BOK Financial Thrift Plan
for Hourly Employees
This document constitutes part of a Section 10(a) Prospectus covering the
securities that have been registered under the Securities Act of 1933. The
documents constituting the Section 10(a) Prospectus are held in a file
maintained by the Benefits Department of Human Resources and may reviewed or
obtained, without charge, upon written or oral request made to the Compensation
Department of Human Resources of Bank of Oklahoma, National Association, P.O.
Box 2300, Tulsa, Oklahoma 74192, telephone number (918) 588-6277.
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Contents
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Article 1. The Plan 1
1.1 Establishment of the Plan 1
1.2 Applicability of the Plan 1
1.3 Purpose of the Plan 1
Article 2. Definitions 2
2.1 Definitions 2
2.2 Gender and Number 6
Article 3. Participation and Service 7
3.1 Commencement of Active Participation 7
3.2 Participation Status; Membership; Reemployment 7
3.3 Discretionary Contributions Eligibility Requirements 8
3.4 Years of Service 8
3.5 Special Provisions for Participants Who Enter the Armed Forces 11
3.6 Leased Employees 11
3.7 Plan to-Plan Transfers 11
Article 4. Plan Contributions 13
4.1 Types of Contributions 13
4.2 Before-Tax Contributions 13
4.3 After-Tax Contributions 13
4.4 BenePay Contributions 14
4.5 Matching Contributions 14
4.6 Discretionary Employer Contributions 15
4.7 Discretionary Stock Contributions 15
4.8 Qualified Nonelective Contributions 15
4.9 Rollover Contributions 16
4.10 Limitations on Contributions 17
4.11 Elections Relating to Contributions 17
4.12 Payment of Contributions 19
4.13 Forfeitures 19
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Article 5. Accounts; Allocation and Adjustments to Accounts 20
5.1 Accounts of Members 20
5.2 Adjustment of Accounts; Valuation of Trust Fund 21
5.3 Account Statements 21
5.4 Transactions in BOK Financial Corporation Common Stock 21
5.5 Voting Rights in BOK Financial Corporation Common Stock 21
5.6 Tender Offers for BOK Financial Corporation Common Stock 22
Article 6. Vesting in Accounts 23
6.1 Fully Vested Accounts 23
6.2 Vesting 23
Article 7. Distributions; Loans; Withdrawals 24
7.1 Distributions Upon Termination of Employment 24
7.2 Method of Distribution 24
7.3 Timing of Distribution 24
7.4 Required and Minimum Distribution Rules 25
7.5 Forfeitures 25
7.6 Loans 26
7.7 In-Service Withdrawals 28
7.8 Withholding Taxes 31
7.9 Direct Rollover Option 31
7.10 Distribution on Sale of Subsidiary/Assets 34
Article 8. Limitations 35
8.1 Limitations on Before-Tax Contributions 35
8.2 Limitations on After-Tax Contributions and Matching Contributions 37
8.3 Combination of Limitations; Multiple Use 39
8.4 Limitations on Annual Account Additions 39
Article 9. Investment of Accounts 42
9.1 Investments 42
9.2 Investment Funds 42
9.3 Investment Elections for Contributions 43
9.4 Investment Transfers 44
9.5 Rules of Plan Administrator 44
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Article 10. Administration and Fiduciary Responsibilities 45
10.1 Duties and Powers of Plan Administrator 45
10.2 Duties and Powers of Administrative Committee 46
10.3 Membership 46
10.4 Voting 47
10.5 Compensation and Bonding 47
10.6 Employer to Furnish Information 47
10.7 Records 47
10.8 Allocation of Fiduciary Responsibilities 47
10.9 Payment of Expenses 48
10.10 Filing a Claim for Benefits 48
10.11 Appeals from Denial of Claims 48
10.12 Indemnity for Liability 49
10.13 Conflicts 49
10.14 Reliance on Information 49
10.15 Beneficiary Designation 49
10.16 Incompetency 50
10.17 Information and Data for Benefits 51
10.18 Missing Members or Beneficiaries 51
10.19 No Enlargement of Employee Rights 51
10.20 Applicable Law 51
10.21 Internal Revenue Service Approval 51
10.22 Severability 52
Article 11. Trust Fund and Trustee 53
11.1 Establishment of Trust Fund 53
11.2 Trustee 53
11.3 Rights in the Trust Fund 53
11.4 Nonreversion; Exclusive Benefit 53
11.5 Nonalienation 54
11.6 Merger, Consolidation or Transfer 54
Article 12. Amendment and Termination 55
12.1 Amendment and Termination 55
12.2 Limitations on Amendments 55
12.3 Effect of Bankruptcy and Other Contingencies Affecting an Employer 56
12.4 Distributions on Plan Termination 56
Article 13. Participation In and Withdrawal 57
13.1 Participation in the Plan 57
13.2 Withdrawal from the Plan 57
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Article 14. Top-Heavy Provisions 58
14.1 Application of Top-Heavy Provisions 58
14.2 Definitions 58
14.3 Minimum Contribution 60
14.4 Limit on Annual Additions: Combined Plan Limit 60
14.5 Top Heavy Vesting 61
14.6 Collective Bargaining Agreements 61
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Article 1. The Plan
1.1 Establishment of the Plan
Bank of Oklahoma, N.A. ("Sponsor") hereby established the BOK Financial Thrift
Plan for Hourly Employees, effective as of January 1, 1999, for the benefit of
its Eligible Employees and the Eligible Employees of other participating
Employers. The Plan is intended to qualify as a profit sharing plan under
section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code")
with a qualified cash or deferred arrangement under Code section 401(k). In
accordance with Code section 401(a)(27), the determination of the Plan as a
qualified profit sharing plan shall be made without regard to whether any
participating Employer has current or accumulated profits.
1.2 Applicability of the Plan
The provisions of the Plan as set forth herein are generally applicable only to
Employees in the employ of an Employer on or after January 1, 1999.
1.3 Purpose of the Plan
The purpose of the Plan is to provide Eligible Employees with a means of
accumulating capital on a regular and long term basis for their retirement
income needs.
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Article 2. Definitions
2.1 Definitions
Whenever used in the Plan, the following words and phrases shall have the
respective meanings stated below unless a different meaning is plainly required
by the context, and when the defined meaning is intended, such term is
capitalized.
(a) "Account" means the separate account maintained for each Member pursuant to
Section 5.1 for the purpose of accounting for the beneficial interest of
the Member in the Trust Fund as of any relevant date, which Account shall
consist of the following subaccounts, and other subaccounts as may be
applicable to the Member, as provided in Section 5.1, and where the context
indicates, the term "Account" means an individual subaccount:
(1) "Before-Tax Contributions Account";
(2) "After-Tax Contributions Account";
(3) "BenePay Contributions Account";
(4) "Matching Contributions Account";
(5) "Discretionary Employer Contributions Account";
(6) "Discretionary Stock Contributions Account";
(7) "Qualified Nonelective Contributions Account"; and
(8) "Rollover Contributions Account".
(b) "Administrative Committee" means the committee designated pursuant to
Section 10.2 which has the powers assigned to it under such section.
(c) "Affiliate" means-
(1) Any corporation other than the Sponsor, i.e., either a subsidiary
corporation or an affiliated or associated corporation of the Sponsor,
which together with the Sponsor is a member of a "controlled group" of
corporations (as defined in Code section 414(b));
(2) Any organization which together with the Sponsor is under "common
control" (as defined in Code section 414(c));
(3) Any organization which together with the Sponsor is an "affiliated
service group" (as defined in Code section 414(m)); or
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(4) Any organization required to be aggregated with the Sponsor pursuant
to Code section 414(o).
(d) "Beneficiary" means the person or persons designated by a Member pursuant
to Section 10.15.
(e) "Board of Directors" means the Board of Directors of the Sponsor.
(f) "Code" means the Internal Revenue Code of 1986 and the regulations issued
thereunder, as amended from time to time.
(g) "Compensation" means a Participant's pay, determined as follows:
(1) For all purposes under the Plan, except as otherwise specified,
Compensation means the Participant's base salary received from an
Employer while an Employee, including shift differential pay and
commissions paid to the Employee by the Employer during the Plan Year,
but excluding overtime, incentive pay, annual management bonuses,
taxable fringe benefits, and other forms of special remuneration. For
purposes of this Section 2.1(g)(1), Compensation shall be increased by
amounts excluded from compensation by reason of an Employee's election
to reduce compensation in lieu of benefits under a cash or deferred
arrangement under Code section 401(k) or under a cafeteria plan under
Code section 125.
(2) For purposes of satisfying the limitations described in Article 8, for
purposes of determining if an individual is a Highly Compensated
Employee, and for purposes of Article 14, Compensation means a
Participant's wages received from an Employer or other Affiliate as
defined in Code section 3401(a) for purposes of income tax withholding
at the source but determined without regard to any rules that limit
the remuneration included in wages based on the nature or location of
the employment or the services performed, increased by amounts
excluded from wages by reason of an Employee's election to reduce
wages in lieu of benefits under a cafeteria plan under Code section
125 or a cash or deferred arrangement under Code section 401(k);
provided, however, that in lieu of the definition of Compensation set
forth in this paragraph (2), the Plan Administrator may elect any
alternative definition of Compensation permitted under Treasury
regulations for purposes of applying the limitations described in
Article 8.
(3) The Compensation of each Employee that may be taken into account under
the Plan shall not exceed the first $160,000 of an Employee's
Compensation (as adjusted by the Secretary of Treasury under Code
section 401(a)(17)).
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(h) "Contributions" under the Plan include-
(1) "Before-Tax Contributions" made by the Employer on behalf of a
Participant, as described in Section 4.2.
(2) "After-Tax Contributions" made by a Participant as described in
Section 4.3.
(3) "Matching Contributions" made by the Employer on behalf of a
Participant, as described in Section 4.5.
(4) "Discretionary Employer Contributions" made by the Employer on behalf
of Eligible Employees, as described in Section 4.6.
(5) "Discretionary Stock Contributions" made by the Employer on behalf of
Eligible Employees, as described in Section 4.7.
(6) "Qualified Nonelective Contributions" made by the Employer on behalf
of Eligible Employees as described in Section 4.8.
(7) "Rollover Contributions" made by a Participant or Eligible Employee,
as described in Section 4.9.
(i) "Disability" means a physical or mental condition which entitles the
Employee to begin to receive benefits under his Employer's long-term
disability plan.
(j) "Entry Date" means each January 1, April 1, July 1 and October 1.
(k) "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
(l) "Effective Date" means January 1, 1999.
(m) "Eligible Employee" means an Employee of an Employer who is compensated on
an hourly basis, other than an Employee covered by a collective bargaining
agreement between Employee representatives and the Employer, unless the
agreement provides for coverage under the Plan. The term "Eligible
Employee" shall also not include any person who performs services for an
Employer under any agreement or arrangement (which may be written, oral
and/or evidenced by the Employer's payroll practices) with the individual
or with another organization that provides the services of the individual
to the Employer, pursuant to which the person is treated as an independent
contractor or is otherwise treated as an employee of an entity other than
the Employer, irrespective of whether the individual is treated as an
employee of the Employer under common law employment principles or pursuant
to the provisions of Code sections 414(m), 414(n) or 414(o).
(n) "Employee" means any person who is employed by an Employer or an Affiliate.
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(o) "Employer" means the Sponsor (and any successor to the Sponsor) and each
other Affiliate that adopts the Plan.
(p) "Highly Compensated Employee" means a highly compensated active Employee
and a highly compensated former Employee. A highly compensated active
Employee means any Employee who (1) was a 5 percent owner (as defined in
Code section 416(i)(1)) at any time during the current or preceding year,
or (2) during the previous year, received Compensation from the Employers
and Affiliates in excess of $80,000 (as adjusted by the Secretary of
Treasury under Code section 415(d)). A former Employee shall be treated as
a Highly Compensated Employee if (1) such Employee was a Highly Compensated
Employee when such Employee separated from service, or (2) such Employee
was a Highly Compensated Employee at any time after attaining age 55. The
determination of who is a Highly Compensated Employee shall be made in
accordance with Code section 414(q) and the regulations thereunder.
(q) "Investment Fund or Fund" means each investment fund established from time
to time by the Plan Administrator for the investment of funds credited to
Members' Accounts, as provided in Section 9.2.
(r) "Member" means an Active Participant, Inactive Participant, or Former
Participant (as such terms are defined in Section 3.2 who has a balance
credited to his Account under the Plan. Where the context indicates, the
term "Member" shall also mean the Beneficiary of a Member.
(s) "Participant" means an Eligible Employee who is eligible to be and becomes
a Participant as provided in Article 3.
(t) "Plan" means the "BOK Financial Thrift Plan for Hourly Employees" as
provided herein and as amended from time to time.
(u) "Plan Administrator" means Bank of Oklahoma, N.A.
(v) "Plan Year" means a period of 12 consecutive months beginning January 1 of
each year and ending on December 31.
(w) "Sponsor" means Bank of Oklahoma, N.A. and any successor thereto.
(x) "Trust Agreement" means any agreement establishing a trust, which forms
part of the Plan, to receive, hold, invest, and dispose of the Trust Fund.
(y) "Trustee" means the corporation or individual or individuals acting as
Trustee under the Trust Agreement at any time of reference.
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(z) "Trust Fund," or "Trust" means all the trust assets which are held by the
Trustee under the Trust Agreement for the purposes of this Plan.
(aa) "Years of Service" means the service of an Employee used for determining
eligibility to participate, vesting in Matching Contributions, and the
applicable matching contribution percentage.
2.2 Gender and Number
Wherever applicable, the masculine pronoun as used herein shall be deemed to
include the feminine pronoun, and the singular shall be deemed to include the
plural.
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Article 3. Participation and Service
3.1 Commencement of Active Participation
An Eligible Employee may commence participation as an "Active Participant" under
the Plan on the Entry Date coincident with or next following the later to occur
of-
(a) the Effective Date;
(b) the date on which he is employed as an Eligible Employee;
(c) the date on which he is credited with at least one Year of Service; or
(d) the date he attains his 21st birthday
by filing an election to make Before-Tax Contributions or After-Tax
Contributions as provided in Section 4.11 effective as of such Entry Date. An
Eligible Employee who does not elect to make Before-Tax Contributions or
After-Tax Contributions effective as of the Entry Date described in the
preceding sentence may thereafter commence participation as an Active
Participant as of the first day of any month by filing an election to commence
Before-Tax Contributions or After-Tax Contributions as provided in Section 4.11.
3.2 Participation Status; Membership; Reemployment
A Participant shall either be an "Active Participant," an "Inactive
Participant," or "Former Participant" under the Plan. An Eligible Employee who
has become an Active Participant under the Plan, as provided in Section 3.1,
shall continue his status as an Active Participant so long as he remains
employed as an Eligible Employee and he is making Before-Tax Contributions or
After-Tax Contributions. An Employee who has become an Active Participant under
the Plan, as provided in Section 3.1, shall be an Inactive Participant during
any period when he is employed as an Employee, he has a balance credited to his
Account and he is not making Before-Tax Contributions or After-Tax Contributions
under the Plan. Such an Inactive Participant shall resume the status of an
Active Participant at the time he resumes making such Contributions while
employed as an Eligible Employee.
