or in any form
permitted under Section 7.6(b), as elected by the participant pursuant
to a Qualified Election under Section 7.6, if applicable. Distribution
shall commence immediately following the Participant's death, unless the
Participant otherwise elects and subject to Section 7.6. Alternatively,
the Participant's Spouse may, in the event of the Participant's death
without having made a Qualified Election that such benefits be paid to a
Beneficiary other than such Spouse, elect to receive the entire amount
of the Participant's Account Balance in a lump sum or in any other form
of payment permitted by Section 7.6(b), such payment to be made
commencing within 60 days after the Plan Year in which the Participant
dies, unless the Spouse elects immediate distribution.
If a Participant dies after commencement of benefits in
the form of a Single Life Annuity, Qualified Joint and Survivor Annuity,
or other form of annuity, payment shall only be made according to the
provisions of Section 7.6.
(b) Subject to Section 7.6 regarding a Qualified
Election, at the time any Employee becomes a Participant and at any time
or times thereafter he shall have power and authority to designate in
writing, on a form to be furnished for the purpose and to be filed with
the Trustee, the Beneficiaries who shall be entitled to receive any or
all amounts held under this Trust for such Participant at the time of
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his death. If any Participant shall have failed to designate a
Beneficiary at the time of his death and his death occurs before January
1, 1993, the Participant's Beneficiary shall be the executor or other
legal representative of the last to die of the Participant and
designated beneficiary. If any Participant shall have failed to
designate a Beneficiary at the time of his death, and his death occurs
on or after January 1, 1993, the Administrative Committee shall pay any
or all amounts held under this Trust for such Participant at the time of
his death to the following in the order named:
(1) such Participant's then living widow or
widower,
(2) such participant's then living children and
issue of any deceased children in equal shares by right
of representation,
(3) such Participant's then living father and
mother equally or to the survivor,
(4) such Participant's then living brothers and
sisters equally,
(5) such Participant's then living nephews and
nieces equally, or
(6) such Participant's estate;
such payment to be made in the form of a Single Life Annuity for the
Spouse of the Participant, if applicable, otherwise in a lump sum,
unless such Spouse or Beneficiary elects another form of benefit under
Section 7.6.
7.4 Disability.
(a) For Plan Years commencing prior to January 1, 1993,
a Participant shall be considered disabled for purposes of the Plan if
he is unable to engage in any substantial gainful activity by reason of
a medically determinable physical or mental impairment which can be
expected to result in death or to be of long-continued and indefinite
duration. The permanence and degree of such disablement shall be
supported by medical evidence.
(b) For Plan Years commencing on and after January 1,
1993, a Participant shall be considered disabled for purposes of the
Plan if he is totally and permanently disabled due to bodily injury,
disease or mental disorder as a result of which he is unable to perform
his usual and customary duties as an employee of the Company, as
evidenced by a certificate of a doctor selected by the Administrative
Committee.
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In the event of a Participant's disability as described
above, the Trustee shall pay to him or expend on his behalf the amount
of his Account as set forth in Section 7.6 hereof. Disability benefit
payments will commence within 60 days following the end of the Plan Year
in which the Participant's disability occurred unless the Participant
otherwise elects, subject to section 7.6. All payments to or for the
benefit of any specific Participant shall be charged to the Provisional
or Fixed Credit Account of such Participant, and no payments shall be
made to any Participant or expenditure made for his benefit in an amount
exceeding the balance in his Account.
7.5 Termination of Employment.
(a) If any Participant shall have a Separation From
Employment for any cause except retirement, death, or total and
permanent disability, the account of such Participant shall immediately
become fixed, and shall constitute his Account Credit.
(b) In the case of Separation from Employment, the
Participant's entire Account Credit shall be held as a Fixed Credit
Account upon and after his Separation from Employment as follows:
(1) If the Participant's Account balance derived
from Company contributions does not exceed $3,500 and if at
the time of any prior distribution it did not exceed $3,500,
the Trustee shall distribute the value of the Participant's
Account to the Participant immediately following his
termination of employment in a lump sum.
(2) If the Participant's Account balance derived
from Company contributions exceeds (or at the time of any
prior distribution exceeded) $3,500, the Trustee shall defer
the distribution of the Participant's Account until the
Anniversary Date coinciding with or immediately following his
Normal Retirement Date or his death or disability, if earlier,
unless the Participant elects to commence payment at an
earlier date, in which event payment will be made at the time
elected by the Participant as set forth in Section 7.6.
(3) If distribution is deferred, then in the event
of the Participant's death or disability, payment shall be
made to the Participant or his Beneficiary in accordance with
the provisions of Section 7.3 or 7.4.
(c) In any case of termination under the provisions of
this Section 7.5 prior to the last day of the Plan Year, there shall be
no allocation of current Company contributions or forfeitures to the
Account of the terminated Employee hereunder for the Plan Year in which
such termination occurs, except to the extent required under Section
8.1.
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7.6 Distributions.
(a) Annuity Requirements. Anything in this Plan to
the contrary notwithstanding, unless an optional form of benefit is
elected pursuant to a Qualified Election within the 90-day period ending
on the date the Participant's benefit payments otherwise would commence,
the Participant's Account balance will be paid in the form of a Single
Life Annuity if such Participant is not married on the date his benefit
payments are to commence, and in the form of a Qualified Joint and
Survivor Annuity if such Participant is married on the date his benefit
payments are to commence, in lieu of any other form of payment under
this Plan. The Single Life Annuity shall be an annuity for the life of
the Participant only, and shall be the amount of a single life annuity
that can be purchased with the Participant's Account balance. The
Qualified Joint and Survivor Annuity is an annuity for the life of the
Participant with a survivor annuity for the life of the Spouse of the
Participant which is equal to 50% of the amount of the annuity which is
payable during the joint lives of the Participant and his Spouse and
shall be the amount of joint and survivor benefit that can be purchased
with the Participant's Account balance. For purposes of the Qualified
Joint and Survivor Annuity the following shall apply:
(1) In order to waive a Qualified Joint and
Survivor Annuity the Participant must execute a waiver (a
"Qualified Election") which satisfies the following
requirements: (A) the waiver must be in writing; (B) the
Participant's Spouse must consent to the waiver in writing;
(C) the waiver must designate a beneficiary (or a form of
benefits) which may not be changed without the Spouse's
consent (unless the Spouse's consent expressly permits
designations by the Participant without any requirement of
further Spousal consent); (D) the Spouse's consent must
acknowledge the effect of the election and be witnessed by a
notary public. Notwithstanding this consent requirement, if
the Participant establishes to the satisfaction of the
Administrative Committee or Trustee that such written consent
may not be obtained because there is no Spouse or the Spouse
cannot be located, a waiver will be deemed a Qualified
Election. The Participant shall only be deemed to establish
to the satisfaction of the Administrative Committee that such
written consent may not be obtained because the Spouse cannot
be located by signing an affidavit to such effect witnessed by
a notary public. Any consent necessary hereunder will be
valid only with respect to the Spouse who signs the consent,
or in the event of a deemed Qualified Election, the designated
Spouse. Additionally, a revocation of a prior waiver may be
made by a Participant without the consent of the Spouse at any
time before the commencement of benefits. The number of
revocations shall not be limited.
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(2) For purposes hereof, a former Spouse shall be
treated as the Spouse or surviving Spouse of a Participant to
the extent provided under a Qualified Domestic Relations Order
as described in Section 414(p) of the Code.
(3) The Administrative Committee shall provide each
Participant no less than 30 days and no more than 90 days
prior to the Annuity Starting Date a written explanation of
(A) the terms and conditions of a Single Life Annuity and a
Qualified Joint and Survivor Annuity; (B) the Participant's
right to make and the effect of an election to waive the
Single Life Annuity or Qualified Joint and Survivor Annuity
form of benefit; (C) the rights of a Participant's Spouse; and
(D) the right to make and the effect of a revocation of a
previous election to waive the Single Life Annuity or
Qualified Joint and Survivor Annuity.
(4) Unless the Participant designates an optional
form of payment pursuant to a Qualified Election, if the
Participant dies before his Annuity Starting Date, then his
Account balance shall be applied towards the purchase of an
annuity for the life of his surviving Spouse in accordance
with Section 7.3 and the surviving Spouse must begin receiving
payments under this annuity within a reasonable period after
the Participant's death. Alternatively, as provided in
Section 7.3, such Spouse may in the event of the Participant's
death without having made a Qualified Election, elect to
receive the entire amount of the Participant's Account in a
lump sum or in any other form of payment permitted by Section
7.6(b).
The "Annuity Starting Date" is the first day of the
first period for which an amount is paid as an annuity or any
other form.
The Administrative Committee shall provide each
Participant a written explanation of (A) the terms and
conditions of the survivor annuity automatically provided
under Section 7.3, (B) the Participant's right to make and the
effect of an election to waive the survivor annuity to the
Participant's Spouse, (C) the rights of a Participant's
Spouse, and (D) the right to make and the effect of a
revocation of a previous election to waive the survivor
annuity for the Participant's Spouse. The written explanation
required by this Section 7.6(a)(4) shall be provided to each
Participant, and each Participant may make an election within
the period beginning on the first day of the Plan Year which
occurs prior to the date the Participant attains age 32 and
ending with the close of the Plan Year preceding the Plan Year
in which the Participant attains age 35; provided, however,
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that if the Participant separates from service before age 32,
the written explanation shall be provided within the 1-year
period following such separation. If a Participant enters the
Plan after the first day of the Plan Year in which the
Participant attained age 35, the Administrative Committee
shall provide the written explanation and each Participant may
make an election no later than the close of the second Plan
Year succeeding the entry of the Participant in the Plan. If
the Participant separates from service prior to the first day
of the Plan Year in which age 35 is attained, the election
period shall begin on the date of separation. If this Section
7.6(a) becomes applicable to a Participant later than the
above enumerated periods, the Administrative Committee shall
provide the written explanation and each Participant may make
an election within the 1-year period after this Section 7.6(a)
first applies to such Participant.
For purposes hereof, the period during which a
Participant may make the election provided hereunder shall end
on the later of the date of the Participant's death or the
date an annuity is purchased for the Participant under Section
7.6(a) or his Account Balance is fully distributed.
(b) Other Optional Forms. A Participant may receive
his benefit in 1 of the following forms, as selected by the Participant
subject to a Qualified Election:
(1) A joint and survivor annuity providing a
specified periodic benefit to the Participant for life, with a
benefit payable to the Participant's Beneficiary, if any,
equal to or less than 100%, but greater than 50%, of the
periodic benefit payable to the Participant prior to his
death;
(2) A single life annuity;
(3) A life with a period certain annuity, with
payments guaranteed for a period consisting of either 10 or 20
years, as selected by the Participant;
(4) Payments in monthly installments over a period
of 10 years; or
(5) A lump sum distribution.
(c) Distribution Requirements. This Section 7.6(c)
shall apply to any distribution of a Participant's interest and shall
take precedence over any inconsistent provisions of this Plan.
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(1) General. All distributions under this Section
7.6 shall be determined and made in accordance with the Income
Tax Regulations under Section 401(a)(9), including the minimum
distribution incidental benefit requirement of Section
1.401(a)(9)-2 of the Regulations.
(2) Required Beginning Date. If an annuity is not
distributed, the entire interest of a Participant must be
distributed in a lump sum no later than the Participant's
required beginning date; otherwise, annuity payments must
begin on the Participant's required beginning date. The
required beginning date of a Participant is the first day of
April of the calendar year following the calendar year in
which the Participant attains age 70-1/2.
(3) Distributions During Participant's Lifetime.
If the Participant's entire interest is to be distributed in
other than a lump sum or an annuity for the lifetime of the
Participant and his Spouse or designated Beneficiary, then the
amount to be distributed each calendar year occurring on or
after the required beginning date must be at least an amount
equal to the quotient obtained by dividing the Participant's
entire interest by the life expectancy of the Participant or
joint and last survivor expectancy of the Participant and
designated Beneficiary.
If distribution is not in the form of an annuity for
the lifetime of the Participant, or the lifetime of the
Participant and his Spouse or designated Beneficiary, the
amount to be distributed each year, beginning with
distributions for the first distribution calendar year shall
not be less than the quotient obtained by dividing the
Participant's benefit by the lesser of (A) the applicable life
expectancy or (B) if the Participant's Spouse is not the
designated Beneficiary, the applicable divisor determined from
the table set forth in Q&A-4 of Section 1.401 (a) (9)-2 of the
Income tax Regulations. Distributions after the Participant's
death shall be distributed using the applicable life
expectancy as the relevant divisor without regard to
Regulation Section 1. 1.401 (a) (9)-2.
