<PAGE> 1
As filed with the Securities and Exchange Commission on December 15, 1997
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
----------------------------------
WINTON FINANCIAL CORPORATION
(Exact name of registrant as specified in its Articles)
Ohio 31-1303854
- -------------------------------- ------------------------------------
(state or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5511 Cheviot Road
Cincinnati, Ohio 45247
----------------------------------------
(Address of Principal Execution Offices)
Winton Savings & Loan Company
401(k) Profit Sharing Plan
----------------------------------------
(Full title of the plan)
Robert L. Bollin
Winton Financial Corporation
5511 Cheviot Road
Cincinnati, Ohio 45247
----------------------------------------
(Name and address of agent for service)
(513) 385-3880
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of securities Proposed maximum offering Proposed maximum Amount of
to be registered Amount to be registered (1) price per share (2) aggregate offering price registration fee
- ------------------------- ---------------------------- ---------------------------- --------------------------- -------------------
<S> <C> <C> <C> <C>
Common Shares 75,000 $20.00 $1,500,000 $455
No par value
<FN>
(1) 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 employee benefit plan described herein.
(2) Estimated solely for purposes of calculating the registration fee; based
upon the average of the high and low sales prices for a share of Winton
Financial Corporation on December 12, 1997, as reported by the American
Stock Exchange, Inc.
</TABLE>
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<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
----------------------------------------
A. The following documents previously filed with the
Securities and Exchange Commission (the "Commission") by Winton Financial
Corporation (the "Registrant") (SEC File No. 0-18993) and the Winton Savings &
Loan Company 401(k) Profit Sharing Plan (the "Plan") are incorporated herein by
reference and made a part hereof as of the respective dates of filing of such
documents:
(1) The Registrant's Annual Report on Form 10-KSB for
the fiscal year ended September 30, 1996, and all documents
filed with the Commission pursuant to the requirements of
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934
("Exchange Act") since that date;
(2) The description of the Common Shares of the
Registrant, as amended, contained in the Registrant's
Pre-Effective Amendment No. 1 to the Registration Statement on
Form S-4 filed with the Securities and Exchange Commission on
November 6, 1995; and
(3) The Annual Report on Form 11-K for the year ended
September 30, 1996, filed concurrently with the filing of this
Registration Statement.
Any documents that may be filed with the Commission pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the
date hereof and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall also be deemed to be incorporated herein
by reference and to be made a part hereof from the date of filing such
documents.
ITEM 4. Description of Securities.
--------------------------
Not Applicable.
ITEM 5. Interests of Named Experts and Counsel.
---------------------------------------
None.
ITEM 6. Indemnification Of Directors and Officers.
------------------------------------------
A. Division (E) of Section 1701.13 of the Ohio Revised Code
governs indemnification by a corporation and provides as follows:
(E)(1) A corporation may indemnify or agree to indemnify any
person who was or is a party or is threatened to be made a party, to
any threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative, other than
an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a limited
liability company, or a partnership, joint venture, trust, or other
enterprise, against expenses, including attorney's fees, judgments,
fines, and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit, or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, if he had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit,
or proceeding by judgment, order, settlement, or conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner
he
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reasonably believed to be in or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceeding,
he had reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to indemnify any
person who was or is a party or is threatened to be made a party, to
any threatened, pending, or completed action or suit by or in the right
of the corporation to procure a judgment in its favor, by reason of the
fact that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as
a director, trustee, officer, employee, member, manager, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against expenses, including attorney's fees, actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be
made in respect of any of the following:
(a) Any claim, issue, or matter as to which such
person is adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation unless, and
only to the extent that, the court of common pleas or the
court in which such action or suit was brought determines,
upon application, that, despite the adjudication of liability,
but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such
expenses as the court of common pleas or such other court
shall deem proper;
(b) Any action or suit in which the only liability
asserted against a director is pursuant to section 1701.95 of
the Revised Code.
(3) To the extent that a director, trustee, officer, employee,
member, manager, or agent has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in
divisions (E)(1) and (2) of this section, or in defense of any claim,
issue, or matter therein, he shall be indemnified against expenses,
including attorney's fees, actually and reasonably incurred by him in
connection with the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of this
section, unless ordered by a court, shall be made by the corporation
only as authorized in the specific case, upon a determination that
indemnification of the director, trustee, officer, employee, member,
manager, or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in division (E)(1) or (2) of
this section. Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of
directors of the indemnifying corporation who were not and are
not parties to or threatened with any such action, suit, or
proceeding referred to in division (E)(1) or (2) of this
section;
(b) If the quorum described in division (E)(4)(a) of
this section is not obtainable or if a majority vote of a
quorum of disinterested directors so directs, in a written
opinion by independent legal counsel other than an attorney,
or a firm having associated with it an attorney, who has been
retained by or who has performed services for the corporation
or any person to be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in
which such action, suit, or proceeding referred to in division
(E)(1) or (2) of this section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under division
(E)(4)(b) of this section shall be promptly communicated to the person
who threatened or brought the action or suit by or in the right of the
corporation under division (E)(2) of this section, and, within ten days
after receipt of such notification, such person shall have the right to
petition the court of common pleas or the court in which action or suit
was brought to review the reasonableness of such determination.
(5)(a) Unless at the time of a director's act or omission that
is the subject of an action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, the articles or the regulations
of a corporation state, by specific
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reference to this division, that the provisions of this division do not
apply to the corporation and unless the only liability asserted against
a director in an action, suit, or proceeding referred to in division
(E)(1) or (2) of this section is pursuant to section 1701.95 of the
Revised Code, expenses, including attorney's fees, incurred by a
director in defending the action, suit, or proceeding shall be paid by
the corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, upon receipt of an
undertaking by or on behalf of the director in which he agrees to do
both of the following:
(i) Repay such amount if it is proved by clear and
convincing evidence in a court of competent jurisdiction that
his action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the
corporation or undertaken with reckless disregard for the best
interests of the corporation;
(ii) Reasonably cooperate with the corporation
concerning the action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a
director, trustee, officer, employee, member, manager, or
agent in defending any action, suit, or proceeding referred to
in division (E)(1) or (2) of this section, may be paid by the
corporation as they are incurred, in advance of the final
disposition of the action, suit, or proceeding, as authorized
by the directors in the specific case, upon receipt of an
undertaking by or on behalf of the director, trustee, officer,
employee, member, manager, or agent to repay such amount, if
it ultimately is determined that he is not entitled to be
indemnified by the corporation.
(6) The indemnification authorized by this section shall not
be exclusive of, and shall be in addition to, any other rights granted
to those seeking indemnification under the articles, the regulations,
any agreement, a vote of shareholders or disinterested directors, or
otherwise, both as to action in their official capacities and as to
action in another capacity while holding their offices or positions,
and shall continue as to a person who has ceased to be a director,
trustee, officer, employee, member, manager, or agent and shall inure
to the benefit of the heirs, executors, and administrators of such a
person.
(7) A corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to, trust funds,
letters of credit, or self-insurance, on behalf of or for any person
who is or was a director, officer, employee, member, manager, or agent
of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, or agent of
another corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture, trust, or
other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify
him against such liability under this section. Insurance may be
purchased from or maintained with a person in which the corporation has
a financial interest.
(8) The authority of a corporation to indemnify persons
pursuant to division (E)(1) or (2) of this section does not limit the
payment of expenses as they are incurred, indemnification, insurance,
or other protection that may be provided pursuant to divisions (E)(5),
(6), and (7) of this section. Divisions (E)(1) and (2) of this section
do not create any obligation to repay or return payments made by the
corporation pursuant to division (E)(5), (6), or (7).
(9) As used in this division, references to "corporation"
includes all constituent corporations in a consolidation or merger and
the new or surviving corporation, so that any person who is or was a
director, officer, employee, trustee, member, manager or agent of such
a constituent corporation, or is or was serving at the request of such
constituent corporation as a director, trustee, officer, employee,
member, manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a partnership,
joint venture, trust, or other enterprise, shall stand in the same
position under this section with respect to the new or surviving
corporation as he would if he had served the new or surviving
corporation in the same capacity.
B. Article Five of the Registrant's Code of Regulations provides for
the indemnification of officers and directors as follows:
SECTION 5.01. MANDATORY INDEMNIFICATION. The corporation shall indemnify
any officer or director of the corporation who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including, without limitation, any action threatened or instituted by or in the
right
4
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of the corporation), by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, trustee, officer, employee or agent
of another corporation (domestic or foreign, nonprofit or for profit),
partnership, joint venture, trust or other enterprise, against expenses
(including, without limitation, attorneys' fees, filing fees, court reporters'
fees and transcript costs), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and with respect
to any criminal action or proceeding, he had no reasonable cause to believe his
conduct was unlawful. A person claiming indemnification under this Section 5.01
shall be presumed, in respect of any act or omission giving rise to such claim
for indemnification, to have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and
with respect to any criminal matter, to have had no reasonable cause to believe
his conduct was unlawful, and the termination of any action, suit or proceeding
by judgment, order, settlement or conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, rebut such presumption.
SECTION 5.02. COURT-APPROVED INDEMNIFICATION. Anything contained in the
Regulations or elsewhere to the contrary notwithstanding:
(A) the corporation shall not indemnify any officer or director of
the corporation who was a party to any completed action or suit instituted by or
in the right of the corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, trustee, officer, employee or agent of another corporation (domestic
or foreign, nonprofit or for profit), partnership, joint venture, trust or other
enterprise, in respect of any claim, issue or matter asserted in such action or
suit as to which he shall have been adjudged to be liable for acting with
reckless disregard for the best interests of the corporation or misconduct
(other than negligence) in the performance of his duty to the corporation unless
and only to the extent that the Court of Common Pleas of Hamilton County, Ohio,
or the court in which such action or suit was brought shall determine upon
application that, despite such adjudication of liability, and in view of all the
circumstances of the case, he is fairly and reasonably entitled to such
indemnity as such Court of Common Pleas or such other court shall deem proper;
and
(B) the corporation shall promptly make any such unpaid
indemnification as is determined by a court to be proper as contemplated by this
Section 5.02.
SECTION 5.03. INDEMNIFICATION FOR EXPENSES. Anything contained in the
Regulations or elsewhere to the contrary notwithstanding, to the extent that an
officer or director of the corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Section
5.01, or in defense of any claim, issue or matter therein, he shall be promptly
indemnified by the corporation against expenses (including, without limitation,
attorneys' fees, filing fees, court reporters' fees and transcript costs)
actually and reasonably incurred by him in connection therewith.
SECTION 5.04 DETERMINATION REQUIRED. Any indemnification required under
Section 5.01 and not precluded under Section 5.02 shall be made by the
corporation only upon a determination that such indemnification of the officer
or director is proper in the circumstances because he has met the applicable
standard of conduct set forth in Section 5.01. Such determination may be made
only (A) by a majority vote of a quorum consisting of directors of the
corporation who were not and are not parties to, or threatened with, any such
action, suit or proceeding, or (B) if such a quorum is not obtainable or if a
majority of a quorum of disinterested directors so directs, in a written opinion
by independent legal counsel other than an attorney, or a firm having associated
with it an attorney, who has been retained by or who has performed services for
the corporation, or any person to be indemnified, within the past five years, or
(C) by the shareholders, or (D) by the Court of Common Pleas of Hamilton County,
Ohio, or (if the corporation is a party thereto) the court in which such action,
suit or proceeding was brought, if any; any such determination may be made by a
court under division (D) of this Section 5.04 at any time including, without
limitation, any time before, during or after the time when any such
determination may be requested of, be under consideration by or have been denied
or disregarded by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by the shareholders under
division (C) of this Section 5.04; and no failure for any reason to make any
such determination, and no decision for any reason to deny any such
determination, by the disinterested directors under division (A) or by
independent legal counsel under division (B) or by shareholders under division
(C) of this Section 5.04 shall be evidence in rebuttal of the presumption
recited in Section 5.01. Any determination made by the disinterested directors
under division (A) or by independent legal counsel under division (B) of this
Section 5.04 to make indemnification in respect of any claim, issue or matter
asserted in an action or suit threatened or brought by or in the right of the
corporation shall be promptly communicated to the person who threatened or
brought such action or suit, and within ten (10) days after receipt of such
notification such person shall have the right to petition the Court of Common
Pleas of Hamilton County, Ohio, or the court in which such action or suit was
brought, if any, to review the reasonableness of such determination.