An Eligible Employee who has received a Discretionary Employer Contribution
allocation or who has made a Rollover Contribution, but who has not become an
Active Participant, shall be an Inactive Participant and shall continue such
status as an Inactive Participant so long as he remains employed as an Employee
and he has a balance credited to his Account, or until he becomes an Active
Participant.
An Active Participant or Inactive Participant who ceases employment as an
Employee shall become a "Former Participant". A Former Participant shall
immediately become an Inactive Participant upon his reemployment as an Employee
(if he still has a balance credited to his Account), and shall become an Active
Participant upon his reemployment as an Eligible Employee and his resumption of
Before-Tax Contributions or After-Tax Contributions. As provided in Section
2.1(r) an individual shall be classified as a "Member" under the Plan so long as
he is an Active Participant, Inactive Participant or Former Participant, and he
has a balance credited to his Account under the Plan.
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3.3 Discretionary Contributions Eligibility Requirements
An Eligible Employee shall be eligible to receive a Discretionary Employer
Contribution (as provided in Section 4.6) if the Eligible Employee has completed
one Year of Service and attained age 21.
An Eligible Employee shall be eligible to receive a Discretionary Stock
Contribution (as provided in Section 4.7) only if he meets the requirements of
subsections (a) and (b) of this Section 3.3:
(a) the Eligible Employee has-
(1) completed one Year of Service, and
(2) attained age 21; and
(b) the Eligible Employee-
(1) was an Eligible Employee for the entire Plan Year prior to the Plan Year to
which such Discretionary Stock Contribution relates, and
(2) is employed as an Eligible Employee on the date that such Discretionary
Stock Contribution is made.
3.4 Years of Service
An Employee shall be credited with Years of Service in accordance with the
following provisions:
(a) An Employee shall receive credit for a Year of Service, for purposes of
determining eligibility to participate pursuant to Section 3.1(c), for the
12-month period beginning on the Employee's Employment Commencement Date
and ending on the first anniversary thereof, if the Employee completes
1,000 or more Hours of Service during such period. If an Employee fails to
complete 1,000 or more Hours of Service during such period, the Employee
shall receive credit, for purposes of eligibility to participate, for any
Plan Year beginning after the Employee's Employment Commencement Date,
during which the Employee completes 1,000 or more Hours of Service.
(b) An Employee shall receive credit for a Year of Service, for purposes of
vesting pursuant to Section 6.2(a) and for purposes of determining a
Participant's applicable matching contribution percentage pursuant to
Section 4.5(b), as follows:
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(1) for employment prior to January 1, 1995, an Employee shall receive
credit for a Year of Service for any consecutive 12-month period
beginning on the Employee's Employment Commencement Date or
anniversaries thereof during which he or she- completes at least 1,000
Hours of Service, and
(2) for employment on and after January 1, 1995, an Employee shall receive
credit for a Year of Service for any Plan Year during which he
completes at least 1,000 Hours of Service, and
(3) with respect to any Employee who was employed in 1994 and did not
complete 1,000 Hours of Service in the computation period commencing
in the 1994 calendar year, such Employee shall receive credit for a
Year of Service (in addition to a Year of Service credited under
paragraph (2) above) if he is credited with 1,000 Hours of Service
during the full 12-month computation period (as determined under
paragraph (1) above) commencing in the 1994 calendar year.
(c) Years of Service shall also include any years of service credited for a
period of employment by a corporation which is acquired (through a stock
purchase, an asset purchase, a merger, or otherwise) by an Employer to the
extent the Plan Administrator, in its discretion, determines that such
employment shall be included as Years of Service and provided such credit
is given on a uniform and nondiscriminatory basis with respect to all
Employees of such corporation.
(d) If an Employee who incurs a One-Year Break in Service is subsequently
reemployed by an Employer or non-participating Affiliate, the Years of
Service the Employee had prior to such One-Year Break in Service shall be
reinstated upon the Employee's reemployment.
(e) In determining an Employee's Years of Service pursuant to this Section 3.4
the following terms shall apply:
(1) "Employment Commencement Date" means the first day on which an
Employee first performs an Hour of Service for an Employer or
Affiliate or, if applicable, the first day following a One-Year Break
in Service on which an Employee performs an Hour of Service for an
Employer or Affiliate.
(2) "Break in Service" means the cessation of crediting Hours of Service
when the Employee-
(A) resigns;
(B) is discharged;
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(C) fails to report for work within the period required under the law
pertaining to veterans' reemployment rights after the Employee is
released from military duty with the armed forces of the Untied
States, in which case the Employee's Break in Service shall be
deemed to have occurred on the first day of the Employee's
authorized leave of absence for such military duty;
(D) is on an authorized leave of absence and fails to return to
employment, in which case the Employee's Break in Service shall
be deemed to have occurred on the first day of the Employee's
authorized leave of absence; or
(E) retires or dies.
(3) "One-Year Break in Service" means each Plan Year in which an Employee
who has a Break in Service is credited with less than 501 Hours of
Service.
(4) "Hours of Service" means the hours of service credited to an Employee
as follows:
(A) One hour for each hour for which he is paid, or entitled to
payment, by an Employer or an Affiliate for the performance of
duties during the applicable computation period for which his
Hours of Service are being determined under the Plan.
(B) One hour for each hour, in addition to the hours in Section
3.4(e)(4)(A), for which he is directly or indirectly paid, or
entitled to payment, by an Employer or an Affiliate, on account
of a period of time during which no duties are performed due to
vacation, holiday, illness, disability, layoff, jury duty,
military duty or leave of absence. Not more than 501 hours shall
be credited under this Section 3.4(e)(4)(B) on account of any
single continuous period during which he performs no duties.
(C) One hour for each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by an
Employer or an Affiliate, with no duplication of credit for
hours.
(D) An Employee shall be credited with 190 Hours of Service for each
month during which such Employee would otherwise be required to
be credited with at least one Hour of Service under the foregoing
provisions of this Section 3.4(e)(4). An Employee's Hours of
Service shall be credited in accordance with the rules of
Department of Labor regulation section 2530.200b-2(b) and (c),
which are incorporated herein by reference.
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(E) For purposes of determining whether an Employee has had a
One-Year Break in Service, an Employee who is absent from work
for reasons of an "authorized maternity or paternity leave" shall
be credited with the number of Hours of Service (not in excess of
501) equal to-
(i) the number of Hours of Service which otherwise would
normally have been credited to such Employee but for such
absence, or
(ii) in any case in which the number of Hours of Service
described in Section 3.4(e)(4)(E)(i) cannot be determined,
eight Hours of Service per day of such absence.
An absence for an "authorized maternity or paternity leave" means
an absence by reason of the pregnancy of the Employee, by reason
of the birth of a child of the Employee, by reason of the
placement of a child with the Employee in connection with the
adoption of such child by the Employee, or for purposes of caring
for such child for a period immediately following such birth or
placement. The Hours of Service described in this Section
3.4(e)(4)(E)(i) shall be credited only in the Plan Year in which
the absence from work begins if the Employee would be prevented
from incurring a Break in Service in such Plan Year solely
because of this provision or, in any other case, in the
immediately following Plan Year.
3.5 Special Provisions for Participants Who Enter the Armed Forces
If an Eligible Employee is absent from employment for voluntary or involuntary
military service with the armed forces of the United States and returns to
employment within the period required under the law pertaining to veterans'
reemployment rights, the Eligible Employee shall receive Contributions, benefits
and service credit in accordance with Code section 414(u).
3.6 Leased Employees
A person who is not an Employee and who performs services for an Employer or an
Affiliate pursuant to an agreement between the Employer or Affiliate and a
leasing organization shall be considered a "leased employee" if such person
performed the services on a substantially full time basis for a period of at
least a year and the services performed under the primary direction and control
of the Employer or Affiliate. A person who is considered a "leased employee" of
an Employer or an Affiliate shall not be considered an Employee for purposes of
the Plan. If such a person becomes a Participant as a result of subsequent
employment with an Employer, he shall receive service for his employment as a
leased employee.
<PAGE>
3.7 Plan-to-Plan Transfers
The Plan Administrator, in its discretion, shall be empowered to effect a
transfer of a Member's Account balance from this Plan to the BOK Financial
Thrift Plan for Salaried Employees, provided that (1) such Member has ceased to
be an Eligible Employee under this Plan, (2) such Member has been a participant
in the BOK Financial Thrift Plan for Salaried Employees for at least one year,
(3) the Member is 100% vested in his or her Account balance under the Plan, and
(4) the transfer satisfies the requirements of Code sections 414(l) and
411(d)(6). The Plan Administrator, in its discretion, shall be empowered to
accept a plan-to-plan transfer into this Plan from the BOK Financial Thrift Plan
for Salaried Employees, provided that (1) the Member on whose behalf the
plan-to-plan transfer is to be made has been a Participant in this Plan for at
least one year, (2) the Member is 100% vested in his or her transferred Account
balance from the BOK Financial Thrift Plan for Salaried Employees, and (3) the
transfer satisfies the requirements of Code sections 414(l) and 411(d)(6).
<PAGE>
Article 4. Plan Contributions
4.1 Types of Contributions
From and after the Effective Date, the following types of Contributions are
provided for under the Plan:
(a) Before-Tax Contributions, by the Employer on behalf of Active Participants,
as described in Section 4.2;
(b) After-Tax Contributions, by Active Participants, as described in Section
4.3;
(c) Matching Contributions, by the Employer, as described in Section 4.5;
(d) Discretionary Employer Contributions, by the Employer, as described in
Section 4.6;
(e) Discretionary Stock Contributions, by the Employer, as described in Section
4.7;
(f) Qualified Nonelective Contributions, by the Employer, as described in
Section 4.8; and
(g) Rollover Contributions, by Eligible Employees, as described in Section 4.9.
4.2 Before-Tax Contributions
An Active Participant may elect to reduce his Compensation in one percent (1%)
increments not to exceed twelve percent (12%) for any pay period for which his
election is in effect, and to have the amounts by which his Compensation is so
reduced contributed on his behalf by his Employer as Before-Tax Contributions
under the Plan. All elections with respect to Before-Tax Contributions shall be
made in accordance with the provisions of this Article 4. The Before-Tax
Contributions made on behalf of an Active Participant shall be credited and
allocated to his Before-Tax Contributions Account. The sum of the percentage of
Before-Tax Contributions elected under this Section 4.2 and the percentage of
After-Tax Contributions elected under Section 4.3 for any period shall not
exceed twenty percent (20%).
4.3 After-Tax Contributions
An Active Participant may elect to make After-Tax Contributions in one percent
(1%) increments not to exceed twelve percent (12%) for any pay period for which
his election is in effect, and to have such amounts deducted from his
Compensation and contributed on his behalf by his Employer as After-Tax
Contributions under the Plan. All elections with respect to After-Tax
Contributions shall be made in accordance with the provisions of this Article 4.
The After-Tax Contributions made on behalf of an Active Participant shall be
credited and allocated to his After-Tax Contributions Account. The sum of the
percentage of Before-Tax Contributions elected under Section 4.2 and the
percentage of After-Tax Contributions elected under this Section 4.3 for any
period shall not exceed twenty percent (20%).
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4.4 BenePay Contributions
Employees shall not be permitted to contribute to the Plan any portion of such
Employee's elected "benepay allowance" (as such term is defined in a cafeteria
plan under Code section 125).
4.5 Matching Contributions
For each Plan Year, the amount of Matching Contributions (as described in
Section 4.5(b)) determined with respect to each Employer shall be credited to
each Active Participant employed by the Employer in accordance with the
following provisions:
(a) Eligible Active Participants. As provided in Section 3.3, a Participant
shall only be an Active Participant during those periods with respect to
which he is making Before-Tax or After-Tax Contributions as an Eligible
Employee. During those periods when a Participant is an Active Participant,
he shall be eligible for a Matching Contribution, as described in Section
4.5(b).
(b) Matching Contribution Percentage. Each Active Participant described in
Section 4.5(a) shall be eligible to receive a Matching Contribution equal
to the "matching percentage" applicable to him under the "Contribution
Table" in this Section 4.5(b) times the sum of his Before-Tax and/or
After-Tax Contributions, but not to exceed five percent (5%) of the Active
Participant's Compensation for such pay period. An Active Participant's
"matching percentage" shall be determined in accordance with the following
table:
Contribution Table
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Years of Service Matching Percentage
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Less than 3 years 40%
At least 3 years but less than 7 years 60%
At least 7 years but less than 10 years 80%
10 or more years 100%
------------------------------------------- ---------------------------
The "matching percentage" applicable to an Active Participant for a Plan Year
shall be determined by reference to the number of Years of Service credited to
him as of the beginning of such Plan Year, and once determined, such "matching
percentage" shall remain unchanged for the entire Plan Year. The Matching
Contributions determined under this Section 4.5 shall be made by the Employers
participating under the Plan during the Plan Year and shall be made in cash or
in shares of BOK Financial Corporation Common Stock. The Matching Contributions
made on behalf of an Active Participant shall be credited and allocated to his
Matching Contributions Account.
<PAGE>
4.6 Discretionary Employer Contributions
For each Plan Year, each Employer, in its sole discretion, may make a
Discretionary Employer Contribution to the Plan to be allocated among all
Eligible Employees who have satisfied the Discretionary Contribution Eligibility
Requirements set forth in Section 3.3 in proportion that each such Eligible
Employee's Compensation bears to the total Compensation of all such Eligible
Employees of the Employer. The Discretionary Employer Contribution made on
behalf of an Eligible Employee shall be made in cash or in shares of BOK
Financial Corporation Common Stock and shall be credited and allocated to each
such Eligible Employee's Discretionary Employer Contributions Account.
4.7 Discretionary Stock Contributions
For each Plan Year, the Sponsor, in its sole discretion, may make a
Discretionary Stock Contribution to the Plan to be allocated among all Eligible
Employees who have satisfied the Discretionary Contribution Eligibility
Requirements set forth in Section 3.3 based upon a fixed number of shares per
Eligible Employee. The Discretionary Stock Contribution shall be made in shares
of BOK Financial Corporation Common Stock, shall be fully vested, and shall be
credited and allocated to each such Eligible Employee's Discretionary Stock
Contributions Account.
4.8 Qualified Nonelective Contributions
(a) In General. As provided in Section 8.1(c)(1) and 8.2(c)(1), the Sponsor may
elect that the Employers will make Qualified Nonelective Contributions as
defined in this Section 4.8 for any Plan Year beginning on or after the
Effective Date. Eligibility for and allocation of Qualified Nonelective
Contributions shall be determined by the Sponsor. Such Contributions shall
be taken into account in determining the actual deferral percentage as
described in Section 8.1(a) except to the extent that such amounts are
taken into account in determining the contribution percentage described in
Section 8.2(a). Any Qualified Nonelective Contributions made on behalf of
an Active Participant or an Eligible Employee shall be credited and
allocated to his Qualified Nonelective Contributions Account. An Eligible
Employee who was not a Participant shall become a Participant beginning in
the Plan Year for which Qualified Nonelective Contributions were allocated
on his behalf under the Plan.