The minimum distribution required for the
Participant's first distribution calendar year must be made on
or before the Participant's required beginning date. The
minimum distribution for other calendar years, including the
minimum distribution for the distribution calendar year in
which the Employee's required beginning date occurs, must be
made on or before December 31 of that distribution calendar
year.
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The applicable life expectancy shall be the life
expectancy (or joint and last survivor expectancy) calculated
using the attained age of the Participant (or designated
Beneficiary) as of the Participant's (or designated
Beneficiary's) birthday in the applicable calendar year
reduced by 1 for each calendar year which has elapsed since
the date life expectancy was first calculated. If life
expectancy is being recalculated, the applicable life
expectancy shall be the life expectancy as so recalculated.
The applicable calendar year shall be the first distribution
calendar year, and if life expectancy is being recalculated
each succeeding calendar year. If distribution is in the form
of an immediate annuity purchased after the Participant's
death with the Participant's remaining interest, the
applicable calendar year is the year of purchase.
The distribution calendar year shall be a calendar
year for which a minimum distribution is required. For
distributions beginning before the Participant's death, the
first distribution calendar year is the calendar year
immediately preceding the calendar year which contains the
Participant's required beginning date. For distributions
beginning after the Participant's death, the first
distribution calendar year is the calendar year in which
distributions are required to begin pursuant to Section
7.6(c)(4) below.
Life expectancy and joint and survivor expectancy
are calculated by use of the expected return multiples of
Tables V and VI of Section 1.72-9 of the Income Tax
Regulations. For purposes of this computation, the
Participant may elect to have the Participant's life
expectancy and/or that of his Spouse recalculated no more
frequently than annually. Such election must be made no later
than the time of the first required distribution as provided
under this Section 7.6. In the event no election is made,
life expectancies shall be calculated at the time payment
first commences without further recalculation. As of the date
of the first required distribution, the method of distribution
in effect shall be irrevocable and shall apply for all
subsequent years. The life expectancy of a non-Spouse
Beneficiary may not be recalculated.
(4) Death Distribution Provisions. Upon the death of a
Participant, distribution shall be made, subject to Section
7.3, as directed by the Participant, or in the absence of
direction by the Participant, as directed by his designated
Beneficiary, subject to the following distribution
limitations:
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(A) Distribution Beginning Before Death. If the
Participant dies after distribution of his or her
interest has begun, the remaining portion of such
interest must continue to be distributed at least as
rapidly as under the method of distribution being used
prior to the Participant's death.
(B) Distribution Beginning After Death. If the
Participant dies before distribution of his or her
interest begins, distribution of the Participant's entire
interest shall be completed by December 31 of the
calendar year containing the 5th anniversary of the
Participant's death except to the extent that an election
is made to receive distributions in accordance with (i)
or (ii) below:
(i) if any portion of the Participant's
interest is payable to a designated Beneficiary,
distributions may be made over the life or over a
period certain not greater than the life expectancy
of the designated Beneficiary commencing on or
before December 31 of the calendar year immediately
following the calendar year in which the Participant
died;
(ii) if the designated Beneficiary is the
Participant's surviving Spouse, the date
distributions are required to begin in accordance
with (i) above shall not be earlier than the later
of:
(I) December 31 of the calendar year
immediately following the calendar year in
which the Participant died, and
(II) December 31 of the calendar year in
which the Participant would have attained age
70-1/2.
If the Participant has not made an election pursuant
to this Section 7.6(c)(4) by the time of his death, the
Participant's designated Beneficiary must elect the
method of distribution no later than the earlier of (I)
December 31 of the calendar year in which the
distributions would be required to begin under this
Section 7.6(c)(4), or (II) December 31 of the calendar
year which contains the 5th anniversary of the date of
death of the Participant. If the Participant has no
designated Beneficiary, or if the designated Beneficiary
does not elect a method of distribution, distribution of
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the Participant's entire interest must be completed by
December 31 of the calendar year containing the 5th
anniversary of the Participant's death.
For purposes of Section 7.6(c)(4), if the surviving
Spouse dies after the Participant, but before payments to
such Spouse begin, the provisions of Section 7.6(c)(4)(B)
with the exception of paragraph (ii) therein, shall be
applied as if the surviving Spouse were the Participant.
(C) For purposes of this Section 7.6(c)(4), any
amount paid to a child of the Participant will be treated
as if it had been paid to the surviving Spouse if the
amount becomes payable to the surviving Spouse when the
child reaches the age of majority.
(D) For the purposes of this Section 7.6(c)(4),
distribution of a Participant's interest is considered to
begin on the Participant's required beginning date (or,
if paragraph (C) above is applicable, the date
distribution is required to begin to the surviving Spouse
pursuant to paragraph (B) above).
(5) For purposes of this Section 7.6(c), payments will
be calculated by use of the return multiples specified in
Section 1.72-9 of the Regulations. If the surviving Spouse is
the designated Beneficiary, such Spouse may elect to have his
life expectancy recalculated annually. Such election must be
made no later than the time of the first required distribution
as provided under this Section 7.6. In the event no election
is made, the surviving Spouse's life expectancy shall be
calculated at the time payment first commences with no further
recalculation. As of the date of the first required
distribution, the method (either recalculation or no
recalculation) of distribution in effect shall be irrevocable
and shall apply for all subsequent years. In the case of any
other designated Beneficiary, his life expectancy will be
calculated at the time payment first commences without further
recalculation.
(6) For purposes hereof, a Participant's benefit is:
(A) The Account balance as of the last Valuation
Date in the calendar year immediately preceding the
distribution calendar year (valuation calendar year)
increased by the amount of any contributions or
forfeitures allocated to the Account balance as of dates
in the valuation calendar year after the Valuation Date
and decreased by distributions made in the valuation
calendar year after the Valuation Date.
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(B) For purposes of paragraph (A) above, if any
portion of the minimum distribution for the first
distribution calendar year is made in the second
distribution calendar year on or before the required
beginning date, the amount of the minimum distribution
made in the second distribution calendar year shall be
treated as if it had been made in the immediately
preceding distribution calendar year.
(d) Consent to Distributions. If the present value
of a Participant's Account balance exceeds (or at the time of any prior
distribution exceeded) $3,500, such Account balance may not be
distributed to him prior to his Normal Retirement Date, death or
disability, without the Participant's consent. The consent of the
Participant and his Spouse, if applicable, shall be obtained in writing
within the 90-day period preceding the date benefit payments begin. The
Administrative Committee shall notify the Participant of the right to
defer any distribution to the Participant's Normal Retirement Age. Such
notification shall include a general description of the material
features, and an explanation of the relative values of the optional
forms of payments available under the Plan in a manner that would
satisfy the notice requirements of Code Section 417(a)(3), and shall be
provided no less than 30 days and no more than 90 days prior to the
Annuity Starting Date, as defined in Section 7.6(a).
The Participant's consent shall not be required to
the extent that a distribution is required to satisfy Section 401(a)(9)
or Section 415 of the Code.
(e) Commencement of Benefits. Unless previously paid
or the Participant elects otherwise, distribution of benefits will begin
no later than the 60th day after the latest of the close of the Plan
Year in which occurs:
(1) the date the Participant attains Normal
Retirement Age;
(2) the occurrence of the 10th anniversary of
the year in which the Participant commenced participation
in the Plan; or,
(3) the date the Participant terminates
service with the Company.
Notwithstanding the foregoing, the failure of a
Participant to consent to a distribution while a benefit is immediately
distributable, shall be deemed to be an election to defer commencement
of payment of any benefit hereunder. A benefit is immediately
distributable if any part of the Participant's Account balance could be
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distributed to the Participant before the Participant attains Normal
Retirement Age.
(f) Method of Distribution. For any distribution under
this Plan, the Participant or Beneficiary may elect payment in (1) cash,
(2) mutual fund shares, (3) annuity contracts, (4) an annuity under a
group annuity contract, or (5) insurance policies. Annuity contracts
used to fund a Participant's benefit must meet the requirements of Code
Sections 411(a)(11) and 417.
7.7 Hardship or Financial Need.
(a) Withdrawals. If, in its discretion, the Committee
shall determine on application by any Participant with the consent of
his Spouse pursuant to a Qualified Election, that such Participant has
an immediate and heavy financial need, the Committee may direct the
Trustee to distribute to such Participant such amount in a lump sum from
his Salary Deferral Account to the Trust Fund as the Committee may
determine is necessary to alleviate such financial need; provided that
the amount distributed may not be greater than the value of the
Participant's Salary Deferral Account (excluding the income earned
thereon); and provided further that the amount distributed pursuant to
this Section 7.7 may only be an amount necessary to satisfy an immediate
and heavy need plus amounts necessary to pay any federal, state, or
local income taxes or penalties reasonably anticipated to result from
the distribution. For the purpose of this Article, immediate and heavy
financial need shall only include
(A) medical expenses described in Section 213(d) of
the Code incurred by the Participant, the Participant's Spouse
or any dependents of the Participant as defined in Code
Section 152;
(B) costs directly related to purchase of a
principal residence for the Participant;
(C) payment of tuition and related educational fees
for the next 12 months of post-secondary education for the
Participant, his Spouse, children or dependents (as defined in
Code Section 152); or
(D) the need to prevent eviction of the Participant
from his principal residence or to prevent foreclosure on the
mortgage on his principal residence.
An amount is considered necessary to satisfy an
immediate and heavy financial need if the following requirements are
satisfied: (i) the distribution does not exceed the amount of the
immediate and heavy financial need, and (ii) hardship distributions
aside, the Participant has obtained all distributions and all nontaxable
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loans currently available under all plans maintained by the employer.
In order to obtain a hardship distribution, a Participant shall
represent in writing that the need cannot be relieved:
(1) Through reimbursement or compensation by
insurance or otherwise,
(2) By reasonable liquidation of the Participant's
assets, to the extent such liquidation would not itself cause
an immediate and heavy financial need,
(3) By cessation of Salary Deferral Contributions
under the Plan, or
(4) By other distributions or nontaxable (at the
time of the loan) loans from plans maintained by the Company
or by any other employer, or by borrowing from commercial
sources on reasonably commercial terms.
For purposes hereof, the Participant's resources shall be deemed to
include those assets of his Spouse and minor children that are
reasonably available to him, other than property held for minor children
under an irrevocable trust or under the Uniform Gifts to Minors Act.
In the event of a hardship distribution under this
Section 7.7 the Participant receiving the distribution shall: (i) have
his Salary Deferrals suspended for the 12-month period immediately
following receipt of the hardship distribution; (ii) have his Salary
Deferrals for his taxable year immediately following the taxable year of
the receipt of the hardship distribution limited to the excess of the
applicable limit on Salary Deferrals under Section 402(g) for such
taxable year less the amount of Participant's Salary Deferrals for the
taxable year of the hardship distribution; and (iii) agree that his
elective contributions and employee contributions to all other plans
maintained by the Company shall be suspended for at least 12 months
after receipt of the hardship distribution, unless otherwise permitted
by the Internal Revenue Service. In making such hardship
determinations, the Committee shall follow uniform and nondiscriminatory
rules, and its determination shall be final.
(b) Loans. The Administrative Committee shall
establish and administer a Plan loan program and shall promulgate such
policies and procedures as are necessary in connection therewith. In
the event of financial need, a Participant may at any time during the
Plan Year make application to the Administrative Committee on a form
provided by the Administrative Committee to borrow from his Salary
Deferral Account and the Administrative Committee shall permit such a
loan if it meets the conditions herein specified; provided that such
loan may not be less than $1,000. No Participant shall have more than 1
loan outstanding. The authority herein granted to the Administrative
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Committee to approve loans from the Trust is for the purpose of
assisting a Participant and shall not be used as a means of distributing
benefits before they otherwise become due. Loans shall be made upon the
following conditions:
(1) The maximum amount of the loan, when added to
the outstanding balance of all other loans from all Plans of
the Company and Related Companies, shall not exceed the lesser
of $50,000 reduced by the excess (if any) of the highest
outstanding loan balance during the prior 1-year period ending
on the date before the date of the loan over the outstanding
loan balance on the date of the loan, or 1/2 of the
Participant's Account.