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SECTION 5.05. ADVANCES FOR EXPENSES. Expenses (including, without
limitation, attorneys' fees, filing fees, court reporters' fees and transcript
costs) incurred in defending any action, suit or proceeding referred to in
Section 5.01 shall be paid by the corporation in advance of the final
disposition of such action, suit or proceeding to or on behalf of the officer or
director promptly as such expenses are incurred by him, but only if such officer
or director shall first agree, in writing, to repay all amounts so paid in
respect of any claim, issue or other matter asserted in such action, suit or
proceeding in defense of which he shall not have been successful on the merits
or otherwise:
(A) if it shall ultimately be determined as provided in Section 5.04
that he is not entitled to be indemnified by the corporation as provided under
Section 5.01; or
(B) if, in respect of any claim, issue or other matter asserted by or
in the right of the corporation in such action or suit, he shall have been
adjudged to be liable for acting with reckless disregard for the best interests
of the corporation or misconduct (other than negligence) in the performance of
his duty to the corporation, unless and only to the extent that the Court of
Common Pleas of Hamilton County, Ohio, or the court in which such action or suit
was brought shall determine upon application that, despite such adjudication of
liability, and in view of all the circumstances, he is fairly and reasonably
entitled to all or part of such indemnification.
SECTION 5.06. ARTICLE FIVE NOT EXCLUSIVE. The indemnification provided by
this Article Five shall not be deemed exclusive of any other rights to which any
person seeking indemnification may be entitled under the Articles or the
Regulations or any agreement, vote of shareholders or disinterested directors,
or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be an officer or director of the corporation and shall inure
to the benefit of the heirs, executors, and administrators of such a person.
SECTION 5.07. INSURANCE. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, trustee, officer, employee, or agent of another corporation
(domestic or foreign, nonprofit or for profit), partnership, joint venture,
trust or other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the obligation or the power to
indemnify him against such liability under the provisions of this Article Five.
SECTION 5.08. CERTAIN DEFINITIONS. For purposes of this Article Five, and
as examples and not by way of limitation:
(A) A person claiming indemnification under this Article 5 shall be
deemed to have been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 5.01, or in defense of any
claim, issue or other matter therein, if such action, suit or proceeding shall
be terminated as to such person, with or without prejudice, without the entry of
a judgment or order against him, without a conviction of him, without the
imposition of a fine upon him and without his payment or agreement to pay any
amount in settlement thereof (whether or not any such termination is based upon
a judicial or other determination of the lack of merit of the claims made
against him or otherwise results in a vindication of him); and
(B) References to an "other enterprise" shall include employee
benefit plans; references to a "fine" shall include any excise taxes assessed on
a person with respect to an employee benefit plan; and references to "serving at
the request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the best
interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the corporation" within the meaning of that term as used in this Article Five.
SECTION 5.09. VENUE. Any action, suit or proceeding to determine a claim
for indemnification under this Article Five may be maintained by the person
claiming such indemnification, or by the corporation, in the Court of Common
Pleas of Hamilton County, Ohio. The corporation and (by claiming such
indemnification) each such person consent to the exercise of jurisdiction over
its or his person by the Court of Common Pleas of Hamilton County, Ohio, in any
such action, suit or proceeding.
C. Registrant currently maintains a directors' and officers'
liability policy providing for insurance of directors and officers for liability
incurred in connection with performance of their duties as directors and
officers. Such policy does not, however, provide insurance for losses resulting
from willful or criminal misconduct.
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ITEM 7. Exemption from Registration Claimed.
------------------------------------
Not Applicable.
ITEM 8. Exhibits.
---------
See the Exhibit Index attached hereto. A copy of the Internal
Revenue Service (the "IRS") determination letter is included herewith as Exhibit
5. The Registrant hereby undertakes to submit any amendments to the Plan to the
IRS in a timely manner and to make those changes, if any, required by the IRS in
order for the Plan to qualify as a tax-qualified employee benefit plan meeting
the requirements of Section 401(a) of the Internal Revenue Code of 1986, as
amended.
ITEM 9. Undertakings.
-------------
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement to:
(i) Include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) 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.
Notwithstanding the foregoing, any increase
or decrease in volume of securities offered
(if the total dollar value of securities
offered would not exceed that which was
registered) and any deviation from the low or
high end of the estimated maximum offering
range may be reflected in the form of
prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more
than a 20% change in the maximum aggregate
offering price set forth in the "Calculation
of Registration Fee" table in the effective
registration statement.
(iii) Include any additional or changed material
information on the plan of distribution;
Provided, however, That paragraphs (1)(i) and
(1)(ii) of this section do not apply if the
information required to be included in a
post-effective amendment by those paragraphs
is contained in periodic reports filed with
or furnished to the Commission by the
Registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934,
that are incorporated by reference in the
registration statement.
(2) That, for determining liability under the Securities
Act of 1933, to treat each post-effective amendment
as a new registration statement of the securities
offered, and the offering of the securities at that
time to be the initial bona fide offering; and
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold
at the end of the offering.
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<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cincinnati, State of Ohio, on December 5, 1997.
WINTON FINANCIAL CORPORATION
By: /s/ Robert L. Bollin
--------------------------------
Robert L. Bollin, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities on December 5, 1997.
/s/ Jill M. Burke
------------------------------------
Jill M. Burke
Treasurer, Principal Financial and
Financial Accounting Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and as of the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Robert J. Bollin Director December 5, 1997
- -------------------------------------
Robert J. Bollin
/s/ Robert L. Bollin Director and President December 5, 1997
- --------------------------------------
Robert L. Bollin
/s/ Robert E. Hoeweler Director December 5, 1997
- ----------------------------------
Robert E. Hoeweler
Director
- ----------------------------------
Thomas H. Humes
Director
- ----------------------------------
Timothy M. Mooney
/s/ William J. Parchman Director December 5, 1997
- ----------------------------------
William J. Parchman
Director
- ----------------------------------
J. Clay Stinnett
/s/ Henry L. Schulhoff Director December 5, 1997
- ------------------------------------
Henry L. Schulhoff
</TABLE>
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<PAGE> 9
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the trustees have duly caused this registration statement to be signed on their
behalf by the undersigned, thereunto duly authorized, in the City of Cincinnati,
State of Ohio, on December 5, 1997.
WINTON FINANCIAL CORPORATION
/s/ Robert L. Bollin
------------------------------
By: Robert L. Bollin, Trustee
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EXHIBIT INDEX
-------------
Exhibit No.
- -----------
4 (a) Winton Savings & Loan Company 401(k)
Profit Sharing Plan, as amended
4 (b) Articles of Incorporation (Incorporated
by reference to the Current Report on
Form 8-K dated June 21, 1995 and filed
by the Registrant with the SEC, Exhibit
4a)
5 Internal Revenue Service determination
letter
23 (a) Consent of Independent Accountants
<PAGE> 1
AMENDMENT NO. 1
TO THE
WINTON SAVINGS & LOAN COMPANY
401(k) PROFIT SHARING PLAN
WHEREAS, Winton Savings & Loan Company ("Employer") has
adopted the Winton Savings & Loan Company 401(k) Profit Sharing Plan ("Plan");
and
WHEREAS, the Plan provides that the Employer may amend the
Plan from time to time; and
WHEREAS, the Employer desires to amend the Plan in certain
respects;
NOW, THEREFORE, the Plan is amended as follows:
1. The first sentence of Section 2.02(a) shall be deleted in
its entirety and the following shall be substituted:
"(a) A Participant is entitled to make an
Enrollment Designation as of the first payroll period which
coincides with or next follows the date such individual first
becomes eligible to participate in the Plan, or at anytime
thereafter. A Participant is entitled to modify an Enrollment
Designation as of the first day of each January and July."
2. The following sentence shall be added to Section
4.02 at the end thereof:
"A Participant shall be entitled to direct his Account as of
the first day of each calendar quarter providing the
Participant submits investment instructions to the Plan
Administrator at least 30 days prior to such quarter (or such
lesser number of days as determined by the Plan
Administrator."
IN WITNESS WHEREOF, this Amendment shall be effective as of
January 1, 1997.
WINTON SAVINGS & LOAN COMPANY
By: /s/ James W. Brigger
---------------------------------
Name (Print):James W. Brigger
------------------------
Title: Secretary
-------------------------------
Date: 8/11/97
---------------
<PAGE> 2
WINTON SAVINGS & LOAN COMPANY
401(k) PROFIT SHARING PLAN
EFFECTIVE OCTOBER 1, 1994
<PAGE> 3
WINTON SAVINGS & LOAN COMPANY
401(k) PROFIT SHARING PLAN
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
SECTION PAGE
------- ----
<S> <C> <C>
1 PARTICIPATION.................................................................. 1
1.01 Eligibility Requirements....................................................... 1
1.02 Service for Eligibility........................................................ 1
2 CONTRIBUTIONS.................................................................. 1
2.01 Profit Sharing Contributions................................................... 1
2.02 Section 401(k) Contributions................................................... 2
2.03 Matching Contributions......................................................... 2
2.04 Rollover Contributions......................................................... 3
3 LIMITATIONS ON ALLOCATIONS..................................................... 3
3.01 Limitations on Annual Additions................................................ 3
3.02 Corrective Adjustments......................................................... 4
3.03 Maximum Section 401(k) Contributions for
Highly-Compensated Employees................................................. 5
3.04 Maximum Matching Contributions
for Highly-Compensated Employees............................................. 7
4 PARTICIPANTS' ACCOUNTS......................................................... 9
4.01 Establishment of Accounts...................................................... 9
4.02 Investment of Accounts......................................................... 9
5 VALUATION OF PARTICIPANTS' ACCOUNTS............................................ 9
5.01 Valuations..................................................................... 9
5.02 Method of Adjustment........................................................... 9
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C> <C>
6 RETIREMENT BENEFITS............................................................ 10
6.01 Eligibility for Retirement..................................................... 10
6.02 Amount of Retirement Benefit................................................... 10
7 DEATH BENEFITS................................................................. 10
7.01 Amount of Death Benefit........................................................ 10
7.02 Designation of Beneficiary..................................................... 10
7.03 Distribution of Death Benefit.................................................. 11
8 DISABILITY BENEFITS............................................................ 11
8.01 Amount of Disability Benefit................................................... 11
8.02 Determination of Total and Permanent
Disability................................................................... 12
9 IN-SERVICE AND TERMINATION BENEFITS............................................ 12
9.01 Amount of Benefits Upon Termination of
Employment................................................................... 12
9.02 In-Service Distributions at Age 59 1/2......................................... 12
9.03 Hardship Distributions......................................................... 13
9.04 Distribution of Rollover Contributions......................................... 14
10 VESTING........................................................................ 14
10.01 Determination of Vested Benefits............................................... 14
10.02 Full Vesting at Normal Retirement Age.......................................... 14
10.03 Termination After Eligibility for
Retirement................................................................... 14
10.04 Service for Vesting............................................................ 15
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C> <C>
11 PAYMENT OF BENEFITS............................................................ 15
11.01 Method of Payment.............................................................. 15
11.02 Timing of Payments............................................................. 16
11.03 Installment Payments........................................................... 16
11.04 Distributions After Death...................................................... 16
11.05 Distribution Upon Termination of Employment.................................... 17
11.06 Eligible Rollover Distributions................................................ 17
12 BREAK IN SERVICE RULES......................................................... 18
12.01 Effect of Break in Service on Eligibility...................................... 18
12.02 Authorized Leaves of Absence................................................... 18
13 TRUST AGREEMENT................................................................ 18
13.01 Description of Trust Agreement................................................. 18
14 PLAN ADMINISTRATION............................................................ 19
14.01 Plan Administrator............................................................. 19
14.02 Duties of Plan Administrator................................................... 19
14.03 Interpretation of Document..................................................... 19
15 AMENDMENTS..................................................................... 20
15.01 Employer's Right to Amend Plan................................................. 20
16 DISTRIBUTIONS ON PLAN TERMINATION.............................................. 20
16.01 Full Vesting on Plan Termination............................................... 20
16.02 Payment on Plan Termination.................................................... 20
16.03 Discontinuance of Contributions; Partial
Termination of Plan.......................................................... 21
</TABLE>
iii
<PAGE> 6
<TABLE>
<S> <C> <C>
17 CREDITORS OF PARTICIPANTS...................................................... 21
17.01 Non-Assignability.............................................................. 21
17.02 Qualified Domestic Relations Orders............................................ 21
17.03 Loans to Participants.......................................................... 21
18 CLAIMS PROCEDURES.............................................................. 23
18.01 Filing a Claim for Benefits.................................................... 23
18.02 Denial of Claim................................................................ 23
18.03 Remedies Available to Participants............................................. 23
19 TOP HEAVY RULES................................................................ 24
19.01 Definitions.................................................................... 24
19.02 Top Heavy Status............................................................... 25
19.03 Minimum Contributions.......................................................... 26
20 MISCELLANEOUS.................................................................. 26
20.01 Employer's Right to Terminate Employees........................................ 26
20.02 Gender and Number.............................................................. 26
20.03 Merger or Consolidation........................................................ 26
20.04 Named Fiduciaries.............................................................. 26
20.05 Limitations on Payment......................................................... 27
20.06 Limitation on Reversion of Contributions....................................... 27
20.07 Notice Requirements............................................................ 27
21 DEFINITIONS.................................................................... 28
</TABLE>
iv
<PAGE> 7
WINTON SAVINGS & LOAN COMPANY
401(k) PROFIT SHARING PLAN
Winton Savings & Loan Company hereby adopts, as of the Effective Date,
the following amended and restated profit sharing and Section 401(k) plan for
the exclusive benefit of the Employer's eligible Employees and, where
applicable, the designated Beneficiaries of such Employees. It is intended that
this Plan, together with the Trust Agreement, shall comply with the applicable
provisions of the Internal Revenue Code of 1986, as amended, and the Employee
Retirement Income Security Act of 1974, as amended. This Plan supersedes and
replaces any other profit sharing plans that may have been adopted by the
Employer prior to the Effective Date.