(b) Definition. Qualified Nonelective Contributions means contributions (other
than matching contributions) made by the Employer and allocated to Eligible
Employees' Accounts that are subject to the restrictions provided in
Section 4.8(c) below.
(c) Special Requirements. Qualified Nonelective Contributions are subject to
the following additional requirements:
(1) the Participant may not elect to receive such Contributions until
distributed from the Plan;
(2) such Contributions are 100% vested and nonforfeitable when made;
<PAGE>
(3) such Contributions are not distributable under the terms of the Plan
to Participants or their Beneficiaries earlier than the earlier of:
(A) separation from service, death, or disability of the Participant;
(B) attainment of age 59-1/2 by the Participant; or (C) termination of
the Plan without establishment of a successor plan; and
(4) any other requirements applicable under Code sections 401(k) and
401(m).
(d) Eligibility. Only Active Participants or Eligible Employees who are not
Highly Compensated Employees who are actively employed by the Employer on
the last day of the Plan Year shall be eligible to share in the Qualified
Nonelective Contributions, if any, made hereunder with respect to the
applicable Plan Year. To the extent provided in the regulations, the
Employers may make such Contributions on behalf of some Employees who are
not Highly Compensated Employees and not for others in that group.
(e) Allocations. The amount of the Qualified Nonelective Contributions (if any)
determined for a particular Plan Year with respect to an Employer shall be
stated in terms of-
(1) a flat dollar amount, or
(2) a percentage of Compensation with respect to Eligible Employees who
are eligible for an allocation under this Section 4.8. The allocation
method and the amount of such Contributions, if any, for a particular
Plan Year shall be determined by the Plan Administrator in its sole
discretion. Each Employer shall then contribute as a Qualified
Nonelective Contribution an amount equal to the amount determined
above.
4.9 Rollover Contributions
An Eligible Employee may, in accordance with procedures prescribed by the Plan
Administrator, contribute the following amounts to the Plan provided such
amounts are delivered to the Trustee in cash or cash equivalents:
(a) All or any portion of a distribution (or proceeds from the sale of
distributed property) which qualifies as an "eligible rollover
distribution" as defined in Code section 402(c)(4), provided such amount is
paid over to the Trustee on or before the 60th day after receipt by the
Eligible Employee of the distribution, or such amount is a direct rollover
to the Trustee made in accordance with Code section 401(a)(31) and the
Treasury regulations thereunder.
(b) A distribution from an individual retirement account, the entire amount of
which distribution is from a source described in Section 4.9(a).
<PAGE>
An Eligible Employee shall be eligible to make a Rollover Contribution either
before or after becoming an Active Participant (as provided in Section 3.1). All
Rollover Contributions with respect to an Eligible Employee shall be credited
and allocated to such Eligible Employee's Rollover Contributions Accou nt.
4.10 Limitations on Contributions
In addition to the contribution limitations and requirements of the foregoing
sections of this Article 4, contributions under the Plan shall be subject to the
following limitations and requirements:
(a) Limitation on Before-Tax Contributions. The maximum amount of Before-Tax
Contributions contributed by an Employer on behalf of any Participant
during a calendar year shall be $10,000 (as adjusted by the Secretary of
the Treasury to reflect increases in the cost of living). In any event
where the Before-Tax Contributions limited by this Section 4.10(a) would
exceed the maximum limitation provided herein, the election to make
Before-Tax Contributions shall be suspended for the balance of that
calendar year and the Participant shall be entitled to elect to make
After-Tax Contributions in lieu of the suspended Before-Tax Contributions
as provided in Section 4.10(b).
(b) Redirected Contributions. In the event any Before-Tax Contributions are
suspended pursuant to Section 4.10(a), the Participant shall be entitled to
elect to make After-Tax Contributions in lieu of the suspended Before-Tax
Contributions (but not to exceed the 12% of Compensation limit described in
Section 4.3). Any After-Tax Contributions made under this Section 4.10(b)
in lieu of suspended Before-Tax Contributions shall be allocated to the
Participant's After-Tax Contributions Account.
(c) Maximum Deductible Contributions. In no event shall an Employer make
Before-Tax Contributions on behalf of Participants for any Plan Year in an
amount greater than the maximum amount which is deductible by such Employer
under the applicable provisions of the Code.
(d) Other Contribution Limitations. Contributions under this Article 4 shall be
further subject to the limitations and restrictions of Article 8.
4.11 Elections Relating to Contributions
Elections to make Before-Tax Contributions or After-Tax Contributions under the
provisions of this Article 4 shall be subject to and governed by the following
provisions of this Section 4.11, in addition to the other conditions and
requirements relating to such Contributions as are contained in this Article 4:
<PAGE>
(a) Elections in General. All elections relating to Contributions by
Participants under this Section 4.11 shall be made in such manner as may be
prescribed by the Plan Administrator from time to time. Such election shall
designate the contribution rate or rates for the Contributions elected,
provide for the appropriate payroll deduction and/or payroll reduction of
the elected Contributions, specify the Investment Fund or Funds to which
the Contributions are to be allocated pursuant to Section 9.3, and provide
for such other information as the Plan Administrator may require from time
to time. Elected Before-Tax Contributions and elected After-Tax
Contributions shall be made by payroll reduction and deduction,
respectively. Such Contributions shall be made with respect to each pay
period the applicable election is in effect and shall be determined by
multiplying the Active Participant's Compensation for such pay period by
the elected contribution rate for the Before-Tax Contributions or After-Tax
Contributions elected, with the product thereof rounded to the nearest
whole cent. An Active Participant's election with respect to his Before-Tax
Contributions or After-Tax Contributions shall remain in effect so long as
he continues as an Active Participant, or until he makes a change with
respect to such Contributions as provided in Section 4.11(c).
(b) Commencement of Elections. An Eligible Employee must elect to make
Before-Tax Contributions or After-Tax Contributions under the Plan in order
to become an Active Participant. Such election to make Contributions shall
become effective as of the Entry Date immediately following the date such
election is made or as soon thereafter as administratively practicable.
(c) Changes in Contribution Elections. An Active Participant may elect to make
a change with respect to his election of Before-Tax Contributions or
After-Tax Contributions under the Plan, including a change with respect to
the type of such Contributions or the contribution rate or rates for such
Contributions. An election under this Section 4.11(c) shall become
effective as of the Entry Date immediately following the date such change
is made or as soon thereafter as administratively practicable.
(d) Suspension of Contributions. An Active Participant may at any time elect to
suspend all of his Before-Tax Contributions or After-Tax Contributions
under the Plan. An election to suspend Contributions under this Section
4.11(d) shall become effective as of the payroll period immediately
following the date such suspension is made or as soon thereafter as
administratively practicable.
(e) Electronic or Telephonic Changes. From time to time, the Plan Administrator
may authorize the use of electronic or telephonic communications for
affecting changes in contribution elections. Any such authorized
commencement, change, or suspension of a Participant's contribution
election shall be in lieu of any written form that might otherwise be
required pursuant to this Section 4.11.
<PAGE>
4.12 Payment of Contributions
The Employer shall deposit After-Tax and Before-Tax Contributions with the
Trustee as soon as administratively reasonable, not to exceed 90 days from the
date on which such amounts would otherwise have been payable to the Participant.
4.13 Forfeitures
Any forfeitures arising under the terms of the Plan each Plan Year shall be used
to reduce the Employers' Matching Contributions for such Plan Year or any
following Plan Year. An Employer shall receive credit for the forfeitures (if
any) of the Members who were last employed by such Employer.
In lieu of having forfeitures applied against Matching Contributions, the
Employer may elect to have any portion of such forfeitures applied toward the
payment of its share of any expenses, as provided in Section 10.9.
<PAGE>
Article 5. Accounts; Allocation and Adjustments to Accounts
5.1 Accounts of Members
The Plan Administrator shall maintain, or cause to be maintained, an Account for
each Member for the purpose of accounting for the beneficial interest of each
such Member in the assets constituting the Trust Fund, which interest is
attributable to the Contributions credited to such Member under the Plan and as
such interest is adjusted to reflect Contributions, the earnings, gains and
losses on and changes in the value of the funds credited to the Account, charges
to reflect administrative expenses and any distributions or payments made to or
with respect to such Member from his Account. Each such Account shall consist of
the following subaccounts as may be applicable to the Member in order to account
for the specified Contributions to be credited to each such subaccount:
(a) Before-Tax Contributions Account-to account for Before-Tax Contributions
credited to the Account.
(b) After-Tax Contributions Account-to account for After-Tax Contributions
credited to the Account.
(c) BenePay Contributions Account-to account for BenePay Contributions
transferred into the Plan pursuant to Section 3.7.
(d) Matching Contributions Account-to account for Matching Contributions
credited to the Account.
(e) Discretionary Employer Contributions Account-to account for Discretionary
Employer Contributions credited to the Account.
(f) Discretionary Stock Contributions Account-to account for Discretionary
Stock Contributions credited to the Account.
(g) Qualified Nonelective Contributions Account-to account for Qualified
Nonelective Contributions credited to the Account.
(h) Rollover Contributions Account-to account for Rollover Contributions
credited to the Account.
Each such subaccount, and any other subaccount maintained as part of a Member's
Account, shall reflect the applicable Contributions credited to the subaccount,
the earnings, gains and losses on and changes in the value of the funds credited
to the subaccount, charges to the subaccount to reflect administrative expenses
and any distributions or payment made to or with respect to the Member from the
subaccount. A Member's Account shall reflect the Member's investment interest of
the funds credited to such Account in the Investment Funds from time to time.
The Plan Administrator shall also maintain, cause to be maintained, such other
accounts, subaccounts, records or books as are deemed necessary to properly
provide for the maintenance of Accounts under the Plan, and to carry out the
intent and purposes of the Plan.
<PAGE>
5.2 Adjustment of Accounts; Valuation of Trust Fund
The Accounts of Members shall normally be adjusted each business day (or as soon
as administratively practicable after such business day) to reflect all
Contributions credited to the Accounts, all payments, distributions and expenses
charged to the Accounts and all earnings, gains or losses on the funds credited
to the Accounts. In making such adjustments, the Member's Accounts shall reflect
the allocations of the investment or reinvestment of the funds credited to such
Accounts among the Investment Funds (or loans pursuant to Section 7.6), and the
allocable shares of the Member's investment or reinvestment therein. The assets
of the Trust Fund shall be valued by the Trustee. The method of valuation of the
Trust Fund shall be determined by the Trustee pursuant to the terms of the Trust
Agreement and shall be made on the basis of the fair market value of the assets
of the Trust Fund.
5.3 Account Statements
At least once with respect to each Plan Year, the Plan Administrator shall
deliver to each Member in the Plan a statement of the Member's Account under the
Plan.
5.4 Transactions in BOK Financial Corporation Common Stock
(a) Securities Transactions. The Trustee may receive BOK Financial Corporation
Common Stock from an Employer in the name of the Trustee or shall upon the
Plan Administrator's direction acquire BOK Financial Corporation Common
Stock in the open market or from an Employer. Any shares of BOK Financial
Corporation Common Stock purchased from an Employer by the Trustee shall be
purchased at the purchase price as specified in the Trust Agreement.
(b) Cash Contributions. Any cash contributions intended for investment in BOK
Financial Corporation Common Stock shall be invested by the Trustee, in BOK
Financial Corporation Common Stock within 30 days following the date of
contribution. Notwithstanding the foregoing, the Trustee may maintain a
cash reserve fund within the BOK Financial Corporation Common Stock Fund.
Such cash reserve fund shall be limited to the amount needed to meet
current requirements of the Plan to make cash withdrawals or disbursements
under the Plan.
<PAGE>
5.5 Voting Rights in BOK Financial Corporation Common Stock
Shares of BOK Financial Corporation Common Stock allocated to Members' Accounts
shall be voted by the Trustee only in accordance with and upon instructions of
the Member given on forms provided for that purpose. If a Member fails to give
the Trustee written directions with regard to voting such shares, the shares
will be voted by the Trustee in the same ratio as those shares credited to the
Accounts of Members who do give instructions to the Trustee. Written notice of
any right to vote such shares shall be given by the Plan Administrator to all
Members and voting instructions received by Plan Administrator from Members
shall be transmitted to the Trustee. Any shares of BOK Financial Corporation
Common Stock held in the Trust that are not allocated to the Account of a Member
shall not be voted.
The Plan Administrator shall establish procedures to safeguard the
confidentiality of information relating to the purchase, sale, holding, and
exercise of voting and similar rights with respect to BOK Financial Corporation
Common Stock. Where the Plan Administrator determines, in its discretion, that
the potential for undo Employer influence exists over Members' exercise of such
rights, it shall appoint an "independent fiduciary" as described in Department
of Labor Regulations 2550.404(c)-(d)(4)(ix) to monitor compliance with such
procedures.
5.6 Tender Offers for BOK Financial Corporation Common Stock
In the event a tender offer or exchange offer is made involving shares of BOK
Financial Corporation Common Stock, the Administrative Committee may, in its
sole and absolute discretion, direct the Trustee to tender the shares owned by
the Plan in accordance with the terms of such tender or exchange offer. If less
than all of the shares tendered by the Plan are accepted, the Trustee shall
allocate proceeds proportionately among the Accounts of Members who are invested
in the BOK Financial Corporation Common Stock Fund as of the date of such tender
offer.
<PAGE>
Article 6. Vesting in Accounts
6.1 Fully Vested Accounts
A Member shall at all times be fully vested and have a nonforfeitable interest
in the balances credited to any Before-Tax Contributions Account, After-Tax
Contributions Account, BenePay Contributions Account, Discretionary Stock
Contributions Account, Qualified Nonelective Contributions Account, and Rollover
Contributions Account maintained for him under the Plan.
6.2 Vesting
(a) 5 Year Vesting. A Member's vested and nonforfeitable interest in the
balance credited to his Matching Contributions Account and Discretionary
Employer Contributions Account shall be determined by reference to his
completed Years of Service in accordance with the following schedule:
--------------------------- ------------------------
Completed Vested
Years of Service Percentage
--------------------------- ------------------------
Less than 5 years 0%
5 years or more 100%
--------------------------- ------------------------
(b) Accelerated Vesting. Notwithstanding the provisions of Section 6.2(a), a
Member shall be fully vested and have a nonforfeitable interest in the
balance credited to his Matching Contributions Account and Discretionary
Employer Contributions Account if:
(1) He attains age 65 while an Employee;
(2) He dies or his employment as an Employee is terminated as a result of
a Disability while an Employee; or
(3) While he is an Employee, Contributions to the Plan are completely
discontinued or the Plan is terminated, or the Plan is partially
terminated and such Member is affected by such partial termination.