For purposes of this Section 7.7(b), a Participant's
Account balance shall be valued as of the most recent prior
Valuation Date.
(2) Any loan, by its terms, shall be required to be
repaid within 5 years (or sooner, if the Participant
terminates his employment with the Company prior to that
time), unless the loan is used to acquire any dwelling unit
which is to be used (within a reasonable time after the loan
is made) as a principal residence of the Participant.
(3) In the event of the Separation from Employment
of the Participant before the loan is repaid in full, the
unpaid balance thereof, together with interest thereon, shall
become due and payable and the Trustee shall first satisfy the
indebtedness from the amount standing to the credit of the
Participant in the Trust before making payment to the
Participant or his Beneficiary.
(4) A loan to a Participant shall be considered an
ear-marked investment of such Participant's Account.
(5) The loan program under the Plan shall be
administered by the Administrative Committee in a uniform and
nondiscriminatory manner. Loans shall be made available to
any Participant who is at the time the loan is initiated an
Employee of the Company and to any other Participant who is a
party-in-interest on a reasonable and consistent basis within
the limitations set forth in the Plan and the Administrative
Committee shall follow uniform and nondiscriminatory rules.
In making loans consideration will be given by the
Administrative Committee only to those factors which would be
considered in a normal commercial setting by an entity in the
business of making similar types of loans. The Administrative
Committee may provide for an overall limit on the amount of
loans that may be provided by the Plan at any one time.
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(6) Loans shall be evidenced by notes which shall
be amortized in not less than level quarterly payments over
the term of the loan, shall bear a reasonable interest rate
commensurate with prevailing bank rates for similar loans at
the inception of the loan and shall specify a definite time
and manner of repayment. The rate of interest shall be
determined from time to time by the Administrative Committee.
(7) Loans to Participants shall be secured by the
present value of the Participant's Account on the date he
filed application for such loan.
(8) If a note is not paid on or before maturity and
is not renewed, the Trustee shall give written notice to the
Participant sent to his last known address and, if the note is
not paid within 30 days from the date of such notice, the
Trustee shall exercise any appropriate remedy as set forth in
the note or otherwise, including any remedy provided by law
and permitted by the Plan, to obtain full payment of the
unpaid balance of the loan, together with interest thereon,
costs, and attorneys' fees, including reducing the amount
allocated to the Participant's Account in the Trust Fund by
the amount of the unpaid balance of the loan, together with
interest; provided, however, foreclosure on the note and
attachment of the Security will not occur until a
distributable event occurs under the Plan.
(9) No loan may be made to a married Participant
without the written consent of his Spouse. The Spouse's
written consent must be made within the 90-day period ending
on the date that the loan is made. The consent must be in
writing, must acknowledge the effect of the loan, and must be
witnessed by a notary public. Such consent shall thereafter
be binding with respect to the consenting Spouse or any
subsequent Spouse with respect to that loan. A new consent is
required if the Participant's Account is used for any increase
in the amount of the loan. A written consent which complies
with the requirements of this Section shall be deemed to meet
any requirements of this Section relating to consent of a
subsequent Spouse.
(10) If a valid Spousal consent has been obtained in
accordance with Section 7.6(c), then, notwithstanding any
other provision of this Plan, the portion of the Participant's
Account balance used as a security interest for a loan
outstanding to the Participant at the time of his death shall
reduce the Account balance payable at the time of death or
distribution, but only if the reduction is treated as payment
in satisfaction of the loan. If less than 100% of the
Participant's Account balance (determined without regard to
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the preceding sentence) is payable to the surviving Spouse,
then the Account balance shall be adjusted by first reducing
the Account balance by the amount of the security used as
repayment of the loan, and then determining the benefit
payable to the surviving Spouse.
(11) A Plan Participant shall pay such loan fees as
charged from time to time by any third party (other than the
Company or employees of the Company), to the extent imposed by
the Administrative Committee.
(12) A Participant may specify from which investment
option or options the loan funds are to be taken and in the
absence of any such designation the Administrative Committee
shall so specify.
(13) Loan funds shall be taken exclusively from the
Salary Deferral Account.
(14) In the event of the Separation From Employment
of the Participant before the loan is repaid in full, the
unpaid balance thereof, together with interest thereon, costs
and attorneys, fees, if any, shall first be satisfied from the
Account of the Participant in the Trust Fund before the
Trustee shall make any payments to the Participant or his
Beneficiaries.
7.8 Withdrawal. Except as provided in Section 4.1 and 4.2
with respect to Excess Aggregate Contributions, Excess Deferral Amounts,
and Excess Deferral Contributions, Section 4.3 with regard to Rollover
Contributions, Section 6.3 with respect to excess annual additions, or
Section 7.7 with respect to hardship distributions, no Participant shall
have the right to withdraw amounts or to receive any distribution from
his Salary Deferral Account, Matching Contributions Account,
Discretionary Contributions Account, Mandatory Contributions Account,
Qualifying Contributions Account, or Rollover Account except:
(a) on or after the Participant's Retirement, Death,
Disability, or Separation from Employment within the meaning of this
Article VII;
(b) in the event of the termination of the Plan without
establishment of a successor Plan;
(c) in the event of the sale or other disposition by the
Company of substantially all of the assets of the Company used in its
trade or business to an unrelated corporation which does not maintain
the Plan but only with respect to Employees who continue employment with
the corporation acquiring the assets; or
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(d) upon proper application therefor on a form provided
by the Administrative Committee, subject to Section 7.6, any Participant
who has attained age 59-1/2 or more may withdraw his entire Salary
Deferral Account, Matching Contributions Account, Discretionary
Contributions Account, Rollover Account, and/or Mandatory Contributions
Account. The minimum amount of a withdrawal pursuant to this Section
7.8(d) shall be $500 per Plan Year ($250 for the short Plan Year).
7.9 Qualified Domestic Relations Orders. If the Plan shall
receive a domestic relations order, the following shall apply:
(a) The Administrative Committee shall promptly notify
the Participant and each Alternate Payee (as hereinafter defined) of the
Plan's receipt of such order, the provisions of this Section, and any
other Plan procedures for determining the qualified status of such order
under the Act.
(b) Within a reasonable time after receipt of such
order, the Administrative Committee shall request the Participant and
each Alternate Payee to notify the Plan whether they consent to or
contest the validity of such order under the Act.
(c) Thereafter, within a reasonable period of time after
such persons have had an opportunity to consent or contest the domestic
relations order, including indicating, where appropriate, the reasons
for their position, the Administrative Committee shall make a
determination of whether such order is a "Qualified Domestic Relations
Order" (as hereinafter defined) and notify the Participant and each
Alternate Payee of such determination. In making such determination,
the Administrative Committee may apply to a court of competent
jurisdiction for its determination.
(d) During any period in which the issue of whether a
domestic relations order is a Qualified Domestic Relations Order is
being determined (by the Administrative Committee, by a court of
competent jurisdiction, or otherwise), the Administrative Committee
shall separately account for the amounts which would have been payable
to the Alternate Payee during such period if the order had been
determined to be a Qualified Domestic Relations Order. Thereafter, the
following shall apply:
(1) If within 18 months beginning with the date on
which the first payment would be required to be made under the
Qualified Domestic Relations Order, the order (or modification
thereof) is determined to be a Qualified Domestic Relations
Order, the Administrative Committee shall pay the segregated
amounts (plus any interest thereon, if applicable) to the
person or persons entitled thereto.
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(2) If within 18 months beginning with the date on
which the first payment would be required to be made under the
Qualified Domestic Relations Order, it is determined that the
order is not a Qualified Domestic Relations Order, or the
issue as to whether the order is a Qualified Domestic
Relations Order is not resolved, then the Administrative
Committee shall pay the segregated amounts (plus any interest
thereon) to the person or persons who would have been entitled
to such amounts if there had been no order. If the
determination is made after the close of the 18-month period
that the order is a Qualified Domestic Relations Order, such
order shall be applied prospectively only.
(e) To the extent that the Plan and any fiduciary under
the Plan acts in accordance with the provisions of this Section in
treating a domestic relations order as being (or not being) a Qualified
Domestic Relations Order, or in taking action under subsection (d), the
Plan's obligation to the Participant and to each of his Alternate Payees
hereunder shall be discharged to the extent of any payment made pursuant
hereto.
(f) Upon written request by an Alternate Payee, the
Administrative Committee shall pay the Alternate Payee all or a portion
of the benefits to which he is entitled under a Qualified Domestic
Relations Order unless the Order provides otherwise.
(g) For purposes hereof, the following terms have the
following meanings:
(1) "Qualified Domestic Relations Order" means a
domestic relations order that qualified under Section 206(d)
of the Act.
(2) "Alternate Payee" means any Spouse, former
Spouse, child or other dependent of a Participant who is
recognized by a domestic relations order as having a right to
receive all or a portion of the benefits payable under the
Plan with respect to the Participant.
7.10 Unclaimed Benefits. If at, after, or during the time when
a benefit hereunder is payable to any Participant, Beneficiary or other
distributee, the Administrative Committee or the Trustee shall mail by
registered or certified mail to such Participant, Beneficiary or other
distributee at his last known address a written demand for his then
address, and if such Participant, Beneficiary or distributee shall fail
to furnish the same to the Trustee within 4 years from the mailing of
such demand, then such Participant, Beneficiary or other distributee
shall forfeit his right to such benefit and such benefit shall be
reallocated to the remaining Participants as if such forfeiture amount
were a part of the Mandatory Contribution for the Plan Year in which
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such 4-year period expires. Such forfeited benefit shall be reinstated
if a claim for the same is made by the Participant, Beneficiary, or
other distributee at any time thereafter by a contribution to the Plan
by the Company in the amount forfeited.
ARTICLE VIII
TOP HEAVY PROVISIONS
If for any Plan Year the Plan is determined to be a Top Heavy
Plan under Section 416 of the Code, the following provisions shall, to
the extent required by said Section 416, become effective for such Plan
Year with respect to the Non-Union Employees and shall supersede any
other provisions of the Plan which otherwise would apply for that Plan
Year.
8.1 Minimum Contributions. At any time when this Plan is a
Top Heavy Plan the Company shall make a minimum contribution to the Top
Heavy Contributions Account for each Participant who is both not a Key
Employee and not a Union Employee for the Plan Year as follows:
(a) The amount of the minimum contribution shall be the
lesser of the following percentages of Compensation:
(1) 3% of such Participant's Compensation; or
(2) The highest percentage at which such
contributions are made under the Plan for the Plan Year on
behalf of a Key Employee.
(A) For purposes of paragraph (2), all defined
contribution plans required to be included in an
Aggregation Group shall be treated as 1 plan.
(B) Paragraph (2) shall not apply if the Plan
is required to be included in an Aggregation Group and
the Plan enables a defined benefit plan required to be
included in the Aggregation Group to meet the
requirements of Sections 401(a)(4) or 410 of the Code.
In determining whether the minimum contribution is
made under this Section 8.1(a), Discretionary Contributions, Mandatory
Contributions, and Qualifying Contributions made for a given year shall
reduce the amount of the minimum contribution to be made to the
Participant's Account for the Plan Year but Salary Deferral
Contributions and Matching Contributions shall not be taken into
account.
(b) There shall be disregarded for purposes of this
Section 8.1 any contributions or benefits under Chapter 21 of the Code
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(relating to the Federal Insurance Contributions Act), Title II of the
Social Security Act, or any other Federal or State law.
(c) For purposes of this Section 8.1, the term
"Participant" shall be deemed to refer to all Participants who have not
separated from service at the end of the Plan Year including, without
limitation, individuals who declined to elect or make contributions to
the Plan. Individuals who have (1) failed to complete 1,000 Hours of
Service (or the equivalent), (2) declined to make contributions into the
Plan, or (3) been excluded from the Plan because such individual's
compensation is less than a stated amount, but must be considered
participants to satisfy the coverage requirements of Section 410(b) of
the Code in accordance with Section 401(a)(5) of the Code, are
considered Participants covered by the Plan for purposes of the minimums
referred to in this Section 8.1.
(d) Anything to the contrary in this Plan
notwithstanding, if at any time when this Plan is a Top Heavy Plan, the
Company also maintains a Top Heavy defined benefit plan, then if the
defined benefit minimum referred to in Section 416(c)(1) of the Code is
provided in the Top Heavy defined benefit plan (offset by benefits
provided by this Plan, if applicable), then this Section 8.1 shall not
apply to this Plan.