SECTION 1
PARTICIPATION
-------------
1.01. ELIGIBILITY REQUIREMENTS
------------------------
Each Employee of the Employer shall be eligible to participate on the
date on which he has completed 12 months of service as a Full-Time Employee of
the Employer and has attained age 21.
1.02. SERVICE FOR ELIGIBILITY
-----------------------
The 12-month period in which the Employee must meet the Full-Time
requirement shall be the 12 consecutive months beginning with his Employment
Commencement Date and, if necessary, the 12-consecutive-month period or periods
beginning on annual anniversaries of such date.
SECTION 2
CONTRIBUTIONS
-------------
2.01. PROFIT SHARING CONTRIBUTIONS
----------------------------
(a) Subject to its right to terminate or amend this Plan, for
each Plan Year commencing prior to October 1, 1994, the Employer may make a
contribution for the benefit of each Employee who was a Full-Time or Current
Participant during such Plan Year. Subject to its right to terminate or amend
this Plan, for each Plan Year commencing on or after October 1, 1994, the
Employer may make a contribution for the benefit of each Employee who was a
Full-Time Current Participant during such Plan Year. The amount of such
contribution by the Employer to be paid to the Plan in any year shall be such
amount as the Employer may in its discretion determine. All contributions made
by the Employer pursuant to this section shall be made to the Trustee.
<PAGE> 8
(b) For each Plan Year commencing prior to October 1, 1994,
the Employer contribution shall be allocated among the Profit Sharing Accounts
of all Employees who were Full-Time Participants or Current Participants during
such Plan Year in the proportion which the Compensation of each Full-Time or
Current Participant for such year bears to the Compensation of all Full-Time and
Current Participants for such year. For each Plan Year commencing on or after
October 1, 1994, the Employer contribution shall be allocated among the Profit
Sharing Accounts of all Employees who were Full-Time Current Participants during
such Plan Year in the proportion which the Compensation of each Full-Time
Current Participant for such year bears to the Compensation of all Full-Time
Current Participants for such year.
2.02. SECTION 401(k) CONTRIBUTIONS
----------------------------
(a) A Participant is entitled to make or modify an Enrollment
Designation as of the the first day of each January and July. Additionally, in
the event the Employer declares a bonus to be paid to Employees, a Participant
is entitled to make a separate Enrollment Designation which applies to the bonus
declared, provided the Participant completes such Enrollment Designation within
7 days after which the Participant is notified of the proposed amount of the
Participant's bonus. The Enrollment Designation will provide for the reduction
of up to 15 % of the Compensation of the Participant and a corresponding
contribution to the Plan by the Employer as a Section 401(k) Contribution which
will be allocated to the Participant's Section 401(k) Account. No Enrollment
Designation will be effective unless it is made at least 30 days prior to the
first day of January or July (or such greater or lesser period prior to such
date as the Plan Administrator establishes for the purposes of administrative
convenience). Notwithstanding the foregoing, Section 401(k) Contributions may be
discontinued as of the last day of any payroll period by making an Enrollment
Designation at least 30 days prior to such date (or such greater or lesser
period prior to such date as the Plan Administrator may establish for the
purpose of administrative convenience).
(b) The Employer may in its sole discretion make fully vested
contributions to the Plan which will be allocated to the Section 401(k) Accounts
of one or more Participants who are Non-Highly-Compensated Employees, in such
amounts as the Employer directs for the purpose of complying with the applicable
limits on Section 401(k) Contributions in the Code. Such contributions will be
taken into account in computing a Participant's deferral percentage but will not
be taken into account in the allocation of Matching Contributions.
2.03. MATCHING CONTRIBUTIONS
----------------------
(a) For Plan Years commencing prior to October 1, 1994, the
Employer may make Matching Contributions to the Matching Account of each
Full-Time Participant and each Current Participant for whom a Section 401(k)
Contribution is made during the Plan Year. For Plan Years commencing on or after
October 1, 1994, the Employer may make Matching Contributions to the Matching
Account of each Full-Time Current Participant for whom a Section 401(k)
Contribution is made during the Plan Year. The amount of such Matching
Contribution will equal the Matching Contribution rate or rates in effect during
the Plan Year as applied to the Participant's Section 401(k) Contributions for
the Plan Year or such greater or lesser amounts as the Employer determines prior
to
2
<PAGE> 9
the date on which the Matching Contribution is required to be made. The Employer
may establish for any Plan Year a Matching Contribution rate which consists of
(i) the maximum number of percentage points of Compensation for which Matching
Contributions will be made; and (ii) the rate, or the method for determining the
rate, at which Matching Contributions will be made with respect to such
percentage points of Compensation.
(b) The Employer may in its sole discretion make fully vested
contributions to the Plan which will be allocated to the Section 401(k) Accounts
of one or more Participants who are Non-Highly-Compensated Employees, in such
amounts as the Employer directs for the purpose of complying with the applicable
limits on Matching Contributions in the Code. Such contributions will be taken
into account in computing a Participant's contribution percentage but will not
be taken into account in the allocation of Matching Contributions.
2.04. ROLLOVER CONTRIBUTIONS
----------------------
Subject to such restrictions as the Plan Administrator may apply or
affirmative refusal by the Plan Administrator to accept rollovers, a Participant
may contribute to this Plan, as a Rollover Contribution, a distribution from
another qualified pension or profit sharing plan. Amounts so rolled over shall
be credited to, and maintained in, the Participant's Rollover Account. Amounts
transferred directly from another qualified pension or profit sharing plan shall
be treated hereunder as a Rollover Contribution.
SECTION 3
LIMITATIONS ON ALLOCATIONS
--------------------------
3.01. LIMITATIONS ON ANNUAL ADDITIONS
-------------------------------
(a) Annual Additions to each Participant's Account shall not
exceed the lesser of (i) $30,000 or, if greater, 1/4 of the defined benefit
dollar limitation under Section 415(b)(1) of the Code; or (ii) 25% of the
Participant's compensation for the Limitation Year.
For purposes of this section, "compensation" shall
mean compensation as defined in Treasury Regulation Section 1.415-2(d) and shall
include wages, salaries, fees for professional services, percentage of profits,
Earned Income in the case of a Self-Employed Individual, disability payments,
paid or reimbursed moving expenses to the extent not deductible by the
Participant, medical reimbursement items and the value of a non-qualified stock
option to the extent includable in an Employee's gross income upon making the
election under Code Section 83(b). Specifically excluded are salary deferral
contributions that are not included in the Participant's gross income for the
year of contribution, distributions from most deferred compensation plans,
amounts realized from the sale of a non-qualified stock option plan or from the
sale, exchange or other disposition of stock acquired under a qualified stock
option plan and most amounts which receive special tax benefits.
3
<PAGE> 10
(b) If the Participant is, or was, covered under a defined
benefit plan and a defined contribution plan maintained by the Employer, the sum
of the Participant's defined benefit plan fraction and defined contribution plan
fraction may not exceed 1.0 in any Limitation Year.
The defined benefit plan fraction is a fraction, the
numerator of which is the sum of the Participant's projected annual benefits
under all defined benefit plans (whether or not terminated) maintained by the
Employer, and the denominator of which is the lesser of (i) 1.25 times the
dollar limitation of Code Section 415(b)(1)(A) in effect for the Limitation
Year; or (ii) 1.4 times the Participant's average compensation for the three
consecutive years that produced the highest average.
The defined contribution plan fraction is a fraction,
the numerator of which is the sum of the Annual Additions to the Participant's
Account under all defined contribution plans maintained by the Employer (whether
or not terminated) for the current and all prior Limitation Years, and the
denominator of which is the sum of the lesser of the following amounts
determined for such year and for each prior Year of Service with the Employer:
(i) 1.25 times the dollar limitation in effect under Code Section 415(c)(1)(A);
or (ii) 1.4 times the amount which may be taken into account under Code Section
415(c)(1)(B).
For any years in which the Plan is "top heavy," "1.0"
shall be substituted for "1.25" in the preceding two paragraphs.
If, in any Limitation Year, the sum of the defined
benefit plan fraction and the defined contribution plan fraction exceeds 1.0,
the rate of benefit accruals under this Plan will be reduced so that the sum of
the fractions equals 1.0.
3.02. CORRECTIVE ADJUSTMENTS
----------------------
If, due to a reasonable error in estimating a Participant's annual
compensation or in determining the amount of Section 401(k) Contributions which
may be made under the limits of Section 415 of the Code, or due to the
allocation of Forfeitures, an excess Annual Addition exists, such excess will be
disposed of as follows:
(a) At the discretion of the Plan Administrator, Section
401(k) Contributions may be returned to the Participant.
(b) If an excess still exists, the excess amount will be used
to reduce Employer contributions for such Participant in the next, and
succeeding, Limitation Years. If the Participant was not covered by the Plan at
the end of the Limitation Year, such excess will be held unallocated in a
suspense account and applied to reduce Employer contributions for all remaining
Participants in the next, and succeeding, Limitation Years.
4
<PAGE> 11
3.03. MAXIMUM SECTION 401(k) CONTRIBUTIONS FOR HIGHLY-COMPENSATED EMPLOYEES
---------------------------------------------------------------------
(a) A Participant's Section 401(k) Contributions for 1987 or
any later calendar year are not to exceed $7,000 (as adjusted in accordance with
Section 402(g) of the Code). If a Participant's Section 401(k) Contributions,
combined with elective deferrals to other plans, exceed such limit, the
Participant may assign to the Plan any portion of the excess (the "excess
deferrals") by notifying the Plan Administrator in writing of such excess
deferrals by March 31 of the following year. No notice is required for any
excess deferrals which arise solely from Section 401(k) Contributions to this
Plan and elective deferrals to other plans sponsored by the Employer and its
Affiliates. Any excess deferrals, and income allocatable to such excess
deferrals, shall be distributed to the Participant no later than the April 15 of
the following year. For this purpose, income allocable to the excess deferrals
shall be income for the year during which the excess deferrals were made.
(b) The deferral percentage for eligible Highly-Compensated
Employees under this Plan shall not exceed the greater of (i) 125% of such
percentage for eligible Non-Highly-Compensated Employees; or (ii) the lesser of
(A) 200% of such percentage for eligible Non-Highly-Compensated Employees; or
(B) such percentage for eligible Non-Highly-Compensated Employees plus two
percentage points, effective for Plan Years starting after December 31, 1986.
(c) For purposes of this section, the deferral percentage for
a specified group of Employees for a Plan Year shall be the average of the
ratios (calculated separately for each Employee in such group) of (i) the
Section 401(k) Contributions paid under the Plan on behalf of each such Employee
for such Plan Year to (ii) the Employee's Compensation for such Plan Year.
(d) When determining whether a plan satisfies the deferral
percentage test, all Section 401(k) Contributions that are made under two or
more plans that are aggregated for purposes of Code Sections 401(a)(4) or
410(b), other than Code Section 410(b)(2)(A)(ii), are to be treated as made
under a single plan. If two or more plans are permissively aggregated for
purposes of Code Section 401(k), the aggregated plans must also satisfy Code
Sections 401(a)(4) and 410(b) as though they were a single plan. The
contribution ratio of a Highly-Compensated Employee will be determined (using
all Plan Years ending with or within the same calendar year) by treating all
plans subject to Code Section 401(k) under which the Highly-Compensated Employee
is eligible as a single plan.
(e) Any Employee who is eligible to make Section 401(k)
Contributions under this Plan is an eligible Employee for purposes of this
section.
(f) The Plan shall not be treated as failing to meet the
requirements of this section for any Plan Year if, before the close of the
following Plan Year (and if practical, to avoid certain excise taxes, before the
close of the first 2 1/2 months of the following Plan Year), the amount of the
excess contributions for such Plan Year and any income allocable to such
contributions is distributed. For this purpose, income allocable to excess
contributions shall be income for the Plan Year for which the excess
contributions were made. Any distribution of the excess contributions for any
Plan Year shall be made to Highly-Compensated Employees on the basis of the
respective portions of such amounts attributable to each of such Employees. For
purposes of this section, the term "excess
5
<PAGE> 12
contributions" shall mean, with respect to any Plan Year, the excess of (i) the
amount of the Section 401(k) Contributions made on behalf of Highly-Compensated
Employees for such Plan Year over (ii) the maximum amount of such contributions
permitted under the contribution percentage requirement described above
(determined by reducing contributions made on behalf of Highly-Compensated
Employees in order of their contribution percentages beginning with the highest
of such percentages).