<PAGE>
Article 7. Distributions; Loans; Withdrawals
7.1 Distributions Upon Termination of Employment
Upon a Member's termination of employment as an Employee for any reason, there
shall be distributed to the Member, or to his Beneficiary in case of his death,
the vested and nonforfeitable portion of the balance credited to the Member's
Account. If the vested and nonforfeitable portion of a Member's Account exceeds
$5,000 (or such higher amount as may be permitted by applicable law or
regulation), then such distribution shall not be made (without the Member's
consent) at any time before the earlier of the Member's 65th birthday or the
Member's death.
7.2 Method of Distribution
The normal form of benefit payment under the Plan shall be a single lump sum
payment. A Member may elect either an immediate single lump sum payment or a
deferred single sum payment; provided, however, that the maximum deferral period
shall be five years measured from the end of the Plan Year in which the Member
terminated his employment as an Employee. In lieu of the normal form of payment,
a Member who terminates his employment as an Employee after his 65th birthday or
after attaining his 60th birthday and completing 10 Years of Service shall be
entitled to elect monthly, quarterly, semi-annual, or annual installment
payments to be paid over a period not to exceed 10 years from the benefit
commencement date. A Member may, by written notification to the Plan
Administrator, elect to withdraw the remaining value of his vested Account
balance in a lump sum prior to the completion of the installment payment period.
All distributions shall be made in cash, except to the extent that in-kind
distribution of certain Investment Funds shall be allowed, at the Member's
election, subject to minimum share limits as established by the Plan
Administrator from time to time.
7.3 Timing of Distribution
(a) Subject to the provisions of Section 7.1, distributions pursuant to Section
7.1 shall be made to or with respect to the Member as soon as practicable
following his termination of employment.
(b) Following his termination of employment but prior to attaining age 65, a
Member shall be entitled, by written notification to the Plan
Administrator, to receive or commence his distribution in accordance with
the methods of distribution described in Section 7.2.
(c) Distribution of a Member's Account shall not commence later than the 60th
day after the later to close of the Plan Year in which-
(1) he attains age 65,
(2) his termination of employment as an Employee occurs, or
<PAGE>
(3) he attains the 10th anniversary of the date on which he became a
Participant under the Plan.
(d) If a Member dies after his termination of employment as an Employee but
prior to receiving distribution of his Account to which he is entitled
under this Article 7, his Account shall be distributed to the Member's
Beneficiary as soon as practicable after his death.
7.4 Required and Minimum Distribution Rules
Notwithstanding any other provision of this Article 7, the following provisions
shall apply to Plan distributions:
(a) In no event shall the distribution of a Member's Account commence later
than the April 1 of the calendar year following the calendar year in which
the Member attains age 70-1/2; provided, however, that in the case of a
Member who remains employed as an Employee and is not a 5 percent owner (as
defined in Code section 416(i)(1)(B)(i)), such distribution shall not be
required to be made prior to April 1 of the calendar year following the
calendar year in which the Member retires.
(b) If a Member dies prior to the payment of benefits, the Member's benefits
shall be distributed as soon as practicable following the Member's death,
and, in any event, within five years of the Member's death.
(c) In addition to the foregoing provisions of this Section 7.4, all
distributions of or with respect to a Member's benefits shall be made in
accordance with Code section 401(a)(9) (including the regulations
thereunder), and the provisions of the Plan relating to the payment of such
distributions shall be interpreted and applied in accordance with Code
section 401(a)(9). The provisions of such Code section 401(a)(9) shall
control over any distribution option or other provision of the Plan which
is inconsistent with the provisions of Code section 401(a)(9).
7.5 Forfeitures
(a) If a Member's employment as an Employee terminates and the value of the
nonforfeitable portion of the balance credited to his Account is not
greater than $5,000 (or such higher amount as may be permitted by
applicable law or regulation), the Member shall receive a distribution of
the value of the nonforfeitable portion of his Account and the value of the
nonvested portion shall be treated as a forfeiture.
(b) If a Member's employment as an Employee terminates and the value of the
nonforfeitable portion of the balance credited to his Account is greater
than $5,000 (or such higher amount as may be permitted by applicable law or
regulation), the Member may elect to receive a distribution of the value of
the nonforfeitable portion of his Account and the value of the forfeitable
portion of such Account shall be treated as a forfeiture.
<PAGE>
(c) If a Member receives a distribution pursuant to Section 7.5(a) or (b) which
is less than the value of the Member's Account and he is reemployed by an
Employer or Affiliate prior to incurring five consecutive One-Year Breaks
in Service (as defined in Section 3.6(d)(3)), any portion of such Account
forfeited pursuant to Section 7.5(a) or (b) shall be restored if the Member
repays to the Plan the full amount of his distribution. Such repayment must
be made prior to the fifth anniversary of the first date on which the
Member is subsequently reemployed by the Employer or Affiliate. The source
for restoring forfeitures shall be first, current forfeitures, and if
insufficient, an additional contribution by the Member's Employer. Repaid
distributions and restored forfeitures shall be invested in an Investment
Fund or Funds designated by the Member.
(d) If a Member incurs five consecutive One-Year Breaks in Service (as defined
in Section 3.6(d)(3)), or if Section 7.5(c) is applicable to the Member but
he fails to make the repayment described therein, he shall permanently
forfeit the portion of his Account that was forfeited pursuant to Section
7.5(a) or (b) at the time of his initial termination of employment, or if
no amount was forfeited at such time, he shall permanently forfeit the
nonvested portion of his Account at the time he incurs such five
consecutive One-Year Breaks in Service.
7.6 Loans
An "Eligible Member" (as defined in Section 7.6(b)) may make a loan from his
Account in accordance with the provisions of this Section 7.6 and any loan
procedures established from time to time by the Plan Administrator. Any such
loan shall be subject to the following provisions of this Section 7.6:
(a) Loans in General. Loans under this Section 7.6 shall only be available to
an "Eligible Member" as defined in Section 7.6(b). Each request for a loan
shall be made in such manner as may be prescribed by the Plan Administrator
from time to time, and shall be accompanied by such documentation as the
Plan Administrator may require for processing the loan request. Subject to
the further provisions of this Section 7.6, the Plan Administrator may from
time to time adopt such rules relating to the terms, conditions and the
making of loans as it deems appropriate, including, without limitation,
rules limiting the number and frequency of the loans that may be made by an
Eligible Member, providing for a minimum loan amount, providing for a fee
for a loan, and governing the loan repayment procedures.
<PAGE>
(b) Eligible Members. The term "Eligible Member" shall mean a Member who is an
Employee on the date the loan is made or any other Member who is a "party
in interest" as defined in ERISA Section 3(14) on the date on which the
loan is made. A loan to an Eligible Member who is not an Employee may be
offered on different terms and conditions than other loans where the
differences are based solely on factors that are legally considered by
commercial entities in the business of making similar loans. Pursuant to
the Plan Administrator's written administrative rules, regulations and
procedures (as provided for in Section 7.6(a)), the Plan Administrator
shall determine the terms and conditions for such loans which may include,
but shall not be limited to, charging an application fee, charging a higher
interest rate, requiring a credit report and providing a payment method and
schedule for loan repayments.
(c) Amount of Loan. The maximum amount of an Eligible Member's loan or loans
under this Section 7.6 shall not exceed the lesser of:
(1) $50,000, reduced by the excess (if any) of-
(A) the highest outstanding balance of the loan of such Member under
the Plan during the one-year period ending on the date before the
date on which a loan is made, over
(B) the outstanding balance of the loan of such Member under the Plan
on the date on which such loan is made, or
(2) 50% of the Eligible Member's vested Account balance (excluding any
amounts credited to such Eligible Members' Discretionary Stock
Contributions Account). All determinations of the maximum loan amount
under this Section 7.6(d) shall be made as of the date any loan
payment is to be made, and such maximum amount shall reflect any
outstanding loans the Eligible Member may have under any other
qualified plan maintained by the Employers or any Affiliate. The
minimum amount of any loan shall be $1,000.
(d) Term of Loan. The term for the repayment of any loan under this Section 7.6
shall not be less than one year nor extend beyond a five-year period from
the date of the loan; provided, however, that, if such loan is to be used
to acquire a dwelling unit which within a reasonable period of time is to
be used as the principal residence of the Eligible Member, then the maximum
term for such loan shall be 25 years.
(e) Interest Rate. All loans under this Section 7.6 shall bear a reasonable
rate of interest which provides the Plan with a return commensurate with
the prevailing interest rate charged on similar commercial loans by persons
in the business of lending money. Such interest rate shall be determined by
the Plan Administrator in accordance with its written loan procedures, and
after giving due consideration to those factors as may be prescribed under
Section 408(b)(6) of ERISA or other applicable law with respect to
establishing interest rates for loans under employee benefit plans.
(f) Loan Repayments. All loan repayments of principal and interest shall be
made in substantially equal amounts (with such payments no less frequently
than on a quarterly basis) so as to permit the loan to be amortized over
the term of the loan.
<PAGE>
(g) Security for Loan. The outstanding principal balance of and accrued
interest on any loan by an Eligible Member shall be secured by 50 percent
of the vested balances credited to his Account. Where it deems necessary,
the Plan Administrator may also require the Eligible Member to provide
additional security for the repayment of any loan. No loan shall be made or
remain outstanding unless the loan amount (or the outstanding balance
thereof) is adequately secured.
(h) Default. In the event an Eligible Member defaults on a loan, no actual
foreclosure shall occur with respect to funds in the Eligible Member's
Before-Tax Account which would cause a violation of the provisions of Code
section 401(k)(2)(B)(i) (i.e., before an actual distribution could be made
under the Plan).
(i) Restriction on Loans. Notwithstanding the foregoing provisions of this
Section 7.6, the Plan Administrator may limit loans, deny loans, declare
moratoriums on the granting of loans to Eligible Members, and make the
necessary rules and regulations to implement this Section 7.6.
7.7 In-Service Withdrawals
A Member may make a withdrawal from his Accounts in accordance with the
following provisions:
(a) After-Tax Contributions Account. A Member may make a withdrawal of all or
any portion of his unmatched After-Tax Contributions Account, and earnings
thereon, at any time. A Member may make a withdrawal of all or any portion
of his matched After-Tax Contributions, and earnings thereon, only after
such Contributions have been held by the Plan for at least 24 months. Only
one such withdrawal of a Member's matched After-Tax Contributions shall be
allowed in a Plan Year. For purposes of this Section 7.7(a), "matched"
After-Tax Contributions shall mean that portion of a Member's After-Tax
Contributions that was necessary to obtain a Matching Contribution
described in Section 4.5; "unmatched" After-Tax Contributions shall mean
that portion of a Member's After-Tax Contributions that did not result in
the receipt of any Matching Contributions pursuant to Section 4.5. For
purposes of determining whether a Member's After-Tax Contributions were
matched or unmatched, Matching Contributions shall always be attributed
first to any Pre-Tax Contributions made by the Member.
(b) Rollover Contributions Account. A Member may make a withdrawal of all or
any portion of his Rollover Contributions Account at any time. Only one
such withdrawal pursuant to this Section 7.7(b) shall be allowed in a Plan
Year.
<PAGE>
(c) BenePay Contributions Account, Discretionary Employer Contributions
Account, Discretionary Stock Contributions Account, and Qualified
Nonelective Contributions Account. No withdrawals are permitted from a
Member's BenePay Contributions Account, Discretionary Employer
Contributions Account, Discretionary Stock Contributions Account, and
Qualified Nonelective Contributions Account.
(d) Age 59 1/2. A Member may make a withdrawal of the entire balance of his
Before-Tax Contributions Account at any time after age 59 1/2. Only one
such withdrawal pursuant to this Section 7.7(d) shall be allowed in a Plan
Year.
(e) Financial Hardship. Prior to age 59 1/2, a Member may make a withdrawal of
all or any portion of his Before-Tax Contributions Account (but excluding
earnings allocated to such Account after December 31, 1988) and the vested
portion of his Matching Contributions Account only in the event of a
Disability (as defined in Section 2.1(i)) or a "financial hardship" as
provided in this Section 7.7(e). Only one such withdrawal shall be allowed
pursuant to this Section 7.7(e) in a Plan Year. A Member shall be
considered to have a "financial hardship" if he incurs an immediate and
heavy financial need and a withdrawal is necessary to satisfy such
financial need. In applying the "financial hardship" provisions in the
immediately preceding sentence, the provisions in Section 7.7(e)(1) and
7.7(e)(2) shall apply to the determination of such financial hardship and
the payment of such hardship withdrawal:
(1) The Member's hardship withdrawal shall be deemed to be made on account
of an immediate and heavy financial need of the Member if it is made
on account of one or more of the following situations:
(A) payment of "medical expenses" (described in Code section 213(d))
incurred by the Member or the Member's spouse or "dependents" (as
defined in Code section 152);
(B) purchase, excluding mortgage payments, of a principal residence
for the Member;
(C) payment of tuition and related educational fees for the next 12
months of post-secondary education for the Member, the Member's
spouse, children or dependents;
(D) payment to prevent the eviction of the Member from his principal
residence or the foreclosure on the mortgage of the Member's
principal residence;
(E) funeral expenses for a Member's spouse, child or dependent;
<PAGE>
(F) reduction in a Member's salary due to the corporate
reorganization of the Member's Employer; or
(G) such other deemed financial needs as are published from time to
time by the Commissioner of Internal Revenue.
(2) A hardship withdrawal pursuant to this Section 7.7(e) shall be
considered to be necessary to satisfy an immediate and heavy financial
need of the Member only if all of the following requirements are
satisfied:
(A) The amount of the Member's withdrawal shall be limited to an
amount which is not in excess of the amount of the immediate and
heavy financial need of the Member. The amount of an immediate
and heavy financial need may include any amounts necessary to pay
any federal, state, or local income taxes or penalties reasonably
anticipated to result from the distribution.
(B) The Member shall not be eligible to make a hardship withdrawal
pursuant to this Section 7.7(e) unless the Member has already
made a withdrawal pursuant to the other withdrawal provisions of
this Section 7.7 and a loan pursuant to Section 7.6 of all
available amounts under such Sections (or he makes such
withdrawal and loan at the time he makes his hardship withdrawal
under this Section 7.7(e)).
(C) If the Member makes a hardship withdrawal pursuant to this
Section 7.7(e), such Member shall not be permitted to make
Before-Tax Contributions under Section 4.2 or After-Tax
Contributions under Section 4.3 at any time during the 12-month
period from the date he receives such hardship withdrawal
payment. If such Member has an election in effect with respect to
Before-Tax or After-Tax Contributions at the time of such
withdrawal, such election shall automatically be suspended as of
the date of his hardship withdrawal payment.
(D) In applying the Before-Tax Contributions limitation in Section
4.10(a), the limitation as applied to the Plan Year immediately
following the Plan Year in which the Member receives his hardship
withdrawal payment shall take into account the Member's
Before-Tax Contributions for the Plan Year in which he received
his hardship withdrawal payment.