8.2 Impact Upon Maximum Contributions and Benefits.
For any Plan Year in which the Plan is a Top Heavy Plan or is a Super
Top Heavy Plan, Section 6.3, shall be read by substituting "1.0" for
"1.25" wherever it appears therein.
8.3 Top Heavy and Super Top Heavy Plan Defined.
(a) The Plan shall be deemed to be a "Top Heavy Plan"
based upon the following:
(1) General. This Plan shall be deemed to be a Top
Heavy Plan with respect to any Plan Year, if (A) as of the
Determination Date (as defined in paragraph (3)(D) hereof),
the Plan is not required to be included in an Aggregation
Group with other plans and the present value of the cumulative
accounts under the Plan when considered by itself for Key
Employees exceeds 60% of the present value of the cumulative
accounts under the Plan for all Participants and the Plan is
not included in a permissive Aggregation Group that is not a
Top Heavy Group, or (B) the Plan is required or permitted to
be included in an Aggregation Group (as defined in paragraph
(2)(A) below), and such group after considering any
permissible Aggregation Plan is a Top Heavy Group (as defined
in paragraph (2)(B) below).
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(2) Aggregation. For purposes of this
paragraph (a):
(A) Aggregation Group.
(i) Required Aggregation. The term
"Aggregation Group" means:
(I) Each plan (including plans
terminated within the 5-year period ending on
the Determination Date), of the Company in
which a Key Employee is a participant, and
(II) Each other plan of the Company
which enables any plan described in (I) to meet
the requirements of Section 401(a)(4) or 410 of
the Code.
(ii) Permissible Aggregation. The Company
may treat any plan not required to be included in an
Aggregation Group under subparagraph (i) as being
part of such group, if such group would continue to
meet the requirements of Sections 401(a)(4) and 410
of the Code with such plan being taken into account.
(B) Top Heavy Group. The term "Top Heavy
Group" means any Aggregation Group if:
(i) The sum (as of the Determination
Date) of:
(I) The present value of the
cumulative accrued benefits for Key Employees
under all defined benefit plans included in
such group, and
(II) The aggregate of the accounts of
Key Employees under all defined contribution
plans included in such group,
(ii) Exceeds 60% of a similar sum
determined for all Participants.
(3) Special Rules.
(A) Distributions During Last 5 Years. For
purposes of this paragraph (a), in determining the
present value of the cumulative aggregate benefit for any
Participant, or the amount of any Account of any
Participant, such present value or amount shall be
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increased by the aggregate distributions made with
respect to such Participant under the Plan during the 5-
year period ending on the Determination Date.
(B) Rollover Contributions. Except to the
extent provided in Regulations issued pursuant to Code
Section 416, any Rollover Contributions (or similar
transfer) initiated by the Participant and made to the
Plan shall not be taken into account with respect to the
transferee plan for purposes of determining whether such
plan is a Top Heavy Plan (or whether any Aggregation
Group which includes such plan is a Top Heavy Group).
(C) Participants Who Do Not Perform an Hour of
Service. If any Participant has not performed an Hour of
Service during the 5-year period ending on the
Determination Date, any accrued benefit for such
Participant and the Account of such Participant shall not
be taken into account.
(D) Determination Date. The Determination
Date is the last day of the preceding Plan Year, except
that in the case of the first Plan Year of any plan, it
shall be the last day of such Plan Year. If more than 1
plan is aggregated, the present value of accrued benefits
and accounts shall be determined separately under each
plan as of each plan's Determination Date and the plans
shall then be aggregated by adding the results of each
plan as of the Determination Dates for such plans that
fall within the same calendar year.
(E) Defined Benefit Plans. In determining the
present value of accrued benefits for all defined benefit
plans, the accrued benefit for each current participant
shall be computed as if the participant voluntarily
terminated service as of the most recent Valuation Date
which is within a 12-month period ending on the
Determination Date. For purposes hereof:
(i) In the first Plan Year of any plan,
the accrued benefit for a current participant shall
be determined as if the participant terminated
service as of the Determination Date (the last day
of the Plan Year) and for any subsequent year the
accrued benefit for such participant shall be
determined as if the individual terminated service
as of the most recent Valuation Date which is within
a 12-month period ending on the Determination Date.
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(ii) The Valuation Date shall be the same
Valuation Date as used in computing plan costs for
minimum funding requirements, regardless of whether
a valuation is performed for the year.
(iii) The actuarial assumptions set
forth in the plan for purposes of section 416 of the
Code shall apply.
(iv) The present value shall be determined
based upon a benefit payable commencing at Normal
Retirement Age (or attained age, if later).
(v) Subsidized early retirement benefits
and subsidized benefit reductions shall not be taken
into account unless they are non-proportional
subsidies.
(vi) Solely for the purpose of determining
if the Plan, or any other plan included in a
required Aggregation Group of which this Plan is a
part, is Top Heavy (within the meaning of Section
416(g) of the Code) the accrued benefit of an
Employee other than a Key Employee (within the
meaning of Section 416(i)(1) of the Code) shall be
determined under (I) the method, if any, that
uniformly applies for accrual purposes under all
plans maintained by the Affiliated Companies, or
(II) if there is no such method, as if such benefit
accrued not more rapidly than the slowest accrual
rate permitted under the fractional accrual rate of
Section 411 (b) (1) (C) of the Code.
(F) Defined Contribution Plans. In a defined
contribution plan, the present value of accrued benefits
as of the Determination Date for any individual is the
sum of:
(i) The account balance of the individual
as of the most recent Valuation Date occurring
within a 12-month period ending on the Determination
Date, and
(ii) An adjustment for contributions due
as of the Determination Date.
In the case of a plan not subject to the
minimum funding requirements of Section 412 of the
Code, the adjustment in (ii) is generally the amount
of any contributions actually made after the
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Valuation Date, but on or before the Determination
Date; provided, however, that in the first Plan Year
of the Plan, such adjustment shall also reflect the
amount of any contributions made after the
Determination Date that are allocated as of a date
in that first Plan Year. If the plan is subject to
said minimum funding requirements, the account
balance in (i) shall include contributions that
would be allocated as of a date not later than the
Determination Date, even though those amounts are
not yet required to be contributed, such as
contributions waived in prior years and
contributions not paid that result in a funding
deficiency. In addition, an adjustment shall be made
to (ii) to reflect the amount of any contribution
actually made (or due to be made) after the
Valuation Date, but before the expiration of the
extended payment period permitted by Code Section
412(c)(10). For purposes of this paragraph (F) the
Valuation Date" shall be the same Valuation Date as
used in computing plan costs for minimum funding
purposes, if the plan is subject to said minimum
funding requirements, or if the plan is not subject
to minimum funding requirements, the date
established by the plan for valuing and adjusting
all account balances.
(G) Participants Who Cease to be Key
Employees. If any Participant is a Non-Key Employee with
respect to any Plan for any Plan Year, but he was a Key
Employee with respect to such Plan for any prior Plan
Year, any accrued benefit for such Participant and the
Account of such Participant shall not be taken into
account.
(H) Accrued Benefit. Solely for the purpose
of determining if the Plan, or any other plan included in
a required Aggregation Group of which this Plan is a
part, is Top Heavy (within the meaning of Section 416(g)
of the Code) the accrued benefit of an Employee other
than a Key Employee (within the meaning of Section
416(i)(1)of the Code) shall be determined under (i) the
method, if any, that uniformly applies for accrual
purposes under all plans maintained by the Related
Companies, or (ii) if there is no such method, as if such
benefit accrued not more rapidly than the slowest accrual
rate permitted under the fractional accrual rate of
Section 411 (b) (1) (C) of the Code.
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(b) The Plan shall be a Super Top Heavy Plan if it would
be a Top Heavy Plan under the provisions of Section 8.3(a), but
substituting "90%" for "60%" in the ratio test in Section 8.3(a)(1) and
(2).
ARTICLE IX
INVESTMENTS
9.1 General. A Participant may elect to have amounts
credited to his Account invested in any investment Fund provided by the
Plan. If no election is made, all amounts in a Participant's Account
will be invested in the manner provided in Section 9.2(a).
9.2 Investment Funds. The Trustee (provided the Trustee is
an independent fiduciary) shall designate a diversified group of pooled
investment funds as investment options. For purposes of this paragraph,
a "diversified group" of pooled investment funds is a group of at least
5 Funds, including the following:
(a) A Fund, the assets of which consist solely of cash
and securities issued or guaranteed by the United States or one of its
agencies and the principal investment objectives which include a high
level of current income consistent with the preservation of capital and
a high degree of liquidity;
(b) A Fund which has as its investment objectives the
generation of the highest level of income consistent with the
preservation of capital over the long term;
(c) A Fund which has as its investment objectives
capital appreciation;
(d) A Fund which has as its investment objectives a
balance between capital appreciation and preservation of capital and
generation of income; and
(e) A Fund which has as its investment objectives the
generation of a high level of current income consistent with the
preservation of capital and a high degree of liquidity.
For purposes hereof, if the Trustee is not an independent
fiduciary (i.e., is affiliated with any designated pooled investment
fund or any Investment Manager with respect to such Fund), the Company
shall designate an independent fiduciary for the sole purpose of
selecting the investment options. The Trustee (or independent
fiduciary, if appointed), shall from time to time consider the
suitability of the investment Funds provided to Participants.
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9.3 Investment in Insurance Policies. Provided that the
Administrative Committee has approved investment in insurance policies,
a Participant may direct the Trustee to apply a portion of each
contribution to the purchase of an insurance policy. The fact that any
insurance policy is issued on the life of a Participant shall not vest
any right, title, or interest in such policy in the Participant except
at the time and on the terms and conditions set forth in the Plan. All
insurance policies shall be issued and all premiums shall be payable as
of the common due date.
The Administrative Committee may direct the Trustee to invest
a portion of the Trust Fund in an Insurance Policy on the life of any
Employee, in which case, the investment shall be deemed to be for the
benefit of the Trust Fund as a whole.
Each insurance policy shall be issued by an insurer selected
by the Administrative Committee. The Trustee shall be the applicant,
owner, and beneficiary of each insurance policy. As applicant, the
Trustee shall execute any and all applications and other documents
required by the insurer in connection with the issuance of any insurance
policy. The Company, Administrative Committee, and the Trustee shall
not be liable for any loss suffered by a Participant or a Beneficiary
due to the Participant's failure to supply any information or perform
any other act required by the insurer in connection with issuance or
maintenance of an insurance policy.
However, the Trustee shall be required to pay over all
proceeds of any insurance policies to the Participant's designated
Beneficiary in accordance with the distribution provisions of this Plan.
A Participant's Spouse will be the designated Beneficiary of the
proceeds in all circumstances unless a waiver has been made in
accordance with Section 7.6(c). Under no circumstances shall the Trust
retain any part of the proceeds.
Insurance policies may be held in the possession of the
Trustee, insurer, or Company.
(a) Limitations on Insurance Policies. All insurance policy
premiums shall be payable from Salary Deferral Contributions or Company
Contributions, except as provided below.
If ordinary life insurance is purchased, aggregate
premiums must be less than 50% of the aggregate Salary Deferral
Contributions, Company Contributions, and forfeitures allocated to the
Participant. If term or universal life insurance is purchased,
aggregate premiums may not exceed 25% of aggregate Salary Deferral
Contributions, Company Contributions, and forfeitures allocated to the
Participant. If both ordinary and term or universal life insurance are
purchased, aggregate premiums for the term insurance plus 1/2 the
aggregate premiums for the ordinary insurance may not exceed 25% of the
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aggregate Salary Deferral Contributions, Mandatory Contributions,
Discretionary Contributions, Qualifying Contributions, and forfeitures
allocated to the Participant. If retirement income or endowment
policies are purchased on behalf of a Participant, the death benefit
under the policy shall not be greater than 100 times the anticipated
monthly annuity provided under the policy. Ordinary life insurance is a
policy that provides both nondecreasing death benefits and nonincreasing
premiums.
If the premium payable is more than the amount of Salary
Deferral Contributions, Mandatory Contributions, Discretionary
Contributions, and Qualifying Contributions available for payment, the
Trustee shall, unless the Participant elects otherwise, convert other
assets held on the Participant's behalf into cash in the amount of the
insufficiency, to the extent that the limitations of this subsection (a)
are not exceeded, and pay such amount to the insurer.