(g) Notwithstanding previous paragraphs in this section, in
the case of a Highly-Compensated Employee who is either a 5% owner or one of the
ten most Highly-Compensated Employees and is thereby subject to the family
aggregation rules of Code Section 414(q)(6), the actual deferral ratio (ADR) for
the family group (which is treated as one Highly-Compensated Employee) is the
ADR determined by combining the contributions and Compensation of all eligible
Family Members. Except to the extent taken into account in the preceding
sentence, the contributions and Compensation of all Family Members are
disregarded in determining the actual contribution percentages for the groups of
Highly-Compensated Employees and Non-Highly-Compensated Employees.
(h) In the case of a Highly-Compensated Employee whose ADR is
determined under the family aggregation rules described in the previous
paragraph, the determination of the amount of excess contributions shall be made
as follows:
(i) If the Highly-Compensated Employee's ADR is
determined by combining the contributions
and Compensation of all Family Members, then
the ADR is reduced in accordance with the
"leveling" method described in Section
1.401(k)-1(f)(2) of the regulations; and the
excess contributions for the family unit are
allocated among the Family Members in
proportion to the contributions of each
Family Member that have been combined.
(ii) If the Highly-Compensated Employee's ADR is
determined by combining the contributions
and Compensation of only those Family
Members who are highly compensated without
regard to family aggregation, then the ADR
is reduced in accordance with the leveling
method but not below the ADR of eligible
non-highly-compensated Family Members.
Excess contributions are determined by
taking into account the contributions of the
eligible Family Members who are highly
compensated without regard to family
aggregation and are allocated among such
Family Members in proportion to their
contributions. If further reduction of the
ADR is required, excess contributions
resulting from this reduction are determined
by taking into account the contributions of
all eligible Family Members and are
allocated among such Family Members in
proportion to their contributions.
6
<PAGE> 13
3.04. MAXIMUM MATCHING CONTRIBUTIONS FOR HIGHLY-COMPENSATED EMPLOYEES
---------------------------------------------------------------
(a) The contribution percentage for eligible
Highly-Compensated Employees under this Plan shall not exceed the greater of (i)
125% of such percentage for all other eligible Employees; or (ii) the lesser of
(A) 200% of such percentage for all other eligible Employees; or (B) such
percentage for all other eligible Employees plus two percentage points,
effective for Plan Years starting after December 31, 1986.
(b) For purposes of this section, the contribution percentage
for a specified group of Employees for a Plan Year shall be the average of the
ratios (calculated separately for each Employee in such group) of (i) the
Matching Contributions paid under the Plan on behalf of each such Employee for
such Plan Year to (ii) the Employee's Compensation for such Plan Year.
(c) For purposes of this section, when determining whether a
plan satisfies the contribution percentage test, all after tax contributions and
matching contributions that are made under two or more plans that are aggregated
for purposes of Code Sections 401(a)(4) or 410(b), other than Code Section
410(b)(2)(A)(ii), are to be treated as made under a single plan; and if two or
more plans are permissively aggregated for purposes of Code Section 401(m), the
aggregated plans must also satisfy Code Sections 401(a)(4) and 410(b) as though
they were a single plan. The contribution ratio of a Highly-Compensated Employee
will be determined (using all Plan Years ending with or within the same calendar
year) by treating all plans subject to Code Section 401(m) under which the
Highly-Compensated Employee is eligible as a single plan.
(d) Any Employee who is eligible to receive a Matching
Contribution under the Plan shall be considered an "eligible employee" for
purposes of this section.
(e) The Plan shall not be treated as failing to meet the
requirements of this section for any Plan Year if, before the close of the
following Plan Year (and if practical, to avoid certain excise taxes, before the
close of the first 2 1/2 months of the following Plan Year), the amount of the
excess aggregate contributions for such Plan Year and any income allocable to
such contributions is distributed. For this purpose, income allocable to excess
contributions shall be income for the Plan Year for which the excess
contributions were made. Any distribution of the excess aggregate contributions
for any Plan Year shall be made to Highly-Compensated Employees on the basis of
the respective portions of such amounts attributable to each of such Employees.
For purposes of this section, the term "excess aggregate contributions" shall
mean, with respect to any Plan Year, the excess of (i) the aggregate amount of
the Matching Contributions actually made on behalf of Highly-Compensated
Employees for such Plan Year over (ii) the maximum amount of such contributions
permitted under the contribution percentage requirement described above
(determined by reducing contributions made on behalf of Highly-Compensated
Employees in order of their contribution percentages beginning with the highest
of such percentages).
(f) Notwithstanding previous paragraphs in this section, in
the case of a Highly-Compensated Employee who is either a 5% owner or one of the
ten most Highly-Compensated Employees and is thereby subject to the family
aggregation rules of Code Section 414(q)(6), the actual
7
<PAGE> 14
contribution ratio (ACR) for the family group (which is treated as one
Highly-Compensated Employee) is the ACR determined by combining the
contributions and Compensation of all eligible Family Members. Except to the
extent taken into account in the preceding sentence, the contributions and
Compensation of all Family Members are disregarded in determining the actual
contribution percentages for the groups of Highly-Compensated Employees and
Non-Highly-Compensated Employees.
(g) In the case of a Highly-Compensated Employee whose ACR is
determined under the family aggregation rules described in the previous
paragraph, the determination of the amount of excess aggregate contributions
shall be made as follows:
(i) If the Highly-Compensated Employee's ACR is
determined by combining the contributions
and Compensation of all Family Members, then
the ACR is reduced in accordance with the
"leveling" method described in Section
1.401(m)-1(e)(2) of the regulations and the
excess aggregate contributions for the
family unit are allocated among the Family
Members in proportion to the contributions
of each Family Member that have been
combined.
(ii) If the Highly-Compensated Employee's ACR is
determined by combining the contributions
and Compensation of only those Family
Members who are highly compensated without
regard to family aggregation, then the ACR
is reduced in accordance with the leveling
method but not below the ACR of eligible
non-highly-compensated Family Members.
Excess aggregate contributions are
determined by taking into account the
contributions of the eligible Family Members
who are highly compensated without regard to
family aggregation and are allocated among
such Family Members in proportion to their
contributions. If further reduction of the
ACR is required, excess aggregate
contributions resulting from this reduction
are determined by taking into account the
contributions of all eligible Family Members
and are allocated among such Family Members
in proportion to their contributions.
(h) If the Section 401(k) Contributions and Matching
Contributions for a Plan Year would result in the multiple use of the
alternative limitation (as defined in Section 401(m) of the Code and the
regulations thereunder which are hereby incorporated by reference), the Section
401(k) Contributions and Matching Contributions of Highly-Compensated Employees
will be distributed (or, if forfeitable under the plan, forfeited) in accordance
with Section 401(m) of the Code and the regulations thereunder as directed by
the Plan Administrator, so that there is no multiple use of the alternative
limitation.
8
<PAGE> 15
SECTION 4
PARTICIPANTS' ACCOUNTS
----------------------
4.01. ESTABLISHMENT OF ACCOUNTS
-------------------------
The Plan Administrator shall establish and maintain the following
Accounts for a Participant: (a) a Profit Sharing Account; (b) a Section 401(k)
Account; (c) a Matching Account; and (d) a Rollover Account. All of a
Participant's Accounts shall be referred to in the aggregate as the
Participant's "Account."
4.02. INVESTMENT OF ACCOUNTS
----------------------
Each sum credited to a Participant's Account shall be invested by the
Trustee in such investment vehicles pursuant to directions given by the
Participant to the Plan Administrator pursuant to procedures and limitations
established by the Plan Administrator and communicated to all Participants. Each
Participant shall be fully responsible for his investment decisions regarding
his Account under the Plan.
SECTION 5
VALUATION OF PARTICIPANTS' ACCOUNTS
-----------------------------------
5.01. VALUATIONS
----------
As of each Valuation Date, or more frequently at the election of the
Plan Administrator, the Plan Administrator shall obtain an evaluation of the
assets of the Trust Fund from the Trustee on the basis of the market value of
the assets of the Trust Fund. On the basis of such valuation, the Participants'
Accounts shall be adjusted as of such Valuation Date to reflect the effect of
income received or accrued, realized and unrealized profits and losses,
expenses, payments to Participants and all other transactions in the period
since the last preceding Valuation Date.
5.02. METHOD OF ADJUSTMENT
--------------------
The amount to the credit of each Participant's Account shall be
adjusted as of each Valuation Date by the following credits and charges for the
period since the last Valuation Date, in the order specified:
(a) Distributions will be debited from the Participant's
Account.
(b) At the option of the Plan Administrator, contributions may
be credited to the Participant's Account on such a time weighted basis as the
Plan Administrator determines.
(c) Earnings and losses of the Trust Fund will be allocated to
the Participant's Account according to the Participant's adjusted Account. Where
there is more than one investment
9
<PAGE> 16
fund in the Trust Fund and/or Participants are permitted to direct the
investment of their Accounts, calculations shall be based upon the portion of
the Participant's Account invested in an investment fund or investment.
(d) Contributions not previously credited under this section
will be credited to the Participant's Account.
SECTION 6
RETIREMENT BENEFITS
-------------------
6.01. ELIGIBILITY FOR RETIREMENT
--------------------------
A Participant may retire from the employ of the Employer and become
eligible for a retirement benefit under the Plan on his Normal Retirement Date,
Early Retirement Date or Late Retirement Date.
6.02. AMOUNT OF RETIREMENT BENEFIT
----------------------------
The amount which a Participant shall be entitled to receive upon his
Normal Retirement Date, Early Retirement Date or Late Retirement Date shall be
the value of his Account as of the last Valuation Date preceding his Normal
Retirement Date, Early Retirement Date or Late Retirement Date, as applicable,
plus any contributions subsequently allocated to his Account and less any
distributions subsequently made to him. The amount referred to in this paragraph
shall be nonforfeitable.
SECTION 7
DEATH BENEFITS
--------------
7.01. AMOUNT OF DEATH BENEFIT
-----------------------
The death benefit under this Plan shall be equal to the value of the
deceased Participant's Account as of the last Valuation Date preceding the date
of his death, plus any contributions subsequently allocable to his Account and
less any distributions subsequently made to him.
7.02. DESIGNATION OF BENEFICIARY
--------------------------
Subject to the provisions of Section 7.03, each Participant shall
designate by a written instrument filed with the Plan Administrator one or more
Beneficiaries who, upon the death of the Participant, shall be entitled to
receive the death benefit described in Section 7.01. If more than one
Beneficiary is named, the Participant may specify the sequence and/or proportion
in which payments must be made to each Beneficiary. In the absence of such
specification, payments shall be made in equal shares to all named Beneficiaries
then living at the time of the Participant's death. To the extent
10
<PAGE> 17
otherwise consistent with this Plan, a Participant may change his Beneficiary
from time to time by written notice delivered to the Plan Administrator in the
manner prescribed by the Plan Administrator. If no Beneficiary has been
designated or if no designated Beneficiary is living at the time of the
Participant's death, payment of such death benefit, if any, to the extent
permitted by law, shall be made to the surviving person or persons in the first
of the following classes of successive preference of Beneficiaries: (a)
Surviving Spouse; (b) executors or administrators of the estate of such deceased
Participant. Any minor's share shall be paid to such adult or adults as have, in
the opinion of the Plan Administrator, assumed custody and support of such
minor. Proof of death satisfactory to the Plan Administrator must be furnished
prior to the payment of any death benefit under the Plan.
Once benefits begin to be paid to a Beneficiary pursuant to this
section, such Beneficiary shall name in a writing filed with the Plan
Administrator an individual or individuals to receive the remainder of such
benefit, if any, upon the death of the Beneficiary. In the absence of such a
designation by the Beneficiary, such remaining benefit, if any, shall be paid to
the estate of the Beneficiary.
7.03. DISTRIBUTION OF DEATH BENEFIT
-----------------------------
If a Participant dies without a Surviving Spouse either before
retirement or after retirement, but before a complete distribution of his
Account, the death benefit described in Section 7.01 shall be distributed to his
Beneficiary, in accordance with the provisions of Section 11.
If a Participant dies with a Surviving Spouse either before retirement
or after retirement, but before distribution of his Account has commenced
pursuant to Section 11, the death benefit described in Section 7.01 shall be
paid to his Surviving Spouse, in accordance with the provisions of Section 11.