<PAGE>
The requirements and conditions of (A) through (D) of this Section
7.7(e)(2) shall only be considered to have been satisfied if they are
satisfied with respect to the Plan and under the comparable provisions
of any other plan maintained by an Employer or Affiliate in which the
Member participates, has participated or becomes eligible to
participate, with such provisions being applied in a manner consistent
with the applicable requirements in (B) through (D) of this Section
7.7(e)(2). If provisions comparable to the requirements of (B) through
(D) of this Section 7.7(e)(2) are applicable with respect to a
Member's hardship withdrawal under any other plan maintained by an
Employer or Affiliate, the requirements of (B) through (D) of this
Section 7.7(e)(2) shall be applicable to such Participant with respect
to his participation under this Plan.
For purposes of financial hardship determinations pursuant to this
Section 7.7(e), a financial need shall not fail to qualify as
immediate and heavy merely because such need was reasonably
foreseeable or voluntarily incurred by the Member. A Member's request
for a hardship withdrawal under this Section 7.7(e) must be
accompanied or supplemented by such evidence of financial hardship as
the Plan Administrator may reasonably require. Approval or disapproval
of such withdrawal request shall be within the sole discretion of the
Plan Administrator.
(f) Withdrawals in General. All withdrawal requests pursuant to this Section
7.7 shall be made in such manner as the Plan Administrator may prescribe
from time to time. In addition, withdrawals pursuant to this Section 7.7
shall be subject to and made in accordance with such rules and procedures
as the Plan Administrator may prescribe from time to time, including rules
governing the withdrawal and allocation of withdrawal payments among the
Investment Funds in which the Member's Account is invested. The value of
the Member's funds available for withdrawal shall be determined as of the
date on which his withdrawal request is made (or, in the case of a hardship
withdrawal, approved), and the value of the funds available for withdrawal
shall exclude the outstanding balance of any loan made to the Member
pursuant to the provisions of Section 7.6. The minimum amount of any
withdrawal shall be $500, or the Member's entire Account balance, if less.
7.8 Withholding Taxes
The Employer may withhold from a Member's Compensation and the Trustee may
withhold from any payment under this Plan any taxes required to be withheld with
respect to contributions or benefits under this Plan.
7.9 Direct Rollover Option
(a) In General. Notwithstanding any provision of the Plan to the contrary, a
Distributee may elect to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan specified by the
Distributee in a Direct Rollover.
(b) Definitions. In applying the provisions of Section 7.9(a), the following
definitions shall apply:
(1) "Direct Rollover" means a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
<PAGE>
(2) "Distributee" means a Member, a Member's surviving spouse, and the
Member's spouse or former spouse who is the alternate payee under a
qualified domestic relations order, as defined in Code section 414(p),
with regard to the interest of the spouse or former spouse.
(3) "Eligible Retirement Plan" means 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 section 401(a),
that accepts the Distributee's Eligible Rollover Distribution.
However, in the case of an Eligible Rollover Distribution to a
Distributee's surviving spouse, an Eligible Retirement Plan is an
individual retirement account or individual retirement annuity.
(4) "Eligible Rollover Distribution" means any distribution of all or any
portion of the balance of the Distributee's Account, except that an
Eligible Rollover Distribution does not include: any distribution that
is one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of
the Distributee or the joint lives (or joint life expectancies) of the
Distributee and Distributee's designated beneficiary, or for a
specified period of ten years or more; any distribution to the extent
such distribution is required under Code section 401(a)(9); and the
portion of any distribution that is not includible in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(c) Special Requirements. Direct Rollovers are subject to the following
additional requirements:
(1) No amount shall be directly rolled over pursuant to this Section 7.9
unless and until it would otherwise be distributed to the Distributee
and all consents and written elections required to make the
distribution have been obtained. Nothing in this Section 7.9 shall be
construed to permit a Distributee to select more than one of the forms
of benefit described in Section 7.2 or elsewhere in the Plan.
(2) The Plan Administrator shall provide notice to each Distributee who
will receive an Eligible Rollover Distribution of the Distributee's
right to elect a Direct Rollover in accordance with Code section
401(a)(31). The Plan Administrator shall provide such notice at the
time and in the manner required by regulations.
(3) The Distributee shall notify the Plan Administrator in writing by such
deadline as the Plan Administrator shall prescribe whether or not he
wishes to have any part of the Eligible Rollover Distribution directly
rolled over. If the Distributee fails to elect a Direct Rollover by
the deadline established by the Plan Administrator, then the entire
amount of the Eligible Rollover Distribution shall be distributed
directly to the Distributee.
<PAGE>
(4) A Distributee may elect that the lowest of the following amounts shall
be directly rolled over:
(A) the entire amount of the Eligible Rollover Distribution;
(B) such portion of the Eligible Rollover Distribution as the
Distributee specifies (in accordance with rules established by
the Plan Administrator), provided that the amount directly rolled
over is not less than $500 or such higher amount as the Plan
Administrator may prescribe in accordance with Treasury
regulations; or
(C) no portion of the Eligible Rollover Distribution if his Eligible
Rollover Distributions during the year are reasonably expected to
total less than $200.
(5) The Distributee may only request a Direct Rollover to one Eligible
Retirement Plan.
(6) No amount will be directly rolled over pursuant to this Section 7.9
unless the Distributee provides the Plan Administrator, by such
deadline as the Plan Administrator shall prescribe, such information
as it shall require:
(A) to determine that the amount directly rolled over will be
received by an Eligible Retirement Plan that will accept the
Direct Rollover; and
(B) to make the Direct Rollover and make such reports and keep such
records as are required under applicable law.
The Plan Administrator may rely on all such information provided by
the Distributee and shall not be required to verify any such
information.
(7) The Plan Administrator shall select the manner in which to make the
Direct Rollover.
(8) Any amount directly rolled over in accordance with this Section 7.9
shall be a distribution from this Plan and shall discharge any
liability to the Distributee under this Plan to the same extent as a
payment directly to the Distributee.
<PAGE>
7.10 Distribution on Sale of Subsidiary/Assets
In the event of the disposition by an Employer of substantially all of the
assets used in its business or its interest in a subsidiary to an unrelated
company, the Plan Administrator may allow any Member who stays with the
subsidiary after the sale to receive a single lump-sum distribution of his
entire Account from the Plan. Any distribution pursuant to this Section 7.10
shall be made in accordance with the provisions of Code section 401(k)(10), and
in accordance with the provisions of Treas. Reg. 1.401(k)-1(d)(4) establishing
the rules applicable to distributions upon the sale of assets or a subsidiary.
The Plan Administrator shall instruct the Trustee as to the making of Plan
distributions following any such sale.
<PAGE>
Article 8. Limitations
8.1 Limitations on Before-Tax Contributions
(a) In no event shall any Employer make Before-Tax Contributions and BenePay
Contributions (collectively referred to as Before-Tax Contributions in this
Article 8) for any Plan Year that would result in the actual deferral
percentage of the group of Highly Compensated Employees who are Eligible
Employees and are participating or are eligible to participate as
Participants exceeding the actual deferral percentage of the group of all
other of such Eligible Employees by more than the greater of-
(1) one and one-quarter times, or
(2) the lesser of (A) two times or (B) two percentage points.
The deferral percentage of each group of such Eligible Employees for any
Plan Year shall be the average of the ratios (calculated separately for
each Eligible Employee in each such group) of (i) the Before-Tax
Contributions made on behalf of each such Eligible Employee for such Plan
Year to (ii) such Eligible Employee's Compensation for such Plan Year. The
deferral percentage for each group and the ratio for each Eligible Employee
in the group shall be calculated to the nearest 1/100 of 1 percent.
The actual deferral percentages for Highly Compensated Employees shall be
determined based on the current Plan Year information; while the deferral
percentages for all other Eligible Employees shall be determined based on
the information for the immediately preceding Plan Year; provided, however,
that the Sponsor may elect to use current year information for both groups
in accordance with applicable regulations.
(b) To the extent permitted by applicable regulations, the Plan Administrator
may elect that the Employers will make Qualified Nonelective Contributions,
as defined in Section 4.8, that are treated as Before-Tax Contributions
under the Plan when applying the deferral percentage test described in
Section 8.1(a). The Plan Administrator may also treat Discretionary Stock
Contributions under Section 4.7, as Before-Tax Contributions under the Plan
when applying the deferral percentage test described in Section 8.1(a). No
Qualified Nonelective Contributions or Discretionary Stock Contributions
shall be included under both Sections 8.1 and 8.2 for testing purposes.
<PAGE>
(c) To the extent necessary to conform to the limitations in Section 8.1(a),
the Plan Administrator shall reduce the Before-Tax Contributions made on
behalf of the Highly Compensated Employees. Such reduction shall be
effected by reducing Before-Tax Contributions made on behalf of Highly
Compensated Employees (in the order of their Before-Tax Contributions)
beginning with the Highly Compensated Employees who made the largest dollar
amounts of Before-Tax Contributions.
(d) The Plan Administrator may implement the reductions necessary to comply
with the limitations provided for in this Section 8.1 at periodic intervals
throughout each Plan Year and following the close of the Plan Year. Any
such reduction in the Before-Tax Contributions already contributed on
behalf of any Participant shall be refunded to the Participant as soon as
administratively feasible, as provided under rules adopted by the Plan
Administrator, but will be made at the latest before the close of the
following Plan Year. Such rules may provide each Active Participant
affected by a reduction with an opportunity to make a change with respect
to his Before-Tax Contributions election at the time a reduction is
applied, and at such later time when such reductions are no longer
necessary to comply with the limitations of this Section 8.1. A reduction
pursuant to this Section 8.1(d) which results in a refund of Before-Tax
Contributions already contributed under the Plan shall include with such
refunded amounts any earnings allocable to such refunded amount through the
end of the Plan Year. Any such refunded earnings shall be computed in
accordance with a method established by the Plan Administrator that is used
consistently for all Participants and for all refunded amounts for the Plan
Year, and is used by the Plan for allocating income to Participants'
Accounts.
(e) The amount of Before-Tax Contributions refunded to a Participant pursuant
to this Section 8.1 shall be reduced by the amount of any Before-Tax
Contributions previously distributed to the Participant to comply with the
limitations of Sections 8.1(a) and 8.4.
<PAGE>
(f) The determination and treatment of the Before-Tax Contributions and the
actual deferral percentage of any Eligible Employee under this Section 8.1
shall satisfy the special provisions in this Section 8.1(f) and such other
applicable requirements prescribed in Treasury regulations. An Eligible
Employee shall include those Eligible Employees whose eligibility to make
Before-Tax Contributions has been suspended because of an election not to
participate, a distribution or a loan and those Eligible Employees who
cannot defer because of the Code section 415 limits on annual additions.
The deferral percentage of an Eligible Employee who makes no Before-Tax
Contributions shall be zero. A Before-Tax Contribution shall be taken into
account under the actual deferral percentage test for a Plan Year only if
it is withheld from the Eligible Employee's Compensation within that Plan
Year, allocated to his Account as of a date within the Plan Year and paid
to the Trust as provided in Section 4.12. The actual deferral percentage
for any Eligible Employee who is a Highly Compensated Employee for the Plan
Year and who is eligible to have before-tax contributions allocated to his
accounts under two or more plans or arrangements maintained by the Employer
or an Affiliate (excluding plans that cannot be permissively aggregated)
shall be determined as if all such before-tax contributions were made under
a single arrangement. Any before-tax contributions made under two or more
plans maintained by the Employer or an Affiliate which 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 applying the
average deferral percentage test then the aggregated plans must satisfy
Code sections 401(a)(4) and 410(b) as though they were a single plan.
8.2 Limitations on After-Tax Contributions and Matching Contributions
(a) In no event shall After-Tax Contributions and Matching Contributions for
any Plan Year be made which would result in the contribution percentage of
the group of Highly-Compensated Employees who are Eligible Employees and
are participating or are eligible to participate as Participants exceeding
the contribution percentage of the group of all other of such Eligible
Employees by more than the greater of-
(1) one and one-quarter times, or
(2) the lesser of (A) two times or (B) two percentage points. The
contribution percentage of each group of such Eligible Employees for
any Plan Year shall be the average of the ratios (calculated
separately for each Eligible Employee in each such group) of (i) the
After-Tax Contributions and Matching Contributions made on behalf of
each such Eligible Employee for such Plan Year to (ii) such Eligible
Employee's Compensation for such Plan Year. The contribution
percentage for each group and the ratio for each Eligible Employee in
the group shall be calculated to the nearest 1/100 of 1 percent.
The contribution percentages for Highly Compensated Employees shall be
determined based on the current Plan Year information, while the
contribution percentages for all other employees shall be determined based
on the information for the immediately preceding Plan Year; provided,
however, that the Sponsor may elect to use current year information for
both groups.
(b) To the extent permitted by applicable regulations, the Plan Administrator
may elect that the Employers will make Qualified Nonelective Contributions,
as defined in Section 4.8, that are treated as After-Tax and/or Matching
Contributions under the Plan when applying the contribution percentage test
described in Section 8.2(a). The Plan Administrator may also treat
Discretionary Stock Contributions under Section 4.7, as After-Tax or
Matching Contributions under the Plan when applying the contribution
percentage test described in Section 8.2(a). No Qualified Nonelective
Contributions or Discretionary Stock Contributions shall be included under
both Section 8.1 and 8.2 for testing purposes.
<PAGE>
(c) To the extent necessary to conform to the limitations in Section 8.2(a),
the Plan Administrator shall reduce the After-Tax Contributions and the
Matching Contributions made on behalf of the Highly Compensated Employees.
Such reductions shall be affected by reducing After-Tax Contributions and
Matching Contributions made by or on behalf of Highly Compensated Employees
(in order of their After-Tax Contribution or Matching Contribution amounts)
beginning with the Highly Compensated Employees who received the largest
dollar amount of allocation of each Contribution.
(d) The Plan Administrator may implement the reductions necessary to comply
with the limitations provided for in this Section 8.2 at periodic intervals
throughout each Plan Year and following the close of the Plan Year. Any
such reduction with respect to After-Tax Contributions already contributed
under the Plan on behalf of any Participant shall be refunded to the
Participant. Any such reductions with respect to the Matching Contributions
already made under the Plan on behalf of any Participant shall be paid to
the Participant (to the extent he is vested) or treated as a forfeiture (to
the extent forfeitable). Such refunds or payments shall be made as soon as
administratively feasible, but will be made at the latest before the close
of the following Plan Year. The reductions provided for under this Section
8.2(d) shall also be made in accordance with such rules as the Plan
Administrator may provide from time to time, including rules similar to the
rules described in Section 8.1(d) relating to changes with respect to
Before-Tax Contributions elections. A reduction pursuant to this Section
8.2(d) which results in a refund of After-Tax Contributions or Matching
Contributions already contributed under the Plan shall include with such
refunded amounts any earnings allocable to such refunded amounts through
the end of the Plan Year. Any such refunded earnings shall be computed in
accordance with a method established by the Plan Administrator that is used
consistently for all Participants and for all refunded amounts for the Plan
Year, and is used by the Plan for allocating income to Participants'
Accounts. The reductions provided under this Section 8.2(d) shall be made
on the basis of the respective portions of such amounts attributable to
each Highly Compensated Employee.