If payment of the premium due would cause the limitations
of this subsection (a) to be exceeded, the Trustee shall, unless the
Participant elects otherwise, convert other assets held on the
Participant's behalf for 2 or more years into cash in the amount of the
excess and pay such amount to the insurer.
Insurance policy dividends and credits will be allocated
to the Participant for whose benefit the policy is held.
(b) Disposition of Insurance Policies. Upon the retirement,
disability or other termination of employment of a Participant, the
Participant shall instruct the Trustee as to the disposition of the
insurance policies on his life, including the surrender, conversion, or
transfer of ownership of such policies to the Participant, or placing
them on a paid-up basis. If an insurance policy is distributed to the
Participant, such a policy shall be subject to the provisions of Section
7.6. The Trustee shall dispose of the policies in accordance with these
instructions and shall, in any event, prior to commencement of benefits
under the Plan, convert insurance policies to cash or an annuity
contract or distribute them to the Participant.
(c) Minimum Purchase. If the amount available for the
purchase of an insurance policy is insufficient to provide the minimum
purchase amount as specified by the insurer, no insurance policy shall
be purchased until the common due date on which the amount available is
sufficient.
(d) Validity of Insurance Policy. Neither the Company, the
Administrative Committee, nor the Trustee shall be responsible for the
validity of any insurance policy, nor for the failure on the part of the
insurer to make payments provided by such policies, nor for the action
of any person which may render an insurance policy null or void or
unenforceable in whole or in part.
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(e) Subordination of Insurance Policy or Annuity Contract. In
the event of any conflict between the terms of the Plan and the
provisions of any insurance policy or annuity contract, the terms of the
Plan will control.
9.4 Allocation of Contributions to Investment Funds. From
time to time as determined by the Administrative Committee, but no less
often than once each quarter-annual period, a Participant may elect how
contributions to his Account shall be allocated among the investment
Funds. Allocations to a Fund shall be in such percentages of such
contributions as the Administrative Committee may from time to time
permit. Such elections shall be made at such time, in such manner and
in such form as the Administrative Committee may prescribe through
uniform and nondiscriminatory rules. The Administrative Committee shall
elicit affirmative investment instructions from the Participant. A
Participant who has not given affirmative investment instructions to the
Administrative Committee shall have the entire balance in each of his
Accounts initially allocated to the investment Fund described in Section
9.2(a). The Administrative Committee shall inform the Participant of
the manner in which contributions to his Account will be invested in the
absence of affirmative instructions, the anticipated rate of return on
such investments and provide the Participant with a prospectus, proxy
solicitations and periodic reports which contain such information.
9.5 Transfers of Investments. To the extent permitted by the
Administrative Committee, but not less often than once each quarter-
annual period, a Participant, a Former Participant or a Beneficiary, may
elect to transfer amounts between any of the Investment Funds. Such
elections shall be made at such time, in such manner and in such form as
the Administrative Committee may prescribe through uniform and
nondiscriminatory rules. The Administrative Committee may prescribe the
minimum amount transferable in and out of any 1 Fund.
9.6 Changes in Investments. The Company reserves the right
to change the investment options under the Plan provided the
requirements of Section 9.2 are met.
9.7 Loans. A Participant may receive a loan from his Salary
Deferral Account under the provisions of Section 7.7(b). A loan to a
Participant shall be considered an earmarked investment of such
Participant's Salary Deferral Account and shall reduce the amounts
invested in the Funds described in Section 9.2. Repayment of a loan
shall reduce the amount of the loan investment and shall be invested in
such investment Funds in accordance with the Participant's then current
investment direction. Loans and loan repayments shall not be treated as
elections of allocations or transfers under Sections 9.4 and 9.5.
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ARTICLE X
DUTIES OF TRUSTEE
10.1 The Trustee shall accept and receive all sums of money
paid to it from time to time by the Company and shall place the same in
the Trust Fund to be held, administered, invested, and reinvested in
accordance with the terms and provisions of this Agreement. The Trustee
shall be accountable to the Company for all such contributions received
by the Trustee, but the Trustee shall have no duty to see that the
contributions received comply with the provisions of the Plan, nor shall
the Trustee be obligated to collect any contributions from the Company,
or otherwise see that contributions are deposited according to the
provisions of the Plan. No part of such funds or the income thereon
shall be applied other than for the benefit of the Participants and
their Beneficiaries under the Trust and, to the extent provided by law,
for the payment of the expenses of the Trust or of the Administrative
Committee, if not paid by the Company in accordance with Article III
hereof.
10.2 The Company shall have no right, title, or interest in or
to any of the cash, securities, or other property forming a part of the
Trust.
10.3 The Trustee shall discharge its duties hereunder:
(a) solely in the interest of the Participants and
Beneficiaries under the Plan, and for the exclusive purpose of providing
benefits to Participants and their Beneficiaries and defraying
reasonable expenses of administering the Trust Fund;
(b) with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of like character and with like aims; and
(c) by diversifying the investments of the Plan so as to
minimize the risk of large losses, unless under the circumstances it is
not prudent to do so; provided, however, that the aforesaid
diversification requirement and prudence requirement (only to the extent
that it requires diversification) shall not be regarded as violated by
the acquisition or holding of "qualifying employer real property" or
"qualifying employer securities" as those phrases are used in Section
404(a)(2) of the Act, if and to the extent permitted under Section
408(e) of the Act.
10.4 Subject to the provisions of Section 10.3 hereof, the
Trustee shall from time to time invest and reinvest the principal and
income of the Fund, and keep the same invested in real estate,
leaseholds or other interests in real estate, insurance contracts,
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common stocks, preferred stocks, bonds, notes, mortgages, debentures,
equipment trust certificates, including "qualifying employer real
property and "qualifying employer securities" as those phrases are used
in Section 407(d) of the Act, as the Trustee may deem advisable, whether
or not such investments or reinvestments may be permissible for
investment of trust funds under any present or future applicable state
laws.
In addition, notwithstanding any other provision of this
Agreement, the Trustee, upon instruction of the Company, shall cause any
part or all of the assets of this Trust to be invested collectively with
the assets of other employee benefit trusts, as part of any common,
collective or commingled trust fund, as established by any corporate
Trustee or the Investment Manager, which fund is qualified under the
provisions of Section 401(a) and exempt under the provisions of Section
501(a) of the Code. In such event, the money and other assets of this
Trust shall be subject to all of the provisions of any instruments
applicable to the management and investment of assets of such collective
trust funds and such instruments shall constitute a part of this
instrument. In addition, at the direction of the Company, the Trustee
shall cause such assets to be invested at the direction of or with an
Investment Manager and/or Insurance Company, if the Investment Manager
and/or Insurance Company keeps a separate account of the Trust Fund
assets on its books. If the Investment Manager and/or Insurance Company
acts hereunder, it shall acknowledge in writing that it is a Fiduciary
with respect to the Plan.
10.5 Subject to the foregoing, the Trustee is authorized and
empowered as follows:
(a) To sell, exchange, convey, transfer or dispose of
and also grant options with respect to any property, whether real or
personal, at any time held by it. Any sale may be made by private
contract or by public auction and no person dealing with the Trustee
shall be bound to see to the application of the purchase money or to
inquire into the validity, expediency, or propriety of any such sale or
other disposition;
(b) To retain, manage, operate, repair, and improve, and
to mortgage or lease for any period, any real estate held by the
Trustee;
(c) To compromise, compound, and settle any debt or
obligation due from third persons to it as Trustee or to third persons
from it as Trustee hereunder and to reduce the rate of interest on, to
extend or otherwise modify, or to foreclose upon, default or otherwise
enforce any such obligations;
(d) To vote in person or by proxy any stocks, bonds, or
other securities held by it; to exercise any options available to any
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stocks, bonds, or other securities; to exercise any rights to subscribe
for additional stocks, bonds, or other securities and to make necessary
payments therefor; to join in or oppose the reorganization,
recapitalization, consolidation, sale, or merger of corporations or
properties in which it may be interested as Trustee upon such terms and
conditions as it may deem wise, and to accept and hold any securities
which may be issued under any such reorganization, recapitalization,
consolidation, sale or merger;
(e) To make, execute, acknowledge, and deliver deeds,
leases, assignments, documents of transfer, and other instruments as may
be necessary to carry out the powers herein granted;
(f) To enforce any right, obligation, or claim in its
absolute discretion and in general to protect in any way the interests
of the Trust Fund, either before or after default, and in its absolute
discretion to abstain from the enforcement of any right, obligation, or
claim and to abandon any property, whether real or personal, which at
any time may be held by it;
(g) with the approval of the Administrative Committee,
to borrow or raise moneys, for the purpose of the Trust Fund in such
amount and upon such terms and conditions as the Trustee may deem
advisable, and to the extent that the same shall not be prohibited by
the provisions of the Act or Code, and for any sum so borrowed to issue
its promissory note as Trustee and to secure the repayment thereof by
pledging all or any part of the Trust Fund; and no person loaning money
to the Trustee shall be bound to see to application of the money loaned
or to inquire into the validity of any such borrowing;
(h) To cause any investments in the Trust Fund to be
registered in or transferred into its name or the name of its nominee or
nominees or to retain them unregistered or in form permitting transfer
by delivery, but the books and records of the Trustee shall at all times
show that all such investments are part of the Trust Fund;
(i) To employ accountants and counsel (including
accountants and counsel of the Company to the extent permitted by the
Act); and to employ agents and delegate to them such ministerial and
limited discretionary duties as it sees fit;
(j) To make, execute, acknowledge, and deliver any and
all documents or transfer any conveyance and all other instruments that
may be necessary or appropriate to carry out the powers herein granted;
(k) To do all other acts and to exercise any other
powers which it may deem to be necessary and proper to carry out its
duties as Trustee under this Agreement; and
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10.6 The Trustee shall not be required to make any
investigation to determine the identity or mailing address of any person
entitled to benefits under the Trust and is authorized to withhold
making payments until the identity and mailing address of any person
entitled to benefits is certified to it by the Committee, or until any
dispute arising hereunder shall have been resolved. The Trustee shall
not be bound to institute any legal action or to become a party to any
legal action against any person or persons, unless it shall first have
been indemnified to its satisfaction by the Company.
10.7 The Trustee, other than an Employee of the Company, shall
be entitled to such reasonable compensation for all services rendered
hereunder as shall be agreed upon between the Company and the Trustee
and for all reasonable expenses incurred, including counsel and auditing
fees. Such compensation may be paid by the Company or, to the extent
permitted by law, charged to the Trust.
10.8 The Trustee shall keep full records of the administration
of the Trust. Each year the Trustee shall furnish the Company with an
annual report showing all receipts and disbursements and other
transactions together with a list of the assets held at the end of such
year showing the cost and the fair market value of each item.
The Trustee shall also prepare an annual statement for each
Participant disclosing the status of his Account in the Trust.
The Company shall have the right to examine the books and
records of the Trustee at any time. The Trustee shall have the right to
have its accounts settled by judicial proceeding if it so elects.
10.9 The Trustee may resign at any time upon 30 days' written
notice to the Company and may be removed by the Company upon written
notice. In case of the resignation or removal of the Trustee, the
Trustee shall furnish the Company with a final accounting and, upon
payment of its fees and expenses, shall transfer and convey all of the
assets of the Trust Fund to the successor Trustee appointed by the
Company. The successor Trustee shall qualify hereunder by delivering to
the Company a written acceptance of the Trust.
10.10 In the event that there is more than 1 individual
acting as the Trustee hereunder, the decision of a majority of such
individuals shall be considered the action of the Trustee hereunder.
ARTICLE XI
AMENDMENT, DURATION, AND TERMINATION OF TRUST AND PLAN
11.1 Amendment. The Company reserves the right to amend or
terminate this Plan and Trust at any time and all parties to this Plan
and Trust or claiming any interest thereunder shall be bound thereby;
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except, however, that no Participant, or other person having an already
vested interest in this Plan and Trust shall, without his written
consent, be deprived of any such vested interest nor shall any such
vested interest be adversely affected thereby. Except to the extent
provided in Section 4.1(g), in no event shall any amendment or
termination have the effect of vesting in the Company any right, title
or interest to any contract or funds held under the Plan and Trust.