However, if the Spouse consents to an alternate Beneficiary to receive the death
benefit under this section, such death benefit shall be distributed to such
alternate Beneficiary, in accordance with the provisions of Section 11. For
purposes of the preceding sentence, the consent of the Spouse must (a) be in
writing; (b) designate a specific Beneficiary, including any class of
beneficiaries or contingent beneficiaries, which may not be changed without the
consent of the Spouse (or the Spouse expressly permits designations by the
Participant without further consent of the Spouse); (c) acknowledge the effect
of such consent; and (d) be witnessed by a Plan representative or notary public.
SECTION 8
DISABILITY BENEFITS
-------------------
8.01. AMOUNT OF DISABILITY BENEFIT
----------------------------
If a Participant becomes "totally and permanently disabled" as defined
in Section 8.02, such Participant shall be entitled to receive as a disability
benefit the value of his Account as of the last Valuation Date preceding the
date that the Plan Administrator determines him to be "totally and permanently
disabled," plus any contributions subsequently allocated to him and less any
distributions subsequently made to him. This provision shall be consistently and
uniformly applied in a nondiscriminatory manner.
11
<PAGE> 18
8.02. DETERMINATION OF TOTAL AND PERMANENT DISABILITY
-----------------------------------------------
A Participant shall be considered to be "totally and permanently
disabled" if it is established by a licensed physician selected by the Plan
Administrator that (a) the Participant has suffered a disability which is
expected to result in his death or last for not less than 12 months; (b) the
Participant is not able to perform his job or any job for which he is reasonably
suited as a result of his education, training and experience; and (c) the
Participant qualifies for Social Security disability benefits. The determination
by the Plan Administrator with respect to whether a Participant is totally and
permanently disabled shall be made in a nondiscriminatory manner.
SECTION 9
IN-SERVICE AND TERMINATION BENEFITS
-----------------------------------
9.01. AMOUNT OF BENEFITS UPON TERMINATION OF EMPLOYMENT
-------------------------------------------------
If a Participant leaves the employ of the Employer for any reason other
than retirement, death or disability in accordance with Section 6, 7 or 8
hereof, he shall be entitled to receive the vested portion of his Account, as
determined on the Valuation Date preceding the date of his termination of
employment with the Employer or election to take a distribution, plus any
Section 401(k) Contributions and/or Rollover Contributions added to his Account
since such last Valuation Date less any distributions subsequently made to such
Participant. Such nonforfeitable percentage shall be determined in accordance
with Section 10.01 of the Plan.
9.02. IN-SERVICE DISTRIBUTIONS AT AGE 59 1/2
--------------------------------------
A Participant who is 100% vested in his Account and who has attained
age 59 1/2 may withdraw from the Trust as of any Valuation Date all of his
Account or any portion which would not reduce the amount in such Account to less
than $500. Upon receipt of a request for a withdrawal which would reduce the
balance to less than $500, the Trustee will distribute the entire amount in such
Account. In-service distributions can be made no more frequently than once each
Plan Year and will be charged against a Participant's Account in such a
nondiscriminatory manner as the Plan Administrator determines.
12
<PAGE> 19
9.03. HARDSHIP DISTRIBUTIONS
----------------------
(a) A Participant may apply to the Plan Administrator for a
hardship distribution, of the amount necessary to satisfy an immediate and heavy
financial need, from the Participant's Account balance (less income allocated to
the Participant's Section 401(k) Account after December 31, 1988). Hardship
distributions will be deemed to be made as of the Valuation Date preceding the
date of distribution and will reduce the Participant's Account accordingly.
Hardship distributions will be charged against a Participant's Account in such
manner as the Plan Administrator determines.
(b) For purposes of this Plan, an immediate and heavy
financial need is the need for money for:
(i) expenses for or necessary to obtain medical
care described in Section 213(d) of the Code
for the Participant or the Participant's
Spouse or dependents;
(ii) costs directly related to the purchase
(excluding mortgage payments) of a principal
residence of the Participant;
(iii) the payment of tuition and related
educational fees for the next 12 months of
post secondary education for the Participant
or the Participant's Spouse, children or
dependents;
(iv) the prevention of the eviction of the
Participant from his or her principal
residence or the foreclosure on the mortgage
of the Participant's principal residence; or
(v) any other reason added to the list of deemed
immediate and heavy financial needs by the
Commissioner of the Internal Revenue
Service.
(c) An amount is necessary to satisfy an immediate
and heavy financial need if:
(i) the amount distributed does not exceed the
amount of the immediate and heavy financial
need (including amounts necessary to pay
reasonably anticipated taxes and penalties
on the hardship distribution);
(ii) the Participant has obtained all other
distributions and all nontaxable loans
currently available under the Plan and any
other plans maintained by the Employer or an
Affiliate;
13
<PAGE> 20
(iii) a Participant who has received a hardship
distribution will not be eligible to make
any Section 401(k) Contributions for the 12
months after the hardship distribution,
under this Plan or any other plan maintained
by the Employer or any Affiliate; and
(iv) for the calendar year following the calendar
year of the hardship distribution, the
Participant's Section 401(k) Contributions
will not exceed $7,000 (as adjusted under
Section 402(g) of the Code) less the amount
of the Participant's Section 401(k)
Contributions in the calendar year of the
hardship distribution.
9.04. DISTRIBUTION OF ROLLOVER CONTRIBUTIONS
--------------------------------------
A Participant may withdraw from the Trust, as of any Valuation Date,
all of his Rollover Account or any portion thereof which would not reduce the
amount in such Account to less than $500. Upon receipt of a request for
withdrawal of a portion of such Account which would reduce it to less than $500,
the Trustee will distribute the entire amount of such Account.
SECTION 10
VESTING
-------
10.01. DETERMINATION OF VESTED BENEFITS
--------------------------------
Vesting of a Participant's Account under this Plan shall be determined
as follows:
(a) Any amounts credited to an individual's Section 401(k)
Account and Rollover Account shall be fully vested and nonforfeitable at all
times.
(b) Effective October 1,1989, any amounts credited to an
individual's Profit Sharing Account and Matching Account shall be fully vested
and nonforfeitable at all times.
10.02. FULL VESTING AT NORMAL RETIREMENT AGE
-------------------------------------
Notwithstanding any provision in this Plan to the contrary, all amounts
credited to an individual's Account shall be fully vested and nonforfeitable if
the individual attains Normal Retirement Age prior to terminating employment.
10.03. TERMINATION AFTER ELIGIBILITY FOR RETIREMENT
--------------------------------------------
The termination of a Participant's employment with the Employer after
he is eligible for retirement under the Plan shall be considered a retirement.
14
<PAGE> 21
10.04. SERVICE FOR VESTING
-------------------
Years of Service for vesting purposes shall include all Years of
Service with the Employer, provided that service before the Employee attains the
age of 18 years shall be excluded.
SECTION 11
PAYMENT OF BENEFITS
-------------------
11.01. METHOD OF PAYMENT
-----------------
At the time a Participant becomes entitled to receive any distribution,
the Trustee, acting in accordance with the written instructions of the Plan
Administrator, shall make payment from the Trust Fund to such Participant or his
Beneficiary in one of the following optional methods of payment elected by such
Participant or Beneficiary:
(a) a lump sum;
(b) periodic installments over a period of time to be elected
by the Participant;
(c) any other annuity form of payment provided by an insurance
company through the purchase of an annuity contract; or
(d) any combination thereof.
Notwithstanding the provisions of the previous paragraph, in the event
that a married Participant elects any optional method of payment which provides
an annuity, the benefit of such married Participant shall be paid in the form of
a Qualified Joint and Survivor Annuity, unless, within the 90-day period ending
on the Annuity Starting Date, the Spouse of the Participant consents, pursuant
to a Qualified Election, to an optional method of payment.
If a Participant's Account is to be distributed in other than an
immediate lump sum, minimum annual payments under the Plan must be paid over one
of the following periods (or a combination thereof):
(a) the life of the Participant;
(b) the life of the Participant and a designated Beneficiary;
(c) a period certain not extending beyond the life expectancy
of the Participant; or
(d) a period certain not extending beyond the joint and last
survivor expectancy of the Participant and a designated Beneficiary.
15
<PAGE> 22
11.02. TIMING OF PAYMENTS
------------------
Unless the Participant or Beneficiary elects otherwise, the payment of
retirement, death and disability benefits shall begin no later than 60 days
after the latest of the close of the Plan Year in which (a) the Participant
attains his Normal Retirement Age; (b) occurs the 10th anniversary of the year
in which the Participant commenced participation in the Plan; or (c) the
Participant terminates service with the Employer. Effective for Plan Years
beginning after December 31, 1988, in no event will the entire interest of a
Participant be distributed, or commence to be distributed, later than the April
1st following the year in which the Participant attains age 70 1/2.
11.03. INSTALLMENT PAYMENTS
--------------------
If the Participant's entire interest is to be distributed in other than
a lump sum, then the amount to be distributed each year 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 the Participant's
Spouse is not the designated Beneficiary, the method of distribution selected
must assure that at least 50% of the present value of the amount available for
distribution is paid within the life expectancy of the Participant.
11.04. DISTRIBUTIONS AFTER DEATH
-------------------------
If the distribution of the Participant's interest has begun and he dies
before his entire interest has been distributed to him, the remaining portion of
such interest will be distributed at least as rapidly as under the method of
distribution being used prior to the Participant's death.
Subject to the succeeding paragraph, if the Participant dies before his
distribution has begun, his entire interest shall be distributed within five
years of his death unless (a) a portion of his interest is payable to or on
behalf of a designated Beneficiary; (b) such portion will be distributed over
the life of such designated Beneficiary or over a period not extending beyond
the life expectancy of such designated Beneficiary; and (c) such distribution
begins not later than one year after the date of the Participant's death (or
such date as prescribed by the Secretary of Treasury).
Notwithstanding the preceding paragraph, if the designated Beneficiary
is the Participant's Surviving Spouse, the date by which distribution must
commence under (c) in the preceding paragraph shall be the date the Participant
would have attained age 70 1/2. If the Surviving Spouse dies before distribution
to said Spouse begins, this section shall apply as if the Surviving Spouse were
the Participant. Life expectancy of a Surviving Spouse may be recalculated
annually; however, in the case of any other designated Beneficiary, such life
expectancy will be calculated at the time that payment first commences without
further calculations. In addition, 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.
16
<PAGE> 23
11.05. DISTRIBUTION UPON TERMINATION OF EMPLOYMENT
-------------------------------------------
If a Participant terminates service and the value of his vested Account
balance does not exceed (or at the time of any prior distribution did not
exceed) $3,500, the Participant shall receive a distribution of the value of the
entire nonforfeitable portion of his Account in a lump sum as soon as
administratively feasible following the termination of his service; and the
remainder of his Account will be treated as a Forfeiture.
If a Participant terminates service and the value of his vested Account
balance exceeds (or at the time of any prior distribution exceeded) $3,500 and:
(a) the Participant elects to receive the value of his vested Account, he shall
receive such vested Account balance as soon as administratively feasible
following the termination of his service; or (b) the Participant does not elect
an earlier distribution, he shall receive his vested Account balance as soon as
administratively feasible after attainment of age 62. Upon distribution of the
Participant's vested Account balance, the remainder of the Participant's Account
will be treated as a Forfeiture.
11.06. ELIGIBLE ROLLOVER DISTRIBUTIONS
-------------------------------
(a) Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a distributee's election under the Plan, a
distributee may elect, at the time and in the manner prescribed by the Plan
Administrator, to have any portion of an eligible rollover distribution made on
or after January 1, 1993 paid directly to an eligible retirement plan specified
by the distributee in a direct rollover.
(b) The following definitions will apply for purposes of this
section:
(i) Eligible rollover distribution: An eligible
rollover distribution is any distribution of
all or any portion of the balance to the
credit of the distributee, except that an
eligible rollover distribution does not
include: (A) 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;
(B) any distribution that is for a specified
period of ten years or more; (C) any
distribution to the extent such distribution
is required under Code Section 401(a)(9);
and (D) the portion of any distribution that
is not includable in gross income
(determined without regard to the exclusion
for net unrealized appreciation with respect
to employer securities).
(ii) Eligible retirement plan: An eligible
retirement plan is an individual retirement
account described in Code Section 408(a), an
individual retirement annuity described in
Code Section 408(b), an annuity plan
described in Code Section 403(a) or a
qualified trust described in Code
17
<PAGE> 24
Section 401(a) that accepts the
distributee's eligible rollover
distribution. However, in the case of an
eligible rollover distribution to the
Surviving Spouse, an eligible retirement
plan is an individual retirement account or
individual retirement annuity.
(iii) Distributee: A distributee includes an
Employee or former Employee. In addition,
the Spouse or Surviving Spouse of an
Employee or former Employee is a distributee
with regard to the interest of the Spouse or
Surviving Spouse.
(iv) Direct rollover: A direct rollover is a
payment by the Plan to the eligible
retirement plan specified by the
distributee.
SECTION 12
BREAK IN SERVICE RULES
----------------------
12.01. EFFECT OF BREAK IN SERVICE ON ELIGIBILITY
-----------------------------------------
A former Participant who is reemployed by the Employer following the
termination of his service shall participate in the Plan on the date of his
reemployment.