<PAGE>
(e) The determination and treatment of the After-Tax Contributions and Matching
Contributions and the actual contribution percentage of any Eligible
Employee under this Section 8.2 shall satisfy the special provisions of
this Section 8.2(e) and such other applicable requirements prescribed in
Treasury regulations. An After-Tax Contribution shall be taken into account
only if it is paid to the Trust during the Plan Year or within a reasonable
period after the Plan Year to which it relates. Matching Contributions
shall be taken into account under the actual contribution percentage test
for a Plan Year only if allocated to the Eligible Employee's Account as of
a date within the Plan Year and paid to the Trust by the end of the 12th
month following the close of the Plan Year. The contribution percentage for
any Eligible Employee who is a Highly Compensated Employee for the Plan
Year and who is eligible to have matching contributions and/or after-tax
employee contributions allocated to his accounts under two or more plans or
arrangements maintained by the Employer or an Affiliate (excluding plans
that cannot be permissively aggregated) shall be determined as if all such
contributions were made under a single arrangement. Any after-tax or
matching contributions made under two or more plans maintained by the
Employer or an Affiliate which 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 applying the contribution
percentage test then the aggregated plans must satisfy Code sections
401(a)(4) and 410(b) as though they were a single plan.
(f) After any Before-Tax Contributions are distributed pursuant to Section 8.1
and any Matching Contributions are distributed (or forfeited) pursuant to
Section 8.2, the rate of any Highly Compensated Employee's Matching
Contributions must satisfy the requirements of Code section 401(a)(4), and
any such Highly Compensated Employee's Account shall be reduced by
forfeiting any Matching Contributions and attributable earnings as
necessary to satisfy Code section 401(a)(4) nondiscrimination requirements.
8.3 Combination of Limitations; Multiple Use
The Plan Administrator may comply with the limitations of Sections 8.1 and 8.2
by combining contributions under the Plan with contributions under any other
defined contribution plan maintained by an Employer or an Affiliate. Such
combination shall be done in compliance with such guidelines, if any,
established by the Secretary of the Treasury. In addition, the deferral
percentage and contribution percentage test limitations of Sections 8.1(a) and
8.2(a) shall be applied in accordance with the provisions of Code sections
401(k) and 401(m), including any limitations as may be imposed by final
regulations under such Code sections relating to the multiple use of the
deferral percentage tests in Sections 8.1(a)(2) and 8.2(a)(2).
8.4 Limitations on Annual Account Additions
(a) Annual Account Addition. "Annual Account Addition" means for any Member for
any Plan Year, which shall also be the limitation year, the sum of-
(1) Employer or employee contributions made for him under any defined
contribution plan, including excess contributions (as defined in Code
section 401(k)(8)(B)), excess aggregate contributions (as defined in
Code section 401(m)(6)(B)) and excess deferrals (as described in Code
section 402(g)), irrespective of whether such amounts are distributed
or forfeited;
(2) Forfeitures allocated to him under any defined contribution plan; and
(3) Amounts described in Code sections 415(l)(1) and 419A(d)(2) allocated
to him.
<PAGE>
"Any defined contribution plan" means all defined contribution plans of the
Employers and Affiliates considered as one plan. For purposes of this
Section 8.4, "Affiliate" shall have the meaning provided in Section 2.1(b),
except that the phrase "more than 50%" shall be substituted for the phrase
"at least 80%" each place it appears in Code section 1563(a)(1). A Rollover
Contribution pursuant to Section 4.9 shall not be included as part of a
Member's Annual Account Addition (nor shall any similar amounts under any
other defined contribution plan).
(b) Limitation. A Member's Annual Account Addition for any Plan Year shall not
exceed the lesser of-
(1) $30,000; or
(2) 25 percent of the Member's Compensation.
The limitation in Section 8.4(b)(2) shall not apply to (i) any contribution
for medical benefits (within the meaning of Code section 419A(f)(2)) after
separation from service which are treated as an Annual Account Addition, or
(ii) any amount otherwise treated as an Annual Account Addition under Code
section 415(l)(1).
(c) Additional Limitation For 1999. With respect only to the 1999 Plan Year, if
a Member is covered both under any defined contribution plan and under any
defined benefit plan, the sum of the defined benefit plan fraction (as
defined in Code section 415(e)(2)) and the defined contribution plan
fraction (as defined in Code section 415(e)(3)) for such Plan Year shall
not exceed one. In calculating the defined contribution fraction, the Plan
Administrator may make the election described in Code section 415(e)(6). It
is intended to reduce the benefits payable under any defined benefit plan
to the extent necessary to prevent the sum of such fractions for any Plan
Year from exceeding one before reducing contributions to any defined
contribution plan. "Any defined benefit plan" means all defined benefit
plans of the Employers and Affiliates considered as one plan.
(d) Reduction in Annual Account Additions. If in any Plan Year a Member's
Annual Account Addition exceeds the limitation determined under Section
8.4(b), such excess shall not be allocated to his accounts in any defined
contribution plan but shall be handled in the following manner and order
until such excess is eliminated:
(1) His after-tax contributions or any part thereof shall be refunded to
him;
(2) His portion of the before-tax contributions or any part thereof made
on his behalf shall be refunded to him;
(3) His portion of the allocation of employer matching contributions or
any part thereof shall be placed in a suspense account; and
<PAGE>
(4) His portion of the allocation of any employer contributions (other
than employer contributions described in Section 8.4(d)(2) and (d)(3))
or any portion thereof shall be placed in a suspense account. Such
reductions shall be applied first to any other defined contribution
plan, and thereafter to the Plan. If after the application of this
Section 8.4(d), any amount is held in a suspense account, such amount
shall be used to reduce Employer contributions for such Member in the
next Plan Year and each succeeding Plan Year, if necessary. If the
Member becomes a Former Participant, any amounts held in a suspense
account will then be applied to reduce future Employer contributions
for all remaining Members in the next Plan Year, and each succeeding
Plan Year, if necessary. Any suspense account established pursuant to
this Section 8.4(d) shall not share in the gains and losses of the
Trust Fund. If a suspense account is in existence for a Plan Year, all
amounts in the suspense account must be allocated to the Member before
any Employer or Participant Contributions may be made to the Plan for
such year. Amounts held in a suspense account may not be distributed
to the Member.
(e) Code section 415. The limitations and provisions of this Section 8.4
shall be applied in accordance with the provisions of Code section 415
and the regulations issued thereunder, which are hereby incorporated
by reference into the Plan. In addition, the limitations and
reductions provided for in this Section 8.4 shall be applied in
accordance with such rules as the Plan Administrator may prescribe
from time to time to carry out the provisions of this Section 8.4 and
Code section 415, including any transition rules which are or have
been applicable under Code section 415 resulting from the changes in
the limitations provided thereunder.
<PAGE>
Article 9. Investment of Accounts
9.1 Investments
(a) Investments in General. All Contributions shall be paid over to the Trustee
and shall be invested promptly by the Trustee as provided in this Article 9
and in accordance with the terms of the Trust Agreement. Dividends,
interest, earnings, proceeds from the sale or tender of assets or
securities (except where a loan, withdrawal, or distribution is being made)
and other income from the assets credited to an Investment Fund shall be
promptly reinvested in such Fund.
(b) Investment in Investment Funds. Contributions and all other funds credited
to Member Accounts under the Plan shall be invested in the Investment Funds
under the Plan in accordance with the Member's investment elections in
effect from time to time.
(c) Member-directed Investments. The provisions in this Article 9 pertaining to
Member-directed investments are intended to qualify the Plan for exemption
of the Plan, the Employers, and the Plan Administrator for liability for
investment losses where a Member exercises control over the assets in his
Account in accordance with ERISA Section 404(c) and the regulations
thereunder.
(d) Loans. Notwithstanding the foregoing provisions of this Section 9.1, in any
case where a Member has made a loan of any portion of his Account pursuant
to the Section 7.6, the Member shall be deemed to have directed the
investment of the outstanding balance of such loan from time to time, and
such balance shall be invested in such loan in accordance with the terms of
the loan and the provisions of Section 7.6.
9.2 Investment Funds
The Plan shall provide for Investment Funds for the investment of the funds
credited to Members' Accounts from time to time.
In addition to or in lieu of the initial Investment Funds, the Plan
Administrator may also from time to time designate other Investment Funds to be
available for the investment of the funds credited to the Members' Accounts. The
Plan Administrator shall instruct and advise the Trustee and the Members as to
the addition or deletion of an Investment Fund, including the effective date of
any such addition or deletion and any special provisions as may be applicable to
the investment elections or transfers with respect to the Investment Funds. The
Plan Administrator shall designate the investment company, insurance company or
other financial institution or institutions (including the Trustee) responsible
for the management and administration of the investment of the funds of each
Investment Fund. The Plan Administrator shall also establish such investment
guidelines or directions as it may deem appropriate relating to the investment
management and administration of the Investment Funds. The investment of funds
in the Investment Fund shall also be subject to the investment provisions of the
Trust Agreement.
<PAGE>
9.3 Investment Elections for Contributions
Each Participant (or Eligible Employee, if applicable) shall file with the Plan
Administrator an investment election with respect to the Contributions made by
or on behalf of such Participant (or Eligible Employee) under the Plan. Such
investment election shall be made in such manner as the Plan Administrator shall
prescribe from time to time. The Participant's (or Eligible Employee's)
investment elections shall be subject to the following provisions:
(a) Commencement of Active Participation. Whenever a Participant commences or
recommences active participation under the Plan as provided in Section 3.1
or 3.2, such Participant shall make his investment election no later than
the date on which he is to commence or recommence his status as an Active
Participant. Such investment election shall be applicable to all subsequent
Contributions made on behalf of such Participant under the Plan and the
investment election shall remain in effect so long as the Participant
continues as an Active Participant, or until such Participant makes a
change with respect to the investment of his future Contributions, as
provided in Section 9.3(c).
(b) Rollover Contributions. Whenever an Eligible Employee makes a Rollover
Contribution either before or after he becomes an Active Participant, such
Eligible Employee shall make his investment election no later than the date
on which his Rollover Contribution is made to the Plan. Such investment
election shall be applicable with respect to the Rollover Contribution made
by or on behalf of the Eligible Employee.
(c) Change in Investment Elections. An Active Participant may change his
investment elections in the manner prescribed by the Plan Administrator to
be effective with respect to all future Contributions made by or on behalf
of such Active Participant under the Plan. Such investment election shall
remain in effect so long as the Participant continues as a Participant, or
until the Participant makes a change with respect to the investment of his
future Contributions, as provided in this Section 9.3(c).
(d) Electronic or Telephonic Changes. From time to time, the Plan Administrator
may authorize the use of electronic or telephonic communications for
effecting changes in investment elections.
<PAGE>
Each time a Participant (or Eligible Employee) makes an investment election or
investment election change, he shall designate the percentage increments for the
investment of his Contributions among the available Investment Funds. Such
designation shall be in any whole percentage increments, unless the Plan
Administrator, in its discretion, provides for investments in other specified
percentage increments. The Contributions made by or on behalf of each
Participant (or Eligible Employee) shall be invested under the Plan in
accordance with the investment election he then has in effect with respect to
such Contributions. Each such investment election shall also be applicable with
respect to any earnings or other income attributable to the Contributions
subject to such investment election.
9.4 Investment Transfers
A Member may make an investment transfer election with respect to the balance
credited to his Accounts. Such investment transfer election shall be made in
such manner as the Plan Administrator may prescribe from time to time including
electronic or telephonic communications, and such investment transfer election
shall become effective on that business day, or as soon thereafter as
administratively practicable. To effect an investment transfer election, the
Member shall designate the dollar amounts or percentage increments for the
investment of the balance credited to his Accounts as of the effective date of
his election. Such designation shall be in whole dollar amounts or in whole
percentage increments unless the Plan Administrator, in its discretion, provides
for investments in other specified dollar amounts or percentage increments. Any
loss in value or adverse consequences resulting from such transfers shall reduce
the value of the amount to be transferred, as directed by the Member. The Plan
Administrator may restrict, delay or prohibit transfers in any Plan Year to the
extent the effecting of such transfers may tend to create adverse investment
results for one or more of the Funds.
9.5 Rules of Plan Administrator
The Plan Administrator shall prescribe such rules and procedures from time to
time as deemed appropriate for investment elections and investment transfers
under the Plan. The Plan Administrator may also from time to time provide for
limitations or restrictions applicable to specific Contributions, Accounts and
Investment Funds. The Plan Administrator may prescribe "default" procedures for
the investment of the Contributions made by or on behalf of a Participant (or
Eligible Employee) who fails to make an effective investment election pursuant
to Section 9.3(a) or (b). The Plan Administrator's rules and procedures relating
to investment elections and investment transfers shall be administered in a
nondiscriminatory manner.
<PAGE>
Article 10. Administration and Fiduciary Responsibilities
10.1 Duties and Powers of Plan Administrator
The Plan Administrator shall be charged with the duty of administering the Plan
and it shall have such powers and discretion, as may be necessary to discharge
its duties under the Plan, including, but not by way of limitation, the
following powers and duties:
(a) to administer, interpret, and construe the Plan, in its sole discretion and
to determine all questions arising in connection therewith in its sole
discretion;
(b) to compute, certify, and direct the Trustee with respect to the amount and
the kind of benefits to which any Member shall be entitled hereunder;
(c) to authorize and direct the Trustee with respect to all nondiscretionary
disbursements from the Trust;
(d) to maintain all necessary records for the administration of the Plan;
(e) to make and publish such rules for the regulation of this Plan as are
consistent with the terms hereof;
(f) to compute and certify to an Employer and to the Trustee from time to time
the sums of money necessary or desirable to be contributed to the Trust
Fund;
(g) to prepare and deliver all forms, reports, notices, Plan summaries, and
Plan descriptions required to be filed with any governmental office or to
be given to any Eligible Employee or Member;
(h) to establish uniform procedures for loans made available under Section 7.6
of this Plan;
(i) to appoint such agents, as it may deem necessary for the effective exercise
of its duties, and delegate to such agents any powers and duties, both
ministerial and discretionary, as the Plan Administrator may deem
appropriate;
(j) to establish procedures, correct defects, supply information, or reconcile
any inconsistency in this Plan in such a manner and to such extent as shall
be deemed necessary or advisable to carry out the purpose of this Plan;
provided, however, that any procedure, discretionary act or interpretation
of this Plan shall be applied uniformly in a manner consistent with the
intent that this Plan and Trust shall continue to be qualified under the
Code; and
<PAGE>
(k) to adopt and establish such procedures, records, forms, notices and
provisions as necessary to preserve and maintain any and all benefits,
rights and features provided participants under any qualified employee plan
which may merge into the Plan, to the extent any such benefit, right or
feature is required by Code section 411(d)(6) and the regulations
promulgated, thereunder to be preserved and maintained with respect to the
accrued benefit of any participant as of the effective date of such merger;
and
(l) to employ investment advisors, investment managers, investment
counsel, accountants, appraisal companies, actuarial consultants,
public accountants, legal counsel and other individuals to assist the
Plan Administrator in the performance of their respective duties under
the Plan.