Except to the extent permitted by applicable law, no amendment to the
Plan may decrease a Participant's Account balance or eliminate an
"optional form of benefit" within the meaning of Section 204(g)(2) of
the Act. The decision of the Administrative Committee shall be binding
upon the Participants, Beneficiaries and all other persons and parties
interested as to whether or not any amendment does deprive a Participant
or any other person or party of any interest already existing or
adversely affects such interest. Any such amendment or termination
shall be effective when signed by the President and Secretary of the
Company and filed with the Trustee. The consent of the Trustee shall
not be necessary unless in its discretion its duties or liabilities have
been increased.
No amendment shall reduce the vested percentage of any
Participant. Further, if the Plan's vesting schedule is amended in any
way that directly or indirectly affects the computation of the
Participant's vested percentage or if the Plan is deemed amended by an
automatic change to or from a Top Heavy vesting schedule, each
Participant with 3 or more years of service is permitted to elect to
have his vested percentage computed without regard to such amendment.
The period during which the election may be made shall commence on the
date the amendment is adopted and shall end as of the later of:
(a) 60 days after the amendment is adopted;
(b) 60 days after the amendment becomes effective; or
(c) 60 days after the Participant is issued a written
notice of the amendment by the Administrative Committee.
11.2 Duration of Trust. The Trust hereby created shall
continue until the entire Trust Fund shall be paid out and distributed
in accordance with the provisions of this Trust Agreement.
11.3 Termination. If Delfield or any Participating Company
should abandon the Plan, through a permanent discontinuance of Company
contributions or otherwise, or if Delfield or any Participating Company
should be liquidated and dissolved, or if Delfield or any Participating
Company should terminate or partially terminate the Plan or the Trust,
the Accounts of all affected present and former Participants as then
appearing upon the records of the Trustee shall become fixed, vested and
nonforfeitable and the amounts carried in said Accounts shall be
revalued and adjusted as hereinbefore provided. The assets of the Trust
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Fund shall thereupon be allocated to each such Account in the manner
herein provided, and, if required by Delfield, upon receipt of written
evidence of approval by the Internal Revenue Service of the termination
and of the plan of distribution, such cash and other property shall be
distributed, assigned and paid over forthwith to such Participants in
kind or in cash, as directed by the Administrative Committee. Before
making any distributions, assignments, or payments, however, the Trustee
and its legal counsel, if any, shall be entitled first to payment of
expenses and charges of the Trustee and its counsel incident to the
operation of the Trust and the termination thereof, and in case Delfield
does not choose to pay such expenses and charges, the Trustee shall have
a lien on the assets of the Trust Fund, the assets distributable to such
Participants being liable for a pro rata share thereof until the Trustee
and its counsel have been paid. The Trustee shall not be obligated to
distribute any portion of the Trust Fund upon termination of the Plan
until it receives notice of a ruling from the Internal Revenue Service
upon Delfield's application for determination as to the effect of
termination.
11.4 No Contribution. In the event that the Company fails to
make a contribution required hereby within the time prescribed by the
Internal Revenue Code for payment for the purposes of deduction of such
contribution, the Separation from Employment of any Participant for any
cause, except death, total and permanent disability, or retirement,
during the period of the Company's default in making such contributions,
shall not result in the forfeiture of any part of such Participant's
Account.
ARTICLE XII
RIGHTS OF THE COMPANY
12.1 The Company contemplates making additional payments into
the Trust Fund, pursuant to this Trust, but the Company assumes no
obligation by reason of the creation of this Plan or Trust, to make
additional payments to the Trustee hereunder.
12.2 Upon deposit of any money or assets with the Trustee
hereunder, subject to the provisions of Article XIV and Section 4.1(g),
hereof, all interest of the Company therein shall cease and terminate,
and no part of the Trust property or any beneficial interest under said
Trust shall revert to the Company or be diverted from the purpose of
providing benefits to the Participants and Beneficiaries hereunder. No
amendment or termination of this Agreement and no power granted
hereunder, shall operate to revest in the Company title to any funds
transferred by it to the Trustee hereunder or net earnings thereof, or
divest any Participant or Beneficiary of any vested interest, except as
provided for in Article XIV and Section 4.1(g).
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ARTICLE XIII
RIGHTS OF PARTICIPANTS
13.1 No Participant shall at any time have any vested right or
interest in the Trust Fund, or in any part of the Trust Fund, except as
herein provided, and payments, distributions and assignments therefrom
shall be subject to this Agreement.
13.2 The Trust Fund shall not in any manner be liable for or
subject to the debts or liabilities of any Participant or Beneficiary.
No right, benefit or pension at any time under the Plan shall be subject
in any manner to alienation, sale, transfer, assignment, pledge or
encumbrance of any kind, including a domestic relations order, unless
such order is determined pursuant to Section 7.10 hereof, to be a
Qualified Domestic Relations Order, as defined in Section 414(p) of the
Code, or any domestic relations order entered before January 1, 1985.
If under any such order, payment is required to be made to an Alternate
Payee within the meaning of Section 206(d)(3)(D) of the Act, the
interest rate assumption used in determining the present value of any
benefit shall be the interest rate used (as of the date of
determination) by the Pension Benefit Guaranty Corporation for purposes
of determining the present value of a lump sum distribution on plan
termination.
13.3 Neither the establishment of the Plan nor any provision
of the Trust or modification thereof shall be construed as giving any
employee of the Company, or any person whomsoever, any legal or
equitable rights against the Company, the Trustee or the Administrative
Committee, except as expressly granted to them under the terms of this
Plan and Trust, or as giving any employee the right to be retained in
the service of the Company, and an employee shall remain subject to
discharge to the same extent as heretofore.
13.4 If a Participant continues to work as an employee of the
Company after reaching his Normal Retirement Age, further credits shall
be entered to his Provisional Credit Account as a Participant to the
extent provided herein and he shall not be entitled to any right of
distribution of his credit until actual retirement occurs, subject to
the minimum distribution rules of Section 7.9.
13.5 The Plan shall not be merged with or consolidated with
any other plan, and shall not transfer its assets or liabilities to any
other plan, unless each Participant would (if the Plan then terminated)
receive a benefit immediately after the merger, consolidation or
transfer which is equal to or greater than the benefits which he would
have been entitled to receive immediately before the merger,
consolidation or transfer (if the Plan had then been terminated).
ARTICLE XIV
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MISCELLANEOUS
14.1 The headings to the Articles and Sections of this Trust
Agreement are inserted for reference only and are not to be taken as
limiting or extending the provisions of this Agreement. All
Participants and Beneficiaries under this Trust shall be deemed to have
consented to its terms.
14.2 The Plan and Trust established by the Company are
embodied in their entirety in this Agreement and the Trustee and the
Administrative Committee shall not be required to make any reference to
any other document or writing for the purpose of interpreting or
administering this Plan and Trust, except as to such future
certifications by the Company and the Administrative Committee to the
Trustee as are provided for in this Plan and Trust.
14.3 Except as provided in Section 4.1(g), under no
circumstances or conditions whatsoever shall any funds which at any time
have been contributed to this Trust or any funds at any time held by the
Administrative Committee or Trustee under this Trust or any property at
any time subject to this Trust ever inure to the benefit of the Company
or to the individual benefit of any member of the Administrative
Committee except to the extent of any benefits payable to a member of
the Administrative Committee as a Participant or Beneficiary under this
Trust.
14.4 This Trust and Plan shall be construed according to
applicable federal law and, to the extent not preempted by federal law,
by the laws of the State of Michigan, where it is made and where it
shall be enforced. Any amendments to this Trust or Plan in connection
therewith shall be valid only if made in the State of Michigan.
14.5 This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of any and all
parties, Participants and Beneficiaries, present and future.
14.6 The Plan is effective on and after July 1, 1991 and is
contingent upon and subject to obtaining such approval of the Internal
Revenue Service and the United States Department of Labor, as the
Company may find necessary to establish the initial qualification of the
Plan under the Act and under Sections 401, 404 and 501(a) or other
applicable provisions of the Code. Any modification or amendment of the
Plan may be made retroactively by the Company, if necessary or
appropriate, to qualify or maintain the Plan as a Plan and Trust,
meeting the requirements of the Act and of the Code or any other
applicable provisions of the federal laws, as now in effect or hereafter
amended or adopted, and the regulations issued thereunder.
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IN WITNESS WHEREOF, Delfield has caused this Agreement to be
executed by its duly-authorized officers and its corporate seal to be
affixed hereto by authority of its Board of Directors and the Trustee
has executed this Agreement all as of January 1, 1992.
ATTEST: THE DELFIELD COMPANY
W. Manifold By:/s/ Kevin E. McCrone
----------------------------- --------------------------------
Secretary
Its: President
--------------------------
[CORPORATE SEAL]
WITNESSETH:
/s/ Laura Frye Veldhuis /s/ Kevin E. McCrone
---------------------------- -------------------------------------
Kevin E. McCrone
/s/ Laura Frye Veldhuis /s/ W. Joseph Manifold
---------------------------- -------------------------------------
W. Joseph Manifold
/s/ Laura Frye Veldhuis /s/ Ronald A. Anderson
---------------------------- -------------------------------------
Ronald A. Anderson
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FIRST AMENDMENT
TO THE
DELFIELD COMPANY 401(k) SAVINGS AND PROFIT SHARING RETIREMENT PLAN
(As Amended and Restated Effective January 1, 1992)
THIS AMENDMENT made this 29th day of December, 1992, by THE
DELFIELD COMPANY (the "Company"), to THE DELFIELD COMPANY 401(k) SAVINGS
AND PROFIT SHARING RETIREMENT PLAN (the "Plan").
W I T N E S S E T H:
WHEREAS, the Company, by agreement with Kevin E. McCrone, W.
Joseph Manifold and Ronald A. Anderson (hereinafter called the
"Trustee"), as Trustee, established the Plan effective July 1, 1991,
which Plan was amended and restated effective January 1, 1992; and
WHEREAS, the Company, with the consent of the Trustee, now
wishes to further amend the Plan.
NOW, THEREFORE, the Company, with the consent of the Trustee,
hereby amends the Plan in the following respects effective January 1,
1992:
1. A new paragraph (8) is added to Section 5.3(a) to read as
follows:
(8) Solely for purposes of determining whether a
Break in Service has occurred for participation purposes, an
individual who is absent from work for maternity or paternity
reasons shall receive credit for the Hours of Service which
would otherwise have been credited to such individual but for
such absence, or in any case in which such Hours cannot be
determined, 8 Hours of Service per day of such absence;
provided, however, that the total number of hours treated as
Hours of Service by reason of any such maternity or paternity
shall not exceed 501 hours. For purposes of this paragraph,
an absence from work for maternity or paternity reasons means
an absence (A) by reason of the pregnancy of an individual,
(B) by reason of the birth of a child of the individual, (C)
by reason of the placement of a child with the individual in
connection with the adoption of such child by such individual,
or (D) for purposes of caring for such child for a period
beginning immediately following such birth or placement. The
Hours of Service credited under this paragraph shall be
credited (A) in the Plan Year in which the absence begins if
the crediting is necessary to prevent a Break in Service in
that period, or (B) in all other cases, in the following Plan
Year. No credit will be given pursuant hereto unless the
Employee furnishes to the Administrative Committee such timely
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information as the Plan may reasonably require to establish
that the absence from work is for reasons referred to above
and the number of days for which there was such an absence.
2. The second sentence in the third paragraph of Section
7.6(a)(4) is amended to read as follows:
The written explanation required by this Section
7.6(a)(4) shall be provided to each Participant, and each
Participant may make an election within the period beginning
on the first day of the Plan Year which occurs prior to the
date the Participant attains age 32 and ending with the close
of the Plan Year preceding the Plan Year in which the
Participant attains age 35; provided, however, that if the
Participant separates from service before age 32, the written
explanation shall be provided within the 1-year period
following such separation; and provided, further, that if a
Participant makes an election described in this paragraph
prior to the first day of the Plan Year in which the
Participant attains age 35, such election will become invalid
as of such date, and the Participant may make another such
election after such date.
3. The first sentence in Section 7.7(a) is amended to read
as follows:
If, in its discretion, the Administrative Committee shall
determine on application by any Participant with the consent
of his Spouse pursuant to a Qualified Election, that such
Participant has an immediate and heavy financial need, the
Administrative Committee may direct the Trustee to distribute
to such Participant such amount in a lump sum from his Salary
Deferral Account and/or Rollover Account from the Trust Fund
as the Administrative Committee may determine is necessary to
alleviate such financial need; provided that the amount
distributed may not be greater than the value of the
Participant's Salary Deferral Account and/or Rollover Account
(excluding the income earned on such Salary Deferral Account
and income earned on such Rollover Account); and provided
further that the amount distributed pursuant to this Section
7.7 may only be an amount necessary to satisfy an immediate
and heavy need plus amounts necessary to pay any federal,
state, or local income taxes or penalties reasonably
anticipated to result from the distribution.