12.02. AUTHORIZED LEAVES OF ABSENCE
----------------------------
Authorized leaves of absence, as determined by the Plan Administrator,
including military service recognized by law as leave of absence, will be
included in determining Years of Service for both eligibility and vesting
purposes. All Employees in similar circumstances will be treated alike.
SECTION 13
TRUST AGREEMENT
---------------
13.01. DESCRIPTION OF TRUST AGREEMENT
------------------------------
The Employer shall continue the Trust Agreement with the Trustee to
provide for the administration of the Trust Fund. With its continuation, the
Trust Agreement shall be deemed to form a part of this Plan; and any and all
rights or benefits which may accrue to any person under this Plan shall be
subject to all the terms and provisions of the Trust Agreement.
18
<PAGE> 25
SECTION 14
PLAN ADMINISTRATION
-------------------
14.01. PLAN ADMINISTRATOR
------------------
The Plan shall be administered by a Plan Administrator. Such Plan
Administrator shall be appointed by and serve at the pleasure of the Employer.
14.02. DUTIES OF PLAN ADMINISTRATOR
----------------------------
The Plan Administrator shall supervise the maintenance of such accounts
and records as shall be necessary or desirable to show the contributions of the
Employer, allocation to Participants' Accounts, payments from Participants'
Accounts, valuations of the Trust Fund and all other transactions pertinent to
the Plan.
The Plan Administrator is authorized to perform, in its discretion, all
functions necessary to administer the Plan, including, without limitation, to
determine the eligibility and qualification of Employees for benefits under the
Plan; to determine the allocation and vesting of contributions, earnings and
profits of the Plan; to interpret and construe the terms of the Plan; to adopt
rules, regulations and procedures consistent therewith and to decide all
disputes with respect to the rights and obligations of Participants in the Plan.
If the Trust Agreement permits, the Plan Administrator may direct the Trustee
with respect to investment of the assets of the Trust Fund or may employ
investment counsel to do so.
The Plan Administrator may employ one or more persons to render advice
with regard to any responsibility it has under the Plan and may designate others
to carry out any of its responsibilities.
14.03. INTERPRETATION OF DOCUMENT
--------------------------
The construction and interpretation of the Plan provisions are vested
with the Plan Administrator, in its absolute discretion, including, without
limitation, the determination of benefits, eligibility and interpretation of
Plan provisions. The Plan Administrator will endeavor to act, whether by general
rules or by particular decisions, so as to treat all persons in similar
circumstances without discrimination. All such decisions, determinations and
interpretations shall be final, conclusive and binding upon all parties having
an interest in the Plan.
19
<PAGE> 26
SECTION 15
AMENDMENTS
----------
15.01. EMPLOYER'S RIGHT TO AMEND PLAN
------------------------------
The Employer shall have the right at any time, by an instrument in
writing, to modify, alter or amend this Plan in whole or in part; provided,
however, that no such change shall in any way affect the vested rights of the
Employees under this Plan. Effective for Plan Years beginning after December 31,
1988, if an amendment changes the nonforfeitable rights provided in Section 10,
each Participant having not less than three Years of Service may elect, during
the period beginning when the amendment is adopted and ending no earlier than
the latest of (a) 60 days after the amendment's adoption; (b) 60 days after the
amendment's effective date; or (c) 60 days after the Participant is issued a
written notice of the amendment, to have his nonforfeitable rights computed
without regard to such amendment. No amendment to the Plan shall decrease the
balance of a Participant's Account or eliminate any optional form of
distribution on a retroactive basis.
The Board of Directors of the Employer, an executive committee of the Board of
Directors, or other committee of the Board of Directors or any executive officer
to which or whom the Board of Directors delegates discretionary authority with
respect to the Plan, may exercise the Employer's right to amend or terminate the
Plan. Any amendment to the Plan shall be executed by any individual authorized
by the Board of Directors of the Employer.
SECTION 16
DISTRIBUTIONS ON PLAN TERMINATION
---------------------------------
16.01. FULL VESTING ON PLAN TERMINATION
--------------------------------
When and if this Plan is terminated, after the payment of all expenses
and after all adjustments of Participants' Accounts to reflect such expenses,
fund profits or losses, income and allocations to date of termination, each
Participant shall be fully vested and shall be entitled to receive the entire
amount then credited to his Account.
16.02. PAYMENT ON PLAN TERMINATION
---------------------------
The Plan Administrator shall make payment of each Participant's Account
in either cash or assets of the Trust Fund. Such payment shall be made to each
Participant in a single lump sum payment. Notwithstanding the foregoing, unless
no successor plan is established or as otherwise permitted by Section 401(k)(10)
of the Code, no portion of a Participant's Section 401(k) Account will be
distributed prior to the Participant's death, disability, termination of
employment, attainment of age 59 1/2 or financial hardship.
20
<PAGE> 27
16.03. DISCONTINUANCE OF CONTRIBUTIONS; PARTIAL TERMINATION OF PLAN
------------------------------------------------------------
Any complete discontinuance of contributions by the Employer or partial
termination of the Plan will be treated as a termination with all affected
Participants acquiring nonforfeitable interests in amounts contributed to such
date of termination.
SECTION 17
CREDITORS OF PARTICIPANTS
-------------------------
17.01. NON-ASSIGNABILITY
-----------------
To the extent permitted by law, assignment, pledge or encumbrance of
any character of the benefits under the Plan is not permitted or recognized
under any circumstances; and such benefits shall not be subject to claims of
creditors, execution, attachment, garnishment or any other legal process.
17.02. QUALIFIED DOMESTIC RELATIONS ORDERS
-----------------------------------
Section 17.01 shall also apply to the creation, assignment or
recognition of a right to any benefit payable with respect to a Participant
pursuant to a domestic relations order, unless such order is determined to be a
qualified domestic relations order as defined in Code Section 414(p), or any
domestic relations order entered before January 1, 1985. In addition to the
methods of benefits payment otherwise provided under the Plan, a qualified
domestic relations order may provide for an immediate lump sum distribution to
the alternate payee named therein upon the determination by the Plan
Administrator that the order constitutes a qualified domestic relations order.
17.03. LOANS TO PARTICIPANTS
---------------------
(a) PERMISSIBILITY OF LOANS. Any Participant may borrow funds
from his Account pursuant to a loan program established by the Trustee and
administered by the Plan Administrator. Any loan granted under such program
shall be deemed an investment of the Account of the Participant to whom the loan
is made. All loans to Participants from the Plan must comply with the provisions
of paragraphs (b) and (c) of this section.
(b) CODE SECTION 72(p) LIMITATIONS. No loan to any Participant
can be made to the extent that such loan when added to the outstanding balance
of all other loans to the Participant would exceed the lesser of (i) $50,000
reduced by the excess (if any) of the highest outstanding balance of loans
during the one-year period ending on the day before the loan is made, over the
outstanding balance of loans from the Plan on the date the loan is made; or (ii)
one-half the present value of the vested Account balance of the Participant. For
the purpose of the above limitation, all loans from all plans of the Employer
and other members of a group of employers described in Code Sections 414(b),
414(c), 414(m) and 414(o) are aggregated. Furthermore, any loan shall by its
terms require that repayment (principal and interest) be amortized in level
payments, not less frequently than quarterly, over a period not extending beyond
five years from the date of the loan, unless such loan is used to
21
<PAGE> 28
acquire a dwelling unit which within a reasonable time (determined at the time
the loan is made) will be used as the principal residence of the Participant. An
assignment or pledge of any portion of the Participant's interest in the Plan
and a loan, pledge or assignment with respect to any insurance contract
purchased under the Plan will be treated as a loan under this section. The
foregoing loan provisions will be effective for loans made, renewed,
renegotiated, modified or extended after December 31, 1986 except that a loan
made or renewed on or before October 18, 1989, may be for an amount up to
$10,000 even if such amount exceeded one-half of the Participant's vested
Account balance.
(c) ADDITIONAL REQUIREMENTS. All loans made under this Plan
shall, in accordance with Code Section 4975(d)(1), comply with the following
requirements:
(i) Loans shall be made available to all
Participants on a reasonably equivalent
basis.
(ii) Loans shall not be made available to
Highly-Compensated Employees in an amount
greater than the amount made available to
other Employees.
(iii) Each Participant shall apply for a loan by
filing a written application with the Plan
Administrator stating, at least, the amount
required to be borrowed and the reason for
such loan.
(iv) The Plan Administrator shall review each
application and shall apply criteria
established in a nondiscriminatory manner to
determine whether to approve any loan to any
Participant. Such criteria shall include,
but not be limited to, the credit worthiness
of the Participant, the amount of the loan
requested, the security for such loan and
the reason stated by the Participant for the
need for such loan.
(v) Loans must be adequately secured and bear a
reasonable interest rate. For this purpose,
a Participant's vested Account shall
constitute sufficient collateral for a loan,
provided that at no time may more than 50%
of such vested Account be used as security
for all outstanding loans made to the
Participant under the Plan, determined
immediately after the most recent loan is
extended. A reasonable interest rate shall
be determined for each loan by the Plan
Administrator based upon prevailing interest
rates for similar loans in the surrounding
business community in which the Plan is
administered.
(vi) Default on a loan shall exist upon the
occurrence of any event enumerated as an
"Event of Default" in the promissory note or
security agreement executed by the
Participant. In the event of default,
foreclosure on the note and attachment of
the portion of the
22
<PAGE> 29
Participant's Account provided as security
will occur upon a distributable event under
the Plan.
SECTION 18
CLAIMS PROCEDURES
-----------------
18.01. FILING A CLAIM FOR BENEFITS
---------------------------
A Participant or Beneficiary or the Employer acting on behalf of such
Participant or Beneficiary shall notify the Plan Administrator of a claim for
benefits under the Plan. Such request shall be in writing to the Plan
Administrator and shall set forth the basis of such claim and shall authorize
the Plan Administrator to conduct such examinations as may be necessary for the
Plan Administrator to determine, in its discretion, the validity of the claim
and to take such steps as may be necessary to facilitate the payment of benefits
to which the Participant or Beneficiary may be entitled under the terms of the
Plan.
A decision by the Plan Administrator shall be made promptly and not
later than 90 days after the Plan Administrator's receipt of the claim for
benefits under the Plan, unless special circumstances require an extension of
the time for processing; in which case, a decision shall be rendered as soon as
possible, but not later than 180 days after the initial receipt of the claim for
benefits.
18.02. DENIAL OF CLAIM
---------------
Whenever a claim for benefits by any Participant or Beneficiary has
been denied by the Plan Administrator, a written notice prepared in a manner
calculated to be understood by the Participant or Beneficiary must be provided
setting forth:
(a) the specific reasons for the denial;
(b) the specific reference to the pertinent Plan provisions on
which the denial is based;
(c) a description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of why such
material or information is necessary; and
(d) an explanation of the Plan's claim review procedure.
18.03. REMEDIES AVAILABLE TO PARTICIPANTS
----------------------------------
Upon denial of his claim by the Plan Administrator, a Participant or
Beneficiary:
(a) may request a review by a named fiduciary, other than the
Plan Administrator, upon written application to the Plan;
23
<PAGE> 30
(b) may review pertinent Plan documents; and
(c) may submit issues and comments in writing to a named
fiduciary.
A Participant or Beneficiary shall have 60 days after receipt by the
claimant of written notification of a denial of a claim to request a review of a
denied claim.
A decision by a named fiduciary shall be made promptly and not later
than 60 days after the named fiduciary's receipt of a request for review, unless
special circumstances require an extension of the time for processing; in which
case, a decision shall be rendered as soon as possible, but not later than 120
days after receipt of a request for review. The decision on review by a named
fiduciary shall be in writing and shall include specific reasons for the
decision, written in a manner calculated to be understood by the claimant, and
specific references to the pertinent Plan provisions on which the decision is
based.
SECTION 19
TOP HEAVY RULES
---------------
19.01. DEFINITIONS
-----------
If the Plan is or becomes top heavy in any Plan Year, with respect to
such Plan Year, the provisions of this Section 19 will supersede any conflicting
provisions in the Plan. The following definitions and rules are necessary to
comply with related federal tax requirements:
(a) Key Employee: Any Employee or former Employee (and the
Beneficiaries of such Employee) who at any time during the determination period
was (i) an officer of the Employer if such individual's annual compensation
exceeds 50% of the dollar limitation under Code Section 415(b)(1)(A); (ii) an
owner (or considered an owner under Code Section 318) of one of the ten largest
interests in the Employer if such individual's annual compensation exceeds the
dollar limitation under Code Section 415(c)(1)(A); (iii) a 5% owner of the
Employer; or (iv) a 1% owner of the Employer who has annual compensation of more
than $150,000. For purposes of this section, annual compensation means
compensation as defined in Code Section 415(c)(3), but including amounts
contributed by the Employer pursuant to a salary reduction agreement which are
excludable from the Employee's gross income under Code Section 125, 402(a)(8),
402(h) or 403(b). The determination period is the Plan Year containing the
Determination Date and the four preceding Plan Years. The determination of who
is a Key Employee will be made in accordance with Code Section 416(i)(1) and the
regulations thereunder.