The decision of the Plan Administrator upon all matters within the scope of its
authority shall be conclusive and binding on all persons, including each
Employer, Member, Employee, Beneficiary and the Trustee.
10.2 Duties and Powers of Administrative Committee
The Administrative Committee shall have the following duties and
responsibilities under the Plan and it shall have such powers and discretion, as
may be necessary to discharge such duties:
(a) to review and decide, in its sole discretion, all claims filed under the
claims review procedure set forth in Section 10.11 of the Plan;
(b) to make the tender offer decisions reserved to it under Section 5.6 of the
Plan; and
(c) to perform any other acts or duties which are delegated to it in writing
executed by both the Plan Administrator and a majority of the members of
the Administrative Committee.
The decision of the Administrative Committee upon all matters within the scope
of its authority shall be conclusive and binding on all persons, including each
Employer, Member, Employee, Beneficiary and the Trustee.
10.3 Membership
The members of the Administrative Committee shall be appointed by the Sponsor in
accordance with procedures established by its Board of Directors. The membership
of the Administrative Committee may be changed by the Sponsor at any time and
from time to time; provided, however, that the Administrative Committee at all
times shall consist of not less than three individuals. Any member of the
Administrative Committee may resign at any time by delivering a written notice
of resignation to the Chief Executive Officer of the Sponsor. The members of the
Administrative Committee shall elect a Chairman and a Secretary who may, but
need not, be a member of the Administrative Committee, and may designate other
positions within the membership of the Administrative Committee.
<PAGE>
10.4 Voting
All actions of the Administrative Committee shall be determined by the vote or
other affirmative written expression of a majority of the members of the
Administrative Committee, except actions regarding withdrawals or loans, which
may be determined by the Chairman or his designee acting alone. Any certificate
or other written direction on behalf of the Administrative Committee shall be
signed by the Chairman or such other individual as shall be granted such
authority by the Chairman.
10.5 Compensation and Bonding
Members of the Administrative Committee shall not be entitled to receive
compensation for their services as such, but shall be entitled to reimbursement
from the Employer for expenses incurred in such capacity. The Employer shall
provide a fidelity bond for each member of the Administrative Committee as
required by law. To the extent not insured against by any applicable insurance
policy, the Employer shall indemnify each member of the Administrative Committee
against any and all claims, loss, damages, expense, and liability arising from
any action or failure to act, except when the same is judicially determined to
be due to the gross negligence or willful misconduct of such member.
10.6 Employer to Furnish Information
Upon request of the Administrative Committee, each Employer shall furnish such
information as is in its possession that will aid the Administrative Committee
in the performance of its duties hereunder.
10.7 Records
All resolutions, proceedings, acts and determinations of the Administrative
Committee shall be recorded by the Administrative Committee or under its
supervision, and all such records, together with such documents and instruments
as may be necessary for the administration of the Plan, shall be preserved in
the custody of the Administrative Committee.
10.8 Allocation of Fiduciary Responsibilities
The Plan Administrator, Administrative Committee, Trustee, and each Employer
shall be the "named fiduciaries" of the Plan as required by ERISA section
402(a). Each named fiduciary shall have only those specific powers, duties,
responsibilities, and obligations as are specifically given such fiduciary under
this Plan. This Plan allocates to each named fiduciary the individual
responsibility for the prudent execution of the functions assigned to such
person, and none of such responsibilities or any other responsibility shall be
shared by two or more of such named fiduciaries, unless such joint
responsibility shall be provided by a specific provision of this Plan. Whenever
one named fiduciary is required by this Plan to follow the directions of another
named fiduciary, the two named fiduciaries shall not be deemed to have been
assigned a shared responsibility; but the responsibility of the named fiduciary
giving the directions shall be deemed such person's sole responsibility, and the
responsibility of the named fiduciary receiving those directions shall be to
follow them insofar as such instructions are not expressly contrary to
applicable law.
<PAGE>
10.9 Payment of Expenses
All expenses of administration of this Plan shall be paid out of the Trust Fund
unless paid by the Employer. Such expenses shall include any expenses incident
to the functioning of the Administrative Committee, including, but not limited
to, fees of accountants, counsel, and other specialists, and other costs of
administering this Plan. Until paid, the expenses shall constitute a liability
of the Trust Fund. However, the Employer may reimburse the Trust for any such
expenses and a reimbursement shall not be considered a contribution to this
Plan.
10.10 Filing a Claim for Benefits
If a Member or Beneficiary does not receive the benefits which he believes he is
entitled to receive under the Plan, he may file a claim for benefits with the
Administrative Committee. All claims shall be made in writing and shall be
signed by the claimant. If the claimant does not furnish sufficient information
to determine the validity of the claim, the Administrative Committee shall
indicate to the claimant any additional information which is required.
10.11 Appeals from Denial of Claims
If any claim for benefits under the Plan is wholly or partially denied, the
claimant shall be given notice in writing of such denial within 60 days setting
forth the following information:
(a) the specific reason or reasons for the denial;
(b) specific reference to pertinent Plan provisions on which 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;
(d) an explanation that a full and fair review by the Administrative Committee
of the decision denying the claim may be requested by the claimant or his
authorized representative by filing with the Administrative Committee,
within 60 days after such notice has been received, a written request for
such review; and
(e) if such request is so filed, the claimant or his authorized representative
may review pertinent documents and submit issues and comments in writing
within the same 60 day period specified in subsection (d) above.
The decision of the Administrative Committee shall be made promptly, and not
later than 60 days after the Administrative Committee's receipt of the request
for review, unless special circumstances require an extension of time for
processing, in which case the claimant shall be so notified and a decision shall
be rendered as soon as possible, but not later than 120 days after receipt of
the request for review.
<PAGE>
The claimant shall be given a copy of the decision promptly. The decision 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. The final decision
of the Administrative Committee shall be conclusive and binding on all having or
claiming to have an interest in the claim being reviewed and shall not be
reversed by any court unless the court shall find that the Administrative
Committee's decision was arbitrary and capricious.
10.12 Indemnity for Liability
The Employer shall indemnify the members of the Administrative Committee, and
each other fiduciary who is or was an Employee of the Employer, against any and
all claims, losses, damages, expenses, including counsel fees, incurred by said
fiduciaries and any liability, including any amounts paid in settlement with
approval of the Employer and the fiduciary, arising from the fiduciary's action
or failure to act in connection with said fiduciary's responsibility under this
Plan except when the same is judicially determined to be attributable to the
gross negligence or willful misconduct of such fiduciary.
10.13 Conflicts
No member of the Administrative Committee shall participate in any determination
by the Administrative Committee of his rights or benefits under the Plan; and,
in the event that the majority of the remaining members of the Administrative
Committee are unable to come to a determination of any such question, the same
shall be determined by the Chief Executive Officer of the Sponsor, acting ex
officio.
10.14 Reliance on Information
The Plan Administrator and the Administrative Committee may rely absolutely upon
all information furnished by the Employers or any Member, provided such
information is received and accepted by the Plan Administrator or the
Administrative Committee in good faith as true and accurate. The Plan
Administrator or Administrative Committee may similarly rely on information
furnished by anyone employed in good faith by the Employer or by the Trustee for
the purpose for furnishing such information.
10.15 Beneficiary Designation
(a) Each unmarried Member may designate a Beneficiary or Beneficiaries under
the Plan. He may, from time to time during his lifetime, on a form approved
by and filed with the Plan Administrator, change his Beneficiary or
Beneficiaries. A Member's marriage shall automatically revoke any prior
Beneficiary designation.
(b) The Beneficiary of each Member who is married shall automatically be the
surviving spouse of such Member, unless such spouse had consented in
writing to the designation of another Beneficiary or Beneficiaries. Each
married Member may, from time to time, change his designation of a
Beneficiary or Beneficiaries; provided, however, that the Member may not
change such designation without the written consent of his spouse. Any such
written consent must satisfy the requirements of Section 10.15(e).
<PAGE>
(c) The Beneficiary or Beneficiaries of a Member shall receive the benefits
payable under the Plan in the event of the Member's death. All Beneficiary
designations, and the written consents provided for in Section 10.15(b),
shall be on such form or forms as may be prescribed by the Plan
Administrator. No Beneficiary designation shall be effective for any
purpose until it has been filed with the Plan Administrator during the
lifetime of the Member. On each Beneficiary designation, the Member shall
name a primary Beneficiary or Beneficiaries and may name a contingent
Beneficiary or Beneficiaries.
(d) In the event that a Member fails to designate a Beneficiary or
Beneficiaries, or if for any reason such designation shall be legally
ineffective, or if all designated Beneficiaries predecease him or die
simultaneously with him, distribution shall be made to the executor or
administrator of the Member's estate.
(e) The written consent described in Section 10.15(b) shall not be effective
unless (i) the spouse has consented in writing to the designation of
another Beneficiary or Beneficiaries, (ii) such designation designates
another Beneficiary or Beneficiaries (or a form of benefits) which may not
be changed without written spousal consent (or the consent of the spouse
expressly permits designations by the Member without any requirement of
further consent by the spouse), and (iii) the spouse's consent acknowledges
the effect of such designation and is witnessed by a Plan representative or
a notary public. Such consent shall not be required if the Member
establishes to the satisfaction of the Plan Administrator that such consent
may not be obtained because there is no spouse, because the spouse cannot
be located or because of such other circumstances as the Secretary of the
Treasury may prescribe by regulation.
10.16 Incompetency
Every person receiving or claiming benefits under the Plan shall be conclusively
presumed to be mentally competent until the date on which the Plan Administrator
receives a written notice, in a form and manner acceptable to it, that such
person is incompetent, for whom a guardian or other person legally vested with
the care of his estate has been appointed; provided, however, that if the Plan
Administrator shall find that any person to whom a benefit is payable under the
Plan is unable to care for his affairs because of any disability or infirmity,
any payment due (unless a prior claim therefor shall have been made by a duly
appointed legal representative of his estate) may be paid to the spouse, a
child, a parent, or a brother or sister. Any such payment so made shall be a
complete discharge of any liability therefor under the Plan. In the event a
guardian of the estate of any person receiving or claiming benefits under the
Plan shall be appointed by a court of competent jurisdiction, benefit payments
may be made to such guardian provided that proper proof of appointment and
continuing qualification is furnished in a form and manner acceptable to the
Plan Administrator. Any such payment so made shall be a complete discharge of
any liability therefor under the Plan.
<PAGE>
10.17 Information and Data for Benefits
All persons claiming benefits from the Plan must furnish to the Plan
Administrator, such documents, evidence, or information as the Plan
Administrator considers necessary or desirable for the purpose of administering
the Plan; and each such person must furnish such information promptly and sign
such documents as the Plan Administrator may reasonably require before any
benefits become payable from the Plan.
10.18 Missing Members or Beneficiaries
Each Member and each designated Beneficiary must file with the Plan
Administrator, from time to time, in writing, such person's post office address
and each change of post office address. Any communication, statement or notice
addressed to a Member or designated Beneficiary at the last post office address
of such person filed with the Plan Administrator or, if no address is filed with
the Plan Administrator, then, in the case of a Member, at the last post office
address of the Member as shown on the Employers' records, will be binding on the
Member and the designated Beneficiary of such person for all purposes of the
Plan. None of the Employers, the Plan Administrator or the Trustee will be
required to search for or locate a Member or designated Beneficiary. In the
event that a Member or designated Beneficiary cannot be located for a period of
two years from the Member's termination of employment as an Employee, the
Member's Account will be allocated among and credited to Accounts of Eligible
Employees (who are eligible to receive a Discretionary Employer Contribution as
provided in Section 3.4) in the same manner as Discretionary Employer
Contributions are allocated pursuant to Section 4.5; provided, however, that
such Account shall be reinstated if and when a claim for the forfeited amount is
subsequently made by the person entitled to payment or if the Plan Administrator
receives proof of death of such person satisfactory to the Plan Administrator.
10.19 No Enlargement of Employee Rights
Nothing contained in this Plan shall give any Employee the right to be retained
in the service of an Employer or to interfere with the right of an Employer to
discipline, discharge or retire any Employee at any time.
10.20 Applicable Law
The Plan and all rights hereunder shall be governed by and construed according
to the laws of the State of Oklahoma to the extent such laws have not been
preempted by applicable Federal laws.
10.21 Internal Revenue Service Approval
It is the intention of the Sponsor to obtain a ruling or rulings by the District
Director of the Internal Revenue Service that the Plan, as in effect from time
to time, with respect to all Employers, meets the requirements of Code section
401(a).
<PAGE>
Severability
If a provision of the Plan shall be held illegal or invalid, the illegality or
invalidity shall not affect the remaining parts of the Plan and the Plan shall
be construed and enforced as if the illegal or invalid provision had not been
included in the Plan.
<PAGE>
Article 11. Trust Fund and Trustee
11.1 Establishment of Trust Fund
The Sponsor has entered into a Trust Agreement with the Trustee in order to
implement and carry out the provisions of the Plan and to finance the benefits
provided for under the Plan. The Sponsor may amend or modify the Trust Agreement
in accordance with the terms of the Trust Agreement from time to time to
accomplish the purposes of the Plan. Pursuant to the Trust Agreement, a Trust
Fund was created and is to be maintained to carry out the purposes of the Plan,
and the funds held as part of the Trust Fund are to be invested in accordance
with the terms of the Trust Agreement and, where applicable, the Plan. The
declaration of trust created under the Trust Agreement forms a part of the Plan.
The Employers shall make such Contributions to the Trust Fund as are required by
the provisions of the Plan, subject to the right of the Sponsor to amend, modify
or terminate the Plan at any time, and all benefits under the Plan shall be paid
from the Trust Fund. All rights which may accrue to any Member, Beneficiary or
other person under the Plan shall be subject to all the terms and provisions of
the Plan and Trust Agreement.
11.2 Trustee
The Trustee of the Trust Fund shall be the Trustee provided for under the Plan
and the Trust Agreement as in effect from time to time, or any trust instrument
substituted for such Trust Agreement. The Trustee's obligations, duties and
responsibilities shall be governed by the terms of the Trust Agreement, or such
other trust instrument as may be in effect, and, where applicable, by the terms
of the Plan.
11.3 Rights in the Trust Fund
Members or any other person eligible for or claiming benefits under the Plan
shall be entitled to look only to the Trust Fund for the payment of such
benefits and shall have no claim against any Employer, the Plan Administrator or
any other person. No person shall have any right or interest in the Trust Fund
except as expressly provided in the Plan. Except to the extent, if any, that
Section 410 of ERISA may otherwise require, in no event shall the Employers, or
any of their officers, directors, or Employees be liable in their individual
capacities to any person whomsoever, under the provisions of the Plan or Trust
Agreement.