4. The second sentence in Section 7.7(b) is amended to read
as follows:
In the event of financial need, a Participant may at any
time during the Plan Year make application to the
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Administrative Committee on a form provided by the
Administrative Committee to borrow from his Salary Deferral
Account and/or Rollover Account and the Administrative
Committee shall permit such a loan if it meets the conditions
herein specified; provided that such loan may not be less than
$1,000.
5. Section 7.7(b)(9) is amended in its entirety to read as
follows:
No loan may be made to a married Participant without the
written consent of his Spouse. The Spouse's written consent
must be made within the 90-day period ending on the date that
the loan is made. The consent must be in writing, must
acknowledge the effect of the loan, and must be witnessed by a
notary public. Such consent shall thereafter be binding with
respect to the consenting Spouse or any subsequent Spouse with
respect to that loan. A new consent is required if the
Participant's Salary Deferral and/or Rollover Account is used
for any increase in the amount of the loan. A written consent
which complies with the requirements of this Section shall be
deemed to meet any requirements of this Section relating to
consent of a subsequent Spouse.
6. Section 7.7(b)(13) is amended in its entirety to read as
follows:
Loan funds shall be taken exclusively from the Salary
Deferral Account and/or Rollover Account.
7. Except as altered and amended by virtue of the provisions
hereof, the provisions of the Plan, as amended, are hereby ratified and
confirmed.
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IN WITNESS WHEREOF, the Company has caused this Amendment to
be executed by its duly authorized officers and its corporate seal to be
affixed hereto by authority of its Board of Directors, and the Trustee
has executed this Amendment, all as of the day and date first above
written.
ATTEST: THE DELFIELD COMPANY
/s/ Laura Frye Veldhuis By:/s/ W. Joseph Manifold
------------------------------- -------------------------------
[CORPORATE SEAL] Its:VP CFO
-------------------------------
WITNESSETH:
/s/ Laura Frye Veldhuis /s/ Kevin E. McCrone
---------------------------- ----------------------------------
Kevin E. McCrone
/s/ Laura Frye Veldhuis /s/ W. Joseph Manifold
---------------------------- ----------------------------------
W. Joseph Manifold
/s/ Laura Frye Veldhuis /s/ Ronald A. Anderson
---------------------------- ----------------------------------
Ronald A. Anderson
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SECOND AMENDMENT
TO THE
DELFIELD COMPANY 401(k) SAVINGS AND PROFIT SHARING RETIREMENT PLAN
(As Amended and Restated Effective January 1, 1992)
THIS AMENDMENT made this 15th day of March, 1993, by THE
DELFIELD COMPANY (the "Company"), to THE DELFIELD COMPANY 401(k) SAVINGS
AND PROFIT SHARING RETIREMENT PLAN (the "Plan").
W I T N E S S E T H:
WHEREAS, the Company, by agreement with Kevin E. McCrone, W.
Joseph Manifold and Ronald A. Anderson (hereinafter called the
"Trustee"), as Trustee, established the Plan effective July 1, 1991,
which Plan was amended and restated effective January 1, 1992, and which
Plan was further amended by a First Amendment effective January.1, 1992;
and
WHEREAS, the Company, with the consent of the Trustee, now
wishes to further amend the Plan.
NOW, THEREFORE, the Company, with the consent of the Trustee,
hereby amends the Plan in the following respects effective January 1,
1993:
1. The fast paragraph of Section 4-2(a) is hereby amended to
read as follows:
Salary Deferral Contributions. Each eligible Participant
whose Salary Deferral Contributions have not been suspended as
provided herein, may elect to have allocated to his Salary
Deferral Account based on the payroll period of the Company
applicable to such Participant any percentage of Compensation
to be paid to him during such payroll period which is not less
than 2%, nor more than 15% of the Compensation (before
deducting the Salary Deferral Contribution allocated to his
Account hereunder) paid to such Participant for such payroll
period, subject to the limitations set forth in Section 6.3
and to the following:
2. The final paragraph of Section 6.3(b) is hereby amended
to read as follows:
If the amount of annual additions to any Participant's
account are reduced by reason of this Section 6.3 and Code
Section 415 or if thereafter it is determined that the annual
additions under the Plan would cause the limitation of this
Section 6.3 and Code Section 415 applicable to that
Participant for the Limitation Year to be exceeded as the
result of reallocation of forfeitures, a reasonable error in
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estimating the Participant's annual compensation, a reasonable
error in determining the amount of Salary Deferral
Contributions that may be made with respect to any individual
under the limits of Code Section 415, or under other limited
facts and circumstances acceptable to the Commissioner of the
Internal Revenue Service, then the excess Salary Deferral
amounts shall be paid to the Participant in cash as soon as
administratively feasible and other amounts allocated (or
reallocated) shall be reduced as above provided. These
amounts shall be disregarded for purposes of applying the
limitations described in Sections 4.1(b), 4.2(a)(1), and
4.2(a)(3). The Company shall advise an affected Participant
of any limitation upon allocation to his Account required by
this provision. Anything in this Plan to the contrary
notwithstanding, in no event shall an allocation be made to
any Participant which is in excess of the revised limitations
under Section 415 of the Code, as established under the Tax
Reform Act of 1986, and as amended.
3. A new subsection (g) is added to Section 7.6 to read in
its entirety as follows:
(g) Eligible Rollover Distributions.
(1) Application. This Section 7.6(g) applies to
distributions made on or after January 1, 1993.
Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a Distributee's election under this
Section 7.6(g), a Distributee may elect, at the time and in
the manner prescribed by the Administrative Committee, to have
any portion of an Eligible Rollover Distribution paid directly
to an Eligible Retirement Plan specified by the Distributee in
a Direct Rollover.
(2) Definitions. For purposes of this Section 7.6(g),
the following terms shall have the following meanings:
(A) Eligible Rollover Distribution means any
distribution of all or any portion of the balance to the
credit of the Distributee, except that an Eligible Rollover
Distribution does not include any distribution that is one of
a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or joint
life expectancies) of the Distributee and the Distributee's
designated Beneficiary, or for a specified period of 10 years
or more, any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code, and the portion
of any distribution that is not includible in gross income
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(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(B) Eligible Retirement Plan means an individual
retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of
the Code, an annuity plan described in Section 403(a) of the
Code, or a qualified trust described in Section 401(a) of the
Code that accepts the Distributee's Eligible Rollover
Distribution. However, in the case of an Eligible Rollover
Distribution to the surviving spouse, an Eligible Retirement
Plan is an individual retirement account or individual
retirement annuity.
(C) Distributee includes an Employee or former Employee.
In addition, the Employee's or former Employee's surviving
spouse and the Employee's or former Employee's spouse or
former spouse who is the alternate payee under a qualified
domestic relations order, as defined in Section 414(p) of the
Code, are Distributees with regard to the interest of the
spouse or former spouse.
(D) Direct Rollover means a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.
4. Except as altered and amended by virtue of the provisions
hereof, the provisions of the Plan, as amended, are hereby ratified and
confirmed.
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IN WITNESS WHEREOF, the Company has caused this Amendment to
be executed by its duly authorized officers and its corporate seal to be
affixed hereto by authority of its Board of Directors, and the Trustee
has executed this Amendment, all as of the day and date first above
written.
ATTEST: THE DELFIELD COMPANY
s/ Laura Frye Veldhuis By:/s/ W. Joseph Manifold
---------------------------- -------------------------
[CORPORATE SEAL] Its: VP CFO
-------------------------
WITNESSETH:
/s/ Laura Frye Veldhuis /s/ Kevin E. McCrone
--------------------------------- --------------------------------
Laura Frye Veldhuis Kevin E. McCrone
/s/ Virginia W. Phillips /s/ W. Joseph Manifold
--------------------------------- --------------------------------
Virginia W. Phillips W. Joseph Manifold
/s/Jara L. Mau /s/ Ronald A. Anderson
--------------------------------- --------------------------------
Jara L. Mau Ronald A. Anderson
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THIRD AMENDMENT
TO THE
DELFIELD COMPANY 401(K) SAVINGS AND PROFIT SHARING RETIREMENT PLAN
(As Amended and Restated Effective January 1, 1992)
THIS AMENDMENT made this 1 day of November, 1994, by THE
DELFIELD COMPANY (the "Company"), to THE DELFIELD COMPANY 401(k) SAVINGS
AND PROFIT SHARING RETIREMENT PLAN (the "Plan").
W I T N E S S E T H:
WHEREAS, the Company, by agreement with Kevin E. McCrone, W.
Joseph Manifold and Ronald A. Anderson (hereinafter called the
"Trustee"), as Trustee, established the Plan effective July 1, 1991,
which Plan was amended and restated effective January 1, 1992, and which
Plan was further amended by a First Amendment effective January 1, 1992
and by a Second Amendment effective January 1, 1993;
WHEREAS, the Company is now a wholly-owned indirect subsidiary
of Scotsman Industries, Inc.; and
WHEREAS, the Company, with the consent of the Trustee, now
wishes to further amend the Plan to permit the investment of certain
Plan assets in common stock of Scotsman Industries, Inc. and to make
other changes to the Plan.
NOW, THEREFORE, the Company, with the consent of the Trustee,
hereby amends the Plan in the following respects effective January 1,
1994:
1. A new subsection (d) is added to the end of Section 2.12
to read as follows:
(d) In addition to other applicable limitations set
forth in the Plan, and notwithstanding any other
provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual
compensation of each employee taken into account under
the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation
limit is $150,000, as adjusted by the Commissioner for
increases in the cost of living in accordance with
section 401(a)(17)(B) of the Internal Revenue Code. The
cost-of-living adjustment in effect for a calendar year
applies to any period, not exceeding 12 months, over
which compensation is determined (determination period)
beginning in such calendar year. If a determination
period consists of fewer than 12 months, the OBRA '93
annual compensation limit will be multiplied by a
fraction, the numerator of which is the number of months
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in the determination period, and the denominator of which
is 12.
For Plan Years beginning on or after January 1, 1994, any
reference in this Plan to the limitation under section
401(a)(17) of the Code shall mean the OBRA '93 annual
compensation limit set forth in this provision.
If compensation for any prior determination period is
taken into account in determining an employee's benefits
accruing in the current Plan Year, the compensation for
the prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior
determination period. For this purpose, for
determination periods beginning before the first day of
the first Plan Year beginning on or after January 1,
1994, the OBRA '93 annual compensation limit is $150,000.
2. A new paragraph (9) is added to Section 5.3 (a) to read
as follows:
(9) An Employee shall be entitled to such credit
for Hours of Service during a period of leave of absence
as is required by the Family and Medical Leave Act of
1993.
3. Section 7.6(f) is amended in its entirety to read as
follows:
(f) Method of Distribution. For any distribution
under this Plan, the Participant or Beneficiary may elect
payment in (1) cash, (2) mutual fund shares, (3) shares
of common stock, par value $.10 per share, of Scotsman
Industries, Inc. ("Scotsman Stock"), (4) a combination of
cash, mutual fund shares and/or shares of Scotsman Stock,
(5) annuity contracts, (6) an annuity under a group
annuity contract, or (7) insurance policies; provided,
however, that no distribution of less than (20) shares
will be made from the Scotsman Stock Fund (as defined in
Section 9.2(f) hereof) and provided, further, that
partial shares will be paid in cash. Annuity contracts
used to fund a Participant's benefit must meet the
requirements of Code Sections 411(a)(11) and 417.
4. Section 9.1 is amended in its entirety to read as
follows:
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Except as otherwise provided in Section 9.8,
(a) a Participant may elect to have amounts
credited to his Account invested in any investment
Fund provided by this Plan; and
(b) if no election is made, all amounts in a
Participant's Account will be invested in the manner
provided in Section 9.2(a).
5. The following clause (f) is added to Section 9.2:
(f) A Fund (the "Scotsman Stock Fund") primarily
composed of investments in Scotsman Stock (as
defined in Section 7.6(f)).