(b) Non-Key Employee: Any Employee or former Employee of the
Employer who is not a Key Employee. The Beneficiary of a Non-Key Employee will
be treated as a Non-Key Employee, and the Beneficiary of a former Non-Key
Employee will be treated as a former Non-Key Employee.
24
<PAGE> 31
(c) Determination Date: For any Plan Year subsequent to the
first Plan Year, the last day of the preceding Plan Year. For the first Plan
Year, the last day of such Plan Year.
(d) Permissive Aggregation Group: The Required Aggregation
Group of plans plus any other plan or plans of the Employer which, when
considered as a group with the Required Aggregation Group, would continue to
satisfy the requirements of Code Sections 401(a)(4) and 410.
(e) Required Aggregation Group: (i) Each qualified plan of the
Employer in which at least one Key Employee participates or participated at any
time during the determination period (regardless of whether the Plan has
terminated); and (ii) any other qualified plan of the Employer which enables a
plan described in (i) to meet the requirements of Code Sections 401(a)(4) or
410.
(f) Top-Heavy Plan: The Plan, if it meets the requirements of
Section 19.02.
19.02. TOP HEAVY STATUS
----------------
This Plan, and any other plans aggregated with it, will become top
heavy pursuant to this Section 19.02, as of the Determination Date, if the
present value of accrued benefits for Key Employees is more than 60% (90% in the
case of "super top heavy") of the sum of the present value of accrued benefits
of all Employees, excluding former Key Employees. In the case of more than one
plan which is to be aggregated, the present value of the accrued benefits
(including distributions for Key Employees and all Employees) is first
determined separately for each plan as of each plan's determination date. The
plans then will be aggregated by adding the results of each plan as of the
determination dates for such plans that fall within the same calendar year. The
combined results will indicate whether the plans are top heavy.
The account balances and accrued benefits of a Participant who
has not performed services for the Employer maintaining the Plan during the
five-year period ending on the Determination Date will be disregarded.
The present value of accrued benefits as of the Determination Date for
any individual is the sum of (a) the Account balance as of the most recent
Valuation Date occurring within a 12-month period ending on the Determination
Date; (b) an adjustment for contributions due as of the Determination Date; and
(c) the aggregate distributions made with respect to such individual under the
Plan during the five-year period ending on the Determination Date. For a profit
sharing plan, the adjustment in (b) is generally the amount of contributions
actually made after the Valuation Date but on or before the Determination Date.
In determining whether the Plan is top heavy, it must be aggregated
with each plan included in the Required Aggregation Group. In addition, the
Employer may aggregate plans included in the Permissive Aggregation Group.
25
<PAGE> 32
19.03. MINIMUM CONTRIBUTIONS
---------------------
For each Plan Year in which the Plan is top heavy, each Participant who
is a Non-Key Employee employed on the last day of the Plan Year (including those
Participants who did not complete 1,000 Hours of Service in the Plan Year) must
receive an annual allocation of contributions (disregarding Social Security
benefits) equal to at least 3% of his Compensation; provided that, if the
largest percentage of Compensation allocated to a Key Employee for a Plan Year
is less than 3%, that largest percentage will be substituted for 3%. For any
year in which the Employer maintains a defined benefit plan in addition to this
Plan, the requirements of this paragraph will be satisfied by providing each
Non-Key Employee with the 2% minimum annual benefit provided under the top heavy
provisions of the defined benefit plan. For any year in which the Employer
maintains another defined contribution plan in addition to this Plan, the
minimum benefit described in this paragraph shall be provided by such other
defined contribution plan.
SECTION 20
MISCELLANEOUS
-------------
20.01. EMPLOYER'S RIGHT TO TERMINATE EMPLOYEES
---------------------------------------
The right of the Employer to terminate the employment of any of its
Employees shall not in any way be affected by an Employee's participation in
this Plan.
20.02. GENDER AND NUMBER
-----------------
Wherever used in this Plan, a masculine pronoun shall refer to both the
masculine and feminine; and a singular pronoun shall refer to both singular and
plural, unless the context clearly requires otherwise.
20.03. MERGER OR CONSOLIDATION
-----------------------
In case of any merger or consolidation with, or transfer of assets or
liabilities to, any other plan, each Participant in the Plan would (if this Plan
then terminated) receive a benefit immediately after the merger, consolidation
or transfer which is equal to, or greater than, the benefit he would have been
entitled to receive immediately before the merger, consolidation or transfer (if
the Plan then terminated).
20.04. NAMED FIDUCIARIES
-----------------
The named fiduciaries of this Plan shall be the Plan Administrator, the
Trustee and the Employer.
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<PAGE> 33
20.05. LIMITATIONS ON PAYMENT
----------------------
No payment shall be made to any incompetent person (through minority or
otherwise) until the Plan Administrator shall have been furnished evidence
satisfactory to it of the person to whom such payment shall be made and his
right to receive the same. Until furnished such evidence, all amounts so payable
shall be held in trust for the person or persons entitled to receive them,
separate and apart from the Plan's general Trust Fund.
20.06. LIMITATION ON REVERSION OF CONTRIBUTIONS
----------------------------------------
Except as provided in paragraphs (a) through (c) below, Employer
contributions made under the Plan shall be held for the exclusive benefit of
Participants and their Beneficiaries and may not revert to the Employer.
(a) In the case of a contribution made by the Employer based
upon a mistake of fact, such contribution may be returned to the Employer within
one year after it was contributed to the Plan.
(b) In the case of a contribution conditioned on the Plan's
qualification under Code Section 401(a), if the Plan fails to qualify initially,
such contribution may be returned to the Employer within one year after the date
the Plan's qualification is denied, but only if the application for the
qualification is made by the time prescribed by law for filing the Employer's
return for the taxable year in which the Plan is adopted, or such later date as
the Secretary of the Treasury may prescribe.
(c) In the case of a contribution conditioned upon its
deductibility under Code Section 404, to the extent the deduction is disallowed,
the amount disallowed may be returned to the Employer within one year after the
disallowance.
20.07. NOTICE REQUIREMENTS
-------------------
In the case of a Qualified Joint and Survivor Annuity, the
Plan Administrator shall, no less than 30 days and no more than 90 days prior to
the Annuity Starting Date, provide each Participant a written explanation of (i)
the terms and conditions of a Qualified Joint and Survivor Annuity; (ii) the
Participant's right to make and the effect of an election to waive the Qualified
Joint and Survivor Annuity form of benefit; (iii) the rights of a Participant's
Spouse; and (iv) the right to make and the effect of a revocation of a previous
election to waive the Qualified Joint and Survivor Annuity.
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<PAGE> 34
SECTION 21
DEFINITIONS
-----------
Whenever used herein, the following words and phrases shall have the
meaning specified below. Additional words and phrases may be defined in the text
of the Plan.
"ACCOUNT" means a Participant's Profit Sharing Account, Matching
Account, Section 401(k) Account and Rollover Account. "Account" means the
aggregate of such Accounts.
"ADJUSTMENT FACTOR" means the cost-of-living adjustment prescribed by
the Secretary of the Treasury under Code Section 415(d) for years beginning
after December 31, 1987, as applied to such items and in such manner as the
Secretary shall provide.
"AFFILIATE" means any other employer which, together with the Employer,
is a member of: (a) a controlled group of corporations or of a commonly
controlled trade or business as defined in Code Sections 414(b) and (c) and as
modified by Code Section 415(h); (b) an affiliated service group as defined in
Code Section 414(m); or (c) any other organization described in Code Section
414(o).
"ANNUAL ADDITIONS" means the sum of the following amounts credited to a
Participant's Account for the Limitation Year under all defined contribution
plans maintained by the Employer:
(a) Employer contributions (Profit Sharing Contributions,
Matching Contributions and Section 401(k) Contributions, including excess
contributions);
(b) Forfeitures;
(c) Amounts allocated after March 31, 1984 to an individual
medical account, as defined in Code Section 415(l)(2), which is part of a
pension or annuity plan maintained by the Employer; and
(d) Amounts derived from contributions paid or accrued after
December 31, 1985 in taxable years ending after such date which are attributable
to postretirement medical benefits allocated to the separate account of a key
employee (as defined in Section 416(i) of the Code) under a welfare benefit fund
(as defined in Section 419(e) of the Code) maintained by the Employer. The
amounts described under this paragraph (e) shall not be subject to the 25% of
compensation limit provided in Section 3.01.
For purposes of the Plan, any excess amount applied to reduce Employer
contributions in the Limitation Year will be considered Annual Additions for
such Limitation Year.
"ANNUITY STARTING DATE" means the first day of the first period for
which an amount is paid as an annuity or in any other form.
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<PAGE> 35
"BENEFICIARY" means the individual, individuals or trust designated by
the Participant under the terms of Section 7 to receive the death benefit
payable under the Plan.
"CODE" means the Internal Revenue Code of 1986, as may be amended from
time to time, and corresponding provisions of future federal internal revenue
codes.
"COMPENSATION" means all compensation paid or accrued to the
Participant, including, to the extent applicable, any Earned Income; provided,
(a) effective for Plan Years beginning after December 31, 1988, compensation
paid by the Employer during any Plan Year in excess of $200,000 multiplied by
the Adjustment Factor shall be excluded; and (b) effective for Plan Years
beginning after December 31, 1993, compensation paid by the Employer during any
Plan Year in excess of $150,000, adjusted under Code Section 401(a)(17), shall
be excluded. In determining the compensation of a Participant for purposes of
the $200,000 or $150,000 limit, the family aggregation rules of Code Section
414(q)(6) will apply, except in applying such rules, the term "family" will
include only the Spouse of the Participant and any lineal descendants of the
Participant who have not attained age 19 before the close of the year. If, as a
result of the application of such rules, compensation would exceed the adjusted
$200,000 or $150,000 limitation, then (except for purposes of determining the
portion of Compensation up to the integration level if this Plan provides for
the permitted disparity) the limitation will be prorated among the affected
persons in proportion to each such person's compensation as determined under
this paragraph prior to the application of this limitation.
"CURRENT PARTICIPANT" means, with respect to any determination made
under the Plan, a Participant who is employed by the Employer on the last day of
the Plan Year as of which the determination is made or who died, retired or
became disabled during such Plan Year.
"EARLY RETIREMENT DATE" means the first day of the month coincident
with or following the date on which a Participant attains age 55
"EARNED INCOME" means the net earnings from self-employment in the
trade or business with respect to which the Plan is established, for which
personal services of the individual are a material income-producing factor. Net
earnings will be determined without regard to items not included in gross income
and the deductions allocable to such items. Net earnings are reduced by
contributions by the Employer to a qualified plan to the extent deductible under
Section 404 of the Code.
Net earnings shall be determined with regard to the deduction allowed
to the Employer by Code Section 164(f) for taxable years beginning after
December 31, 1989.
"EFFECTIVE DATE" for this amended and restated Plan means: (a) in the
case of any change in the Plan required by a change in the Code or ERISA, date
on which such change in the Plan is required to be effective; or (b) in the case
of any other change in the Plan, October 1, 1994, unless otherwise stated in the
Plan
29
<PAGE> 36
"EMPLOYEE" means any person who is an employee of the Employer or an
Affiliate, excluding a person who is a Leased Employee.
"EMPLOYER" means Winton Savings & Loan Company, and any Affiliate
which, with the consent of the Employer, adopts this Plan and joins in the Trust
Agreement.
"EMPLOYMENT COMMENCEMENT DATE" means the date on which the Employee
first performs an Hour of Service for the Employer.
"ENROLLMENT DESIGNATION" means an agreement, on a form or by a method
prescribed by the Plan Administrator, between a Participant and the Employer
providing for reduction of the Participant's Compensation and the making of
Section 401(k) Contributions to the Plan.
"FAMILY MEMBER" means, with respect to any individual, such
individual's Spouse and lineal ascendants or descendants and the spouses of such
lineal ascendants or descendants.
"FULL TIME" means employment with the Employer for not less than 500
hours during the 12 consecutive calendar months for which a determination is
made.
"HIGHLY-COMPENSATED EMPLOYEE" means a highly-compensated active
employee and a highly-compensated former employee. A highly-compensated active
employee includes any Employee who performs service for the Employer during the
determination year and who, during the look-back year (a) received compensation
from the Employer in excess of $75,000 multiplied by the Adjustment Factor; (b)
received compensation from the Employer in excess of $50,000 multiplied by the
Adjustment Factor and was a member of the top-paid group for such year; or (c)
was an officer of the Employer and received compensation during such year that
is greater than 50% of the dollar limitation in effect under Code Section
415(b)(1)(A).
The term Highly-Compensated Employee also includes: (a) Employees who
are both described in the preceding paragraph if the term "determination year"
is substituted for the term "look-back year" and the Employee is one of the 100
Employees who received the most compensation from the Employer during the
determination year; and (b) Employees who are 5% owners at any time during the
look-back year or determination year. If no officer has satisfied the
compensation requirement of (c) in the preceding paragraph during either a
determination year or look-back year, the highest paid officer for such year
shall be treated as a Highly-Compensated Employee. For this purpose, the
determination year shall be the Plan Year. The look-back year shall be the
12-month period immediately preceding the determination year.
A highly-compensated former employee includes any Employee who
separated from service (or was deemed to have separated) prior to the
determination year, performs no service for the Employer during the
determination year and was a highly-compensated active employee for either the
separation year or any determination year ending on or after the Employee's 55th
birthday. A separation year is the determination year the Employee separates
from service. If an Employee is, during a determination year or look-back year,
a Family Member of either a 5% owner who is an active
30
<PAGE> 37
or former Employee or a Highly-Compensated Employee who is one of the 10 most
Highly-Compensated Employees ranked on the basis of compensation paid by the
Employer during such year, then the Family Member 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.
Notwithstanding the previous paragraph, with respect to any Employee
who separated from service prior to January 1, 1987, the Plan may provide that
such an Employee will be included as a Highly-Compensated Employee only if the
Employee was a 5% owner or received compensation in excess of $50,000 during (a)
the Employee's separation year (or the year preceding such separation year); or
(b) any year ending on or after such individual's 55th birthday (or the last
year ending before such Employee's 55th birthday).
The determination of who is a Highly-Compensated Employee, including
the determinations of the number and identity of Employees in the top-paid
group, the top 100 Employees, the number of Employees treated as officers and
the compensation that is considered, will be made in accordance with Code
Section 414(q) and the regulations thereunder.
"HOUR OF SERVICE" means:
(a) each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for the Employer or an Affiliate. These
hours shall be credited to the Employee for the computation period or periods in
which the duties are performed; and
(b) each hour for which an Employee is paid, or entitled to
payment, by the Employer or an Affiliate 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, absence for maternity or paternity reasons, jury
duty, military duty or leave of absence. No more than 501 Hours of Service shall
be credited under this paragraph for any single continuous period (whether or
not such period occurs in a single computation period). Hours under this
paragraph shall be calculated and credited pursuant to Section 2530.200b-2 of
the Department of Labor Regulations which are incorporated herein by this
reference; and
(c) each hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by the Employer or an Affiliate. The
same Hours of Service shall not be credited both under paragraph (a) or
paragraph (b), as the case may be, and under this paragraph (c). These hours
shall be credited to the computation period or periods to which the award or
agreement pertains rather than the computation period in which the award,
agreement or payment is made; and
(d) in the case of a Participant who is absent from work for
maternity or paternity reasons, such Participant shall have credited, solely for
purposes of determining whether a One-Year Break in Service has occurred for
eligibility and vesting, in the year in which the absence begins if
31
<PAGE> 38
necessary to prevent a One-Year Break in Service for such year; or in the
following year, the number of hours that would normally have been credited but
for such absence; or in any case in which such hours cannot be determined, 8
Hours of Service per day of such absence. The total number of hours treated as
Hours of Service under this paragraph shall not exceed 501 hours. For purposes
of this paragraph, an absence from work for maternity or paternity reasons means
an absence (i) by reason of pregnancy of the Participant; (ii) by reason of the
birth of a child of the Participant; (iii) by reason of the placement of a child
with the Participant in connection with the adoption of such child by such
Participant; or (iv) for purposes of caring for such child for a period
beginning immediately following such birth or placement.
"LATE RETIREMENT DATE" means the first day of the month following the
Participant's actual retirement after his Normal Retirement Date.
"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 Sections
414(n)and 414(o) of the Code) on a substantially full-time basis for a period of
at least one year and such services are of a type historically performed by
employees in the business field of the recipient employer. Contributions or
benefits provided a Leased Employee by the leasing organization which are
attributable to services performed for the recipient employer shall be treated
as provided by the recipient employer.
A Leased Employee shall not be considered an employee of the recipient
(and thus not otherwise an Employee) if (a) such employee is covered by a money
purchase pension plan providing (i) a nonintegrated employer contribution rate
of at least 10% of compensation, as defined in Code Section 415(c)(3), but
including amounts contributed by the employer pursuant to a salary reduction
agreement which are excludable from the employee's gross income under Code
Section 125, Section 402(a)(8), Section 402(h) or Section 403(b); (ii) immediate
participation; and (iii) full and immediate vesting; and (b) Leased Employees do
not constitute more than 20% of the recipient's non-highly-compensated work
force.
"LIMITATION YEAR" means the Plan Year.
"MATCHING ACCOUNT" means the portion of a Participant's Account
consisting of Matching Contributions, as adjusted under the Plan.
"MATCHING CONTRIBUTION" means the amount contributed by the Employer on
account of a Participant's Section 401(k) Contributions.
"NON-HIGHLY-COMPENSATED EMPLOYEE" means any employee of the Employer
who is not a Highly-Compensated Employee.
"NORMAL RETIREMENT AGE" means the day on which the Participant attains
age 59 1/2.
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<PAGE> 39
"NORMAL RETIREMENT DATE" means the date on which a Participant attains
his Normal Retirement Age; provided, however, that this Plan shall not be
interpreted to require that a Participant retire prior to attaining any specific
age.
"ONE-YEAR BREAK IN SERVICE" means a 12-consecutive-month period
beginning with the Employment Commencement Date or anniversary thereof during
which a Participant has not completed more than 500 Hours of Service.
"PARTICIPANT" means either (a) an Employee who is participating in the
Plan in accordance with Section 1.01 for whom an Account is being maintained; or
(b) a former Employee of the Employer for whom an Account is being maintained.
"PLAN" means the Winton Savings & Loan Company 401(k) Profit Sharing
Plan, as amended, as embodied in this Plan document and amendments made hereto
from time to time.
"PLAN ADMINISTRATOR" means James W. Brigger who shall perform the
functions described in Section 14. If James W. Brigger resigns or is terminated,
the Employer shall be the Plan Administrator until the Employer designates a
replacement.
"PLAN YEAR" means the fiscal year of the Plan which ends each September
30, provided that after January 1, 1996, "Plan Year" means the fiscal year of
the Plan which ends each December 31.
"PROFIT SHARING ACCOUNT" means the portion of a Participant's Account
consisting of Profit Sharing Contributions, as adjusted under the Plan.
"PROFIT SHARING CONTRIBUTION" means the amount contributed by the
Employer under Section 2.01 of the Plan.
"PROJECTED ANNUAL BENEFIT" means the annual benefit to which the
Participant would be entitled under all Employer sponsored defined benefit
plans, assuming that the Participant continues employment until his Normal
Retirement Date, that the Participant's Compensation continues until his Normal
Retirement Date at the rate in effect during the current calendar year and that
all other factors relevant for determining benefits under the plans remain
constant at the level in effect during the current calendar year.
"QUALIFIED ELECTION" means a waiver of a Qualified Joint and Survivor
Annuity. Any waiver of a Qualified Joint and Survivor Annuity shall not be
effective unless (a) the Participant's Spouse consents in writing to the
election; (b) the Spouse's consent acknowledges the effect of the election; and
(c) the Spouse's consent is witnessed by a Plan representative or notary public.
Additionally, a Participant's waiver of the Qualified Joint and Survivor Annuity
shall not be effective unless the election designates a form of benefit payment
which may not be changed without consent of the Spouse (or the Spouse expressly
permits designations by the Participant without any further consent of the
Spouse). If it is established to the satisfaction of a Plan representative that
there is no Spouse or that the Spouse cannot be located, a waiver will be deemed
a Qualified Election. Any consent by a Spouse obtained
33
<PAGE> 40
under this provision (or establishment that the consent of a Spouse may not be
obtained) shall be effective only with respect to such Spouse. A consent that
permits designations by the Participant without any requirement of further
consent by such Spouse must acknowledge that the Spouse has the right to limit
consent to a specific form of benefit where applicable, and that the Spouse
voluntarily elects to relinquish such rights. A revocation of a prior waiver may
be made by a Participant without the consent of the Spouse at any time before
the commencement of benefits. The number of revocations shall not be limited. No
consent obtained under this provision shall be valid unless the Participant has
received notice as provided in Section 20.07.
"QUALIFIED JOINT AND SURVIVOR ANNUITY" means an immediate annuity for
the life of the Participant with a survivor annuity for the life of the Spouse
which is equal to 50% of the amount of the annuity which is payable during the
joint lives of the Participant and the Spouse and which is determined by the
amount of benefit which can be purchased with the Participant's vested Account.
"ROLLOVER ACCOUNT" means so much of a Participant's Account as is
attributable to Rollover Contributions, as adjusted under the Plan.
"ROLLOVER CONTRIBUTION" means the amount contributed by an Employee as
a rollover contribution in accordance with Section 402 of the Code.
"SECTION 401(k) ACCOUNT" means the portion of the Account of a
Participant consisting of Section 401(k) Contributions, as adjusted under the
Plan.
"SECTION 401(k) CONTRIBUTION" means the amount contributed by the
Employer as a result of a Participant's election in an Enrollment Designation to
reduce his Compensation.
"SELF-EMPLOYED INDIVIDUAL" means an individual who has Earned Income
for the taxable year from the trade or business for which the Plan is
established and an individual who would have had Earned Income but for the fact
that the trade or business had no net profits for the taxable year.
"SPOUSE" or "SURVIVING SPOUSE" means an individual who is legally
married to the Participant, provided that an individual who was formerly married
to the Participant will be treated as the Spouse or Surviving Spouse to the
extent provided under a qualified domestic relations order, as described in Code
Section 414(p).
"TRUST" or "TRUST FUND" means the fund established pursuant to the
terms of the Trust Agreement, which fund may be comprised of one or more
investment funds.
"TRUST AGREEMENT" means the agreement by and between the Employer and
the Trustee for the management, investment and disbursement of assets held in
the Trust Fund.
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<PAGE> 41
"TRUSTEE" means the bank, trust company and/or individual(s) designated
by the Employer to hold and invest the Trust Fund and to pay benefits and
expenses in accordance with the terms and provisions of the agreement by and
between the Employer and such bank, trust company and/or individual.
"VALUATION DATE" means the last day of the Plan Year and any other date
or dates fixed by the Plan Administrator for the valuation of assets and
adjustments of Accounts.
"YEAR OF SERVICE" means a 12-month period beginning on the Employee's
Employment Commencement Date and anniversaries thereof during which he is a
Full-Time Employee.
IN WITNESS WHEREOF, the undersigned has caused this Plan to be executed
by a duly authorized individual effective as of the date first above written.
WINTON SAVINGS & LOAN COMPANY
By: /s/ James W. Brigger
----------------------------------
James W. Brigger, President
Date Executed:
---------------
35
<PAGE> 1
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P.O. BOX 2508 Employer Identification Number:
CINCINNATI, OH 45201 31-1087250
Date: February 16, 1996 DLN:
17007283000005
WINTON SAVINGS & LOAN CO.
C/O JAMES M BALL Person to Contact:
VORYS SATER SEYMOUR AND PEASE MELISSA WHELAN
55 E GAY ST PO BOX 1008
COLUMBUS, OH 43216-1008 Contact Telephone Number:
(513) 684-3866
Plan Name:
401(K) PROFIT SHARING PLAN
Plan Number: 002
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 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
August 24, 1995.
This plan has been mandatorily disaggregated, permissively aggregated,
or restructured to satisfy the nondiscrimination requirements.
<PAGE> 2
WINTON SAVINGS & LOAN CO
Page 2
This plan satisfies the nondiscrimination in amount requirements of
section 1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based
safe harbor described in the regulations.
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as otherwise specified
in this letter.
This plan satisfies the nondiscriminatory current availability
requirements of section 1.401(a)(4)-4(b) of the regulations with respect to
those benefits, rights, and features that are currently available to all
employees in the plan's coverage group. For this purpose, the plan's coverage
group consists of those employees treated as currently benefiting for purposes
of demonstrating that the plan satisfies the minimum coverage requirements of
section 410(b) of the Code.
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uraguay Round
Agreements Act, Pub. L. 103-456.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
C. Ashley Bullard
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
<PAGE> 1
ACCOUNTANTS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Winton Financial Corporation on Form S-8, of our report dated
November 26, 1996, accompanying the consolidated financial statements of Winton
Financial Corporation ("WFC") included as part of the WFC 1996 Annual Report to
Shareholders filed as Exhibit 20 to the WFC Annual Report on Form 10-KSB for the
fiscal year ended September 30, 1996.
Grant Thornton LLP
Cincinnati, Ohio
December 9, 1997