6. The first sentence of Section 9.4 is amended to read as
follows:
Subject to Section 9.8, (a) prior to January 1,
1995, from time to time as determined by the
Administrative Committee, but no less often than
once each quarter-annual period, a Participant may
elect. pursuant to Section 9.1, how contributions to
his Account shall be allocated among the Investment
Funds, and (b) on or after January 1, 1995, a
Participant may elect on a daily basis, pursuant to
Section 9.1, how contributions to his Account shall
be allocated among the Investment Funds.
Notwithstanding the provisions of the preceding
sentence, on and after January 1, 1995, no
Participant who is subject to the provisions of
Section 16 of the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the
Securities and Exchange Commission adopted
thereunder may elect, on a more frequent basis than
monthly, how contributions to his Account shall be
allocated among the Investment Funds.
7. The fifth sentence of Section 9.4 is amended to read as
follows:
Except as otherwise provided in Section 9.8, a
Participant who has not given affirmative investment
instructions to the Administrative Committee shall
have the entire balance in each of his Accounts
initially allocated to the Investments Fund
described in Section 9.2(a).
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8. The first sentence of Section 9.5 is amended to read as
follows:
Subject to Section 9.8, (a) prior to January 1,
1995, to the extent permitted by the Administrative
Committee, but not less often than once each
quarter-annual period, a Participant, a Former
Participant or a Beneficiary may elect to transfer
amounts between any of the Investment Funds, and (b)
on and after January 1, 1995, a Participant, a
Former Participant or a Beneficiary may elect on a
daily basis to transfer amounts allocated to his
Account among any of the Investment Funds.
Notwithstanding the provisions of the preceding
sentence, on and after January 1, 1995, no
Participant, Former Participant or Beneficiary who
is subject to the provisions of Section 16 of the
Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Securities and Exchange
Commission adopted thereunder may elect, on a more
frequent basis than monthly, to transfer amounts
allocated to his Account among any of the Investment
Funds.
9. The following Section 9.8 is hereby added to Article IX:
9.8 Investments in Scotsman Stock
-----------------------------
(a) The preceding provisions of this Article IX to the
contrary notwithstanding:
(1) For Plan Years beginning on and after January
1, 1995, a Participant may elect to have his Salary
Deferral Contributions allocated to any Investment
Fund, including the Scotsman Stock Fund, pursuant to
Section 9.4, and, subject to Section 9.5, may elect
to have any amount in his Account transferred to the
Scotsman Stock Fund.
(2) All Matching Contributions made with respect to
Plan Years commencing on or after January 1, 1995,
shall be allocated to the Scotsman Stock Fund and
shall not be subject to transfer by Participants
pursuant to Section 9.5.
(3) All Mandatory Contributions, Discretionary
Contributions and/or Qualifying Contributions made
with respect to any Plan Year commencing on or after
January, 1, 1995, shall, at the direction and in the
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discretion of the Company, be allocated to the
Scotsman Stock Fund and, to the extent so allocated,
shall not be subject to transfer by Participants
pursuant to Section 9.5. To the extent that any
such amounts are not so directed to be allocated to
the Scotsman Stock Fund by the Company, such amounts
shall be allocated at the discretion of the
Participant pursuant to Sections 9.1 and 9.4.
(b) All Scotsman Stock held in Participant Accounts
shall be voted and tendered as follows:
(1) The Company will deliver or cause to be
delivered to each Participant to whose Account an
allocation of Scotsman Stock has been made, or to
his Beneficiary in the event of the Participant's
death, all notices, prospectuses, financial
statements, proxies and proxy soliciting material,
and all other information and materials relating to
Scotsman Stock that Scotsman Industries, Inc.
distributes to its shareholders concerning the
exercise of voting and other rights. Such
Participant or Beneficiary will have the right to
direct the Trustee as to the exercise of all rights
with respect to full and fractional shares of
Scotsman Stock held for the Participant's Account as
part of the Scotsman Stock Fund. All Scotsman Stock
credited to Participant Accounts as to which the
Trustee does not receive voting instructions as
specified above, and all unallocated shares of
Scotsman Stock held by the Trustee, shall be voted
by the Trustee proportionately in the same manner as
it votes Scotsman Stock as to which the Trustee has
received voting instructions as specified above.
(2) In the case of a tender offer or exchange offer
for shares of Scotsman Stock held as part of the
Scotsman Stock Fund, as soon as possible after the
tender offer or exchange offer, the Trustee shall
cause Participants to be advised in writing as to
the terms of the tender offer or exchange offer, and
each Participant shall be given an opportunity to
indicate individually whether Scotsman Stock
allocated to his Account shall be tendered or
exchanged. The Trustee shall deal with the Scotsman
Stock in accordance with the Participant's
instructions. If no response is received from a
Participant, or if a Participant returns his
instruction form without indicating his
instructions, the Trustee shall not tender or
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exchange such Scotsman Stock. As to all unallocated
shares of Scotsman Stock held by the Trustee, the
Trustee shall tender the same proportion thereof as
the Scotsman Stock as to which the Trustee has
received instructions from Participants to tender
bears to all Scotsman Stock allocated to
Participants' Accounts. Furthermore, in
communicating with Participants for the purposes of
securing such permission, the Trustee may include a
statement from the management of Scotsman
Industries, Inc. setting forth its position with
respect to the tender offer or exchange offer. The
giving of permission to the Trustee to tender or
exchange Scotsman Stock shall not be deemed to
constitute withdrawal or suspension from the Plan or
forfeiture of any portion of the Participant's
interest in the Plan. The number of shares of
Scotsman Stock allocated to a Participant's Account
shall be the total number of shares allocated to his
Account as of the close of business on the date
immediately preceding the date on which the tender
offer or exchange offer commences. Fractional
shares shall be disregarded. If a Participant
instructs the Trustee to cause his shares of
Scotsman Stock to be tendered or exchanged, the
funds obtained when the Participant's shares of
Scotsman Stock are sold shall be invested in the
Investment Funds, other than the Scotsman Stock
Fund, in the same proportions as are set forth in
the Participant's election then in effect pursuant
to Section 9.1, or if such election directs the
investment of all of the Participant's Account in
the Scotsman Stock Fund, pursuant to a new
investment election made by the Participant pursuant
to Section 9.1.
(3) The Company shall provide the Trustee with
information regarding proxy voting and tender
offers, and in carrying out its responsibilities
under this subsection (b), the Trustee may
conclusively rely on information furnished to it by
the Company or Scotsman Industries, Inc., including
the names and current addresses of Participants, the
number of shares of Scotsman Stock allocated to
Participants' Accounts, and the number of shares of
Scotsman Stock held by the Trustee that have not yet
been allocated.
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(4) In the event of the death of a Participant, his
Beneficiary shall have all the rights of the
Participant set forth in this subsection (b).
(5) No provision of this subsection (b) shall
prevent the Trustee from taking any action relating
to its duties hereunder if the Trustee determines,
in its sole discretion, that such action is
necessary in order for the Trustee to fulfill its
fiduciary responsibilities hereunder.
(6) Instructions received from Participants
pursuant to this subsection (b) shall be held in the
strictest confidence by the Trustee and shall not,
except as otherwise required by law, be divulged or
released by the Trustee to any other person
including officers, directors or employees of the
Company or of Scotsman Industries, Inc.
10. The following Section 10.11 is added to Article X:
10.11 The duties, powers and authorities of the
Trustee set forth in this Article X shall be subject to,
and limited by, the provisions of Article IX relating to
the investment of contributions in Scotsman Stock and the
rights of Participants to vote and direct the tender of
Scotsman Stock allocated to their Accounts.
11. Except as altered and amended by virtue of the provisions
hereof, the provisions of the Plan, as amended, are hereby ratified and
confirmed.
-109-<PAGE>
IN WITNESS WHEREOF, the Company has caused this Amendment to
be executed by its duly authorized officers and its corporate seal to be
affixed hereto by authority of its Board of Directors, and the Trustee
has executed this Amendment, all as of the day and date first above
written.
ATTEST: THE DELFIELD COMPANY
/s/ Laura Frye Veldhuis By: /s/ W. Joseph Manifold
--------------------------- -----------------------
Its: Secretary
-----------------------
[Corporate Seal]
/s/ Laura Frye Veldhuis /s/ Kevin E. McCrone
--------------------------- ------------------------------
Kevin E. McCrone - Trustee
/s/ Laura Frye Veldhuis /s/ W. Joseph Manifold
--------------------------- ------------------------------
W. Joseph Manifold - Trustee
/s/ Laura Frye Veldhuis /s/ Ronald A. Anderson
--------------------------- ------------------------------
Ronald A. Anderson - Trustee
-110-<PAGE>
EXHIBIT 5
SCHIFF HARDIN & WAITE
7200 SEARS TOWER
CHICAGO, ILLINOIS 60606
Neal A. Mancoff
(312) 258-5699
November 4, 1994
Scotsman Industries, Inc.
775 Corporate Woods Parkway
Vernon Hills, Illinois 60061
Re: The Delfield Company 401(k) Savings
and Profit Sharing Retirement Plan
-----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Scotsman Industries,
Inc., a Delaware corporation (the "Company"), in connection
with the Company's filing of a Registration Statement on Form
S-8 (the "Registration Statement") covering (i) 200,000 shares
of Common Stock, $.10 par value per share, together with the
associated Common Stock Purchase Rights, of the Company to be
offered and sold pursuant to The Delfield Company 401(k)
Savings and Profit Sharing Retirement Plan, as amended and
restated effective January 1, 1992 (the "Plan"), as further
amended by the First Amendment thereto, dated December 29,
1992 (the "First Amendment"), the Second Amendment thereto,
dated March 15, 1993 (the "Second Amendment"), and the Third
Amendment thereto, dated November 1, 1994 (the "Third
Amendment"), and (ii) an indeterminate amount of interests to
be offered and sold pursuant to the Plan, as amended. The
shares of Common Stock being registered under the Registration
Statement are not original issuance securities. We have made
such investigation and have examined such documents as we have
deemed necessary in order to enable us to render the opinion
contained herein.
-111-<PAGE>
Attached hereto is a copy of an Internal Revenue
Service determination letter, dated November 17, 1993 finding
that the Plan, as amended by the First Amendment and the
Second Amendment, is qualified under Section 401 of the
Internal Revenue Code of 1986, as amended. It is our opinion
that the provisions of the Plan which have been amended by the
Third Amendment comply with the requirements of the Employee
Retirement Income Security Act of 1974, as amended, pertaining
to such provisions.
We hereby consent to the filing of this opinion as
an exhibit to the Registration Statement.
Very truly yours,
SCHIFF HARDIN & WAITE
By: /s/ Neal A. Mancoff
______________________
Neal A. Mancoff
-112-<PAGE>
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P.O. BOX 2508
CINCINNATI, OH 45201
Employer Identification Number:
38-2985152
Date: November 17, 1993 File Folder Number:
380062145
THE DELFIELD COMPANY Person to Contact:
P.O. Box 470 DAVID E. DIXON
MT. PLEASANT, MI 48804-0470 Contact Telephone Number:
(513) 684-3866
Plan Name:
THE DELFIELD COMPANY 401(K)
SAVINGS AND PROFIT-SHARING
RETIREMENT 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 features that may affect the
qualified status of your employee retirement plan, and provides
information on the reporting requirements for your plan. It also
describes some events that automatically nullify it. It is very
important that you read the 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)
adopted on December 29, 1992.
This determination letter is also applicable for the amendment(s)
adopted on March 15, 1993.
This determination letter is applicable for the plan adopted on
January 1, 1992.<PAGE>
THE DELFIELD COMPANY
This letter is based upon the certification and demonstrations you
submitted pursuant to Revenue Procedure 91-66. Therefore, the
certification and demonstrations are considered an integral part of this
letter. Accordingly, YOU MUST KEEP A COPY OF THESE DOCUMENTS AS A
PERMANENT RECORD OR YOU WILL NOT BE ABLE TO RELY ON THE ISSUES DESCRIBED
IN REVENUE PROCEDURE 91-66.
If you have any questions concerning this matter, please contact
the person whose name and telephone number are shown above.
Sincerely yours,
/s/ Robert T. Johnson
---------------------
Robert T. Johnson
District Director
Enclosures:
Publication 794
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of
our reports, dated February 17, 1994, included or incorporated by
reference to the Annual Report on Form 10-K of Scotsman Industries, Inc.
for the year ended January 2, 1994 and to all references to our firm
included in this Registration Statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
November 7, 1994
-115-<PAGE>