<PAGE>
11.4 Nonreversion; Exclusive Benefit
The Trust Fund shall be used and applied only in accordance with the provisions
of the Plan and Trust Agreement, to provide the benefits provided under the
Plan. No Employers shall have any right, title or interest in the assets of the
Trust Fund, and no part of the corpus or income of the Trust Fund shall be used
for, or diverted to, purposes other than for the exclusive benefit of Members
and their Beneficiaries and for the payment of the reasonable expenses of
administering the Plan and Trust, except that if Contributions are made to the
Trust Fund by an Employer by a mistake of fact, then such Contributions may be
returned to such Employer within one year after the payment of such
Contributions; and if any part or all of the Contributions are disallowed as a
deduction under Code section 404, then to the extent such Contributions are
disallowed as a deduction they may be returned to such Employer within one year
after the disallowance; provided, however, that any earnings attributable to
Contributions made by mistake of fact or disallowed as a deduction under Code
section 404 shall not be returned to the Employer, but losses attributable
thereto must reduce the amount returned.
11.5 Nonalienation
Except as provided in Code section 401(a)(13), neither benefits payable at any
time under the Plan nor the corpus or income of the Trust Fund shall be subject
in any manner to alienation, sale, transfer, assignment, pledge, attachment,
garnishment, or encumbrance of any kind. Any attempt to alienate, sell,
transfer, assign, pledge, or otherwise encumber any such benefit, whether
presently or thereafter payable, shall be void. No benefit nor the Trust Fund
shall in any manner be liable for or subject to the debts or liabilities of any
Member or of any other person entitled to any benefit. The Plan Administrator
shall establish procedures to determine whether domestic relations orders are
"qualified domestic relations orders" and to administer distributions under such
qualified domestic relations orders.
11.6 Merger, Consolidation or Transfer
In the case of any merger or consolidation of the Plan with, or in the case of
any transfer of assets or liabilities of the Plan to or from, any other plan,
each Member shall receive a benefit immediately after the merger, consolidation,
or transfer (if the Plan had then terminated) 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 had then terminated).
<PAGE>
Article 12. Amendment and Termination
12.1 Amendment and Termination
(a) Except as provided in Section 12.2(d), the Sponsor does hereby expressly
and specifically reserve the sole and exclusive right at any time by action
of the Board of Directors (or any designated officer of the Sponsor
pursuant to the Board of Directors delegation) to amend, modify, or
terminate the Plan. The Sponsor's right of amendment, modification, or
termination shall not be subject to the consent or concurrence of any other
Employer, the Trustee, any Member or any other interested party, nor shall
such right be subject to any action by any other Employer notwithstanding
that such action by the Sponsor may relate in whole or in part to persons
in the employ of such Employer.
(b) While each Employer contemplates carrying out the provisions of the Plan
indefinitely with respect to its Employees, no Employer shall be under any
obligation or liability whatsoever to maintain the Plan for any minimum or
other period of time.
(c) Any action taken to amend, modify or terminate the Plan shall be evidenced
by a written instrument duly executed and/or certified by an officer of the
Sponsor. Any such instrument evidencing an amendment to the Plan shall be
delivered by the Sponsor to the Plan Administrator, the Trustee and each
other Employer.
(d) Upon any termination of the Plan in its entirety, or with respect to any
Employer, the Sponsor shall give written notice thereof to the Plan
Administrator, the Trustee, and any Employer involved.
(e) Except as provided by law, upon any termination of the Plan, no Employer
with respect to whom the Plan is terminated (including the Sponsor) shall
thereafter be under any obligation, liability, or responsibility whatsoever
to make any contribution or payment to the Trust Fund, the Plan, any Member
or any other person, trust or fund whatsoever, for any purpose whatsoever
under or in connection with the Plan.
(f) In the event the Plan is terminated, the Plan is partially terminated or
Contributions under the Plan are completely discontinued, the rights of all
Members (or in the case of a partial termination, the Members affected
thereby) to the amounts credited to their Accounts shall continue to be
fully vested and nonforfeitable.
12.2 Limitations on Amendments
The provisions of this Article 12 relating to amendments shall be subject to and
limited by the following restrictions:
<PAGE>
(a) No amendment shall operate either directly or indirectly to give any
Employer any interest whatsoever in any funds or property held by the
Trustee under the terms the Plan, or to permit the corpus or income of the
Trust to be used for or diverted to purposes other than the exclusive
benefit of Members or the payment of the reasonable expenses of
administering the Plan.
(b) No such amendment shall operate either directly or indirectly to deprive
any Member of his vested and nonforfeitable interest as of the time of such
amendment.
(c) No amendment shall change the rights, duties or responsibilities of the
Trustee under the Plan without its written consent.
(d) Subject to the foregoing limits, the Plan Administrator shall have the
authority to amend the Plan (either retroactively or prospectively) as it
deems necessary or advisable with respect to the operation and
administration of the Plan that is within the scope of the responsibility
and authority of the Plan Administrator as established in Article 10,
including any modification or amendments necessary to comply with any laws
or regulations to qualify as a tax-exempt Plan and Trust. The Plan
Administrator shall not have the authority to amend the principal design
characteristics of the Plan, such authority being exclusively reserved to
the Board of Directors.
12.3 Effect of Bankruptcy and Other Contingencies Affecting an Employer
In the event an Employer terminates its participation in the Plan, or in the
event an Employer is dissolved, liquidated, or shall by appropriate legal
proceedings be adjudged a bankrupt, or in the event judicial proceedings of any
kind result in the involuntary dissolution of an Employer, participation in the
Plan shall be terminated with respect to such Employer. The merger,
consolidation, or reorganization of an Employer, or the sale by it of all or
substantially all of its assets, shall not terminate the Plan if there is
delivery to such Employer by the Employer's successor or by the purchaser of all
or substantially all of the Employer's assets, of a written instrument
requesting that the successor or purchaser be substituted for the Employer and
agreeing to perform all the provisions hereof which such Employer is required to
perform. Upon the receipt of said instrument, with the approval of the Sponsor,
the successor or the purchaser shall be substituted for such Employer under the
Plan, and such Employer shall be relieved and released from any obligations of
any kind, character, or description herein or in any Trust Agreement imposed
upon it.
12.4 Distributions on Plan Termination
In the event of the termination of the Plan in its entirety, or with respect to
any Employer, the Sponsor may prescribe, or instruct the Plan Administrator to
prescribe, a method for making distributions from the Plan following such
termination. Such method of distribution may provide for termination
distributions to be made as soon as practicable following such termination, and
may permit the Members to elect the form and method of their distributions. If
such termination distributions are not provided for, distributions and payments
shall be made to Members in accordance with the provisions of Article 7. In any
such case, the Plan Administrator shall instruct the Trustee as to the making of
Plan distributions following any such Plan termination.
<PAGE>
Article 13. Participation In and Withdrawal From the Plan by an Employer
13.1 Participation in the Plan
Any Affiliate which desires to become a participating Employer under the Plan
may elect to become a party to the Plan and Trust Fund by adopting the Plan for
the benefit of its Eligible Employees, effective as of the date specified in
such adoption instrument, by filing with the Plan Administrator a certified copy
of a resolution of its board of directors (or equivalent governing authority) to
that effect, and such other instruments as the Plan Administrator may require.
The adoption resolution or decision may contain such specific changes and
variations in Plan or Trust Agreement terms and provisions applicable to such
adopting Employer and its Employees as may be acceptable to the Plan
Administrator and the Trustee. The adoption resolution or decision shall become,
as to such adopting organization and its employees, a part of this Plan as then
amended or thereafter amended and the related Trust Agreement. It shall not be
necessary for the adopting organization to sign or execute the original Plan and
Trust Agreement documents. The coverage date of the Plan for any such adopting
organization shall be that stated in the resolution or decision of adoption, and
from and after such effective date, such adopting organization shall assume all
the rights, obligations, and liabilities of an Employer hereunder and under the
Trust Agreement. The control of the Sponsor (including the right to amend or
terminate the Plan and the Trust Agreement) and the administrative powers of the
Plan Administrator, as provided in the Plan and Trust Agreement, shall not be
diminished by reason of the participation in the Plan of any adopting Employer.
13.2 Withdrawal from the Plan
Any Employer, other than the Sponsor, by action of its board of directors or
other governing body, may elect to withdraw from the Plan and Trust Agreement by
giving 90 days' advance written notice of its election to the Plan
Administrator, unless the Plan Administrator waives such advance notice or
agrees to a shorter advance notice period. Distributions following such
withdrawal may be implemented through continuation of the Trust Fund, or
transfer to another trust fund exempt from tax under Code section 501, or to a
group annuity contract qualified under Code section 401, or distributions may be
made as immediate distributions in accordance with the directions of the Plan
Administrator; provided, however, that no such action shall direct any part of
the Trust Fund relating to the Participants of such Employer to any purpose
other than the exclusive benefit of the Participants of such Employer, or the
surviving spouses or Beneficiaries of such Participants, prior to the
satisfaction of all benefit liabilities under the Plan with respect to the
Participants of such Employer.
<PAGE>
Article 14. Top-Heavy Provisions
14.1 Application of Top-Heavy Provisions
(a) Single Plan Determination. Except as provided in Section 14.1(b)(2), if as
of a Determination Date, the sum of the amount of the Section 416 Accounts
of Key Employees and the Beneficiaries of deceased Key Employees exceeds 60
percent of the amount of the Section 416 Accounts of all Members and
Beneficiaries (excluding former Key Employees), the Plan is top-heavy and
the provisions of this Article 14 shall become applicable.
(b) Aggregation Group Determination.
(1) If as of a Determination Date the Plan is part of an Aggregation Group
which is top-heavy, the provisions of this Article 14 shall become
applicable. Top-heaviness for the purpose of this Section 14.1(b)(1)
shall be determined with respect to the Aggregation Group in the same
manner as described in Section 14.1(a).
(2) If the Plan is top-heavy under Section 14.1(a), but the Aggregation
Group is not top-heavy, the Plan shall not be top-heavy and this
Article 14 shall not be applicable.
(c) Plan Administrator. The Plan Administrator shall have responsibility to
make all calculations to determine whether the Plan is top-heavy.
14.2 Definitions
(a) "Aggregation Group" means the Plan and all other plans maintained by the
Employers and Affiliates which cover a Key Employee and any other plan
which enables a plan covering a Key Employee to meet the requirements of
Code section 401(a)(4) or 410. In addition, at the election of the Plan
Administrator, the Aggregation Group may be expanded to include any other
qualified plan maintained by an Employer or Affiliate if such expanded
Aggregation Group meets the requirements of Code sections 401(a)(4) and
410.
(b) "Determination Date" means the last day of the Plan Year immediately
preceding the Plan Year for which top-heaviness is to be determined or, in
the case of the first Plan Year of a new plan, the last day of such Plan
Year.
(c) "Key Employee" means a Member who for the Plan Year containing the
Determination Date or any of the four preceding Plan Years is-
(1) An officer of an Employer or Affiliate who has annual Compensation
greater than 50 percent of the amount in effect under Code section
415(b)(1)(A) for such Plan Year; provided, however, that no more than
the lesser of-
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(A) 50 Employees, or
(B) the greater of (i) three Employees or (ii) 10 percent of all
Employees, shall be treated as officers, and such officers shall
be those with the highest annual Compensation in the five-year
period;
(2) One of the ten Employees having annual Compensation from all Employers
and Affiliates for such Plan Year greater than the dollar limit
specified in Code section 415(c)(1)(A) and owning both more than a
one-half of 1 percent interest and the largest interests in an
Employer or Affiliate;
(3) A 5 percent owner of an Employer or Affiliate; or
(4) A 1 percent owner of an Employer or Affiliate having annual
Compensation of more than $150,000.
Ownership shall be determined in accordance with Code section 416(i)(1)(B)
and (C). For purposes of Section 14.2(c)(2), if two Employees have the same
ownership interest in an Employer or Affiliate, the Employee having the
greater annual Compensation from the Employers and Affiliates shall be
treated as having a larger interest.
(d) "Section 416 Account" means-
(1) The amount credited as of a Determination Date to a Member's or
Beneficiary's account, under the Plan and under any other qualified
defined contribution plan which is part of an Aggregation Group
(including amounts to be credited as of the Determination Date but
which have not yet been contributed);
(2) The present value of the accrued benefit credited to a Member or
Beneficiary under a qualified defined benefit plan which is part of an
Aggregation Group; and
(3) The amount of distributions to the Member or Beneficiary during the
five-year period ending on the Determination Date other than a
distribution which is a tax-free rollover contribution (or similar
transfer) that is not initiated by the Member or that is contributed
to a plan which is maintained by an Employer or Affiliate; reduced by-
(4) The amount of rollover contributions (or similar transfers) and
earnings thereon credited as of a Determination Date under a plan
forming part of an Aggregation Group which is attributable to a
rollover contribution (or similar transfer) accepted after
December 31, 1983, initiated by the Member and derived from a plan not
maintained by an Employer or Affiliate.
<PAGE>
The account of a Member who was a Key Employee and who subsequently meets
none of the conditions of Section 14.2(c) for the Plan Year containing the
Determination Date is not a Section 416 Account and shall be excluded from
all computations under this Article 14. Furthermore, if a Member has not
performed any services for an Employer or Affiliate during the five year
period ending on the Determination Date, any account of such Member (and
any accrued benefit for such Member) shall not be taken into account in
computing top-heaviness under this Article 14.
14.3 Minimum Contribution
(a) General. If the Plan is determined to be top-heavy under the provisions of
Section 14.1 with respect to a Plan Year, the sum of employer contributions
(including contributions under a salary reduction agreement) and
forfeitures under all qualified defined contribution plans allocated to the
accounts of each Member in the Aggregation Group who is not a Key Employee
(determined without regard to whether such Member completed any minimum
Period of Service or made Before-Tax Contributions for such Plan Year) and
is an Employee on the last day of the Plan Year shall not be less than 3
percent of such Member's Compensation. This Section 14.3 shall not be
applicable with respect to a Member who is also covered under a defined
benefit plan maintained by an Employer or an Affiliate which provides the
benefit specified by Code section 416(c)(1).
(b) Exception. The contribution rate specified in Section 14.3(a) shall not
exceed the percentage at which employer contributions and forfeitures are
allocated under the plans of the Aggregation Group to the account of the
Key Employee for whom such percentage is the highest for the Plan Year. For
the purpose of this Section 14.3(b), the percentage for each Key Employee
shall be determined by dividing the employer contributions and forfeitures
for the Key Employee by the amount of his total Compensation for the year.
14.4 Limit on Annual Additions: Combined Plan Limit
(a) General. If the Plan is determined to be top-heavy under Section 14.1,
Section 8.4 of the Plan shall be applied by substituting 1.0 for 1.25 in
applying the provisions of Code section 415(e)(2) and (e)(3). The
transitional rule of Code section 415(e)(6)(B)(i) shall be applied by
substituting "$41,500" for "$51,875."
(b) Exception. Section 14.4(a) shall not be applicable if-
(1) Section 14.3 is applied by substituting "4 percent" for "3 percent,"
and
(2) the Plan would not be top-heavy if "90 percent" is substituted for "60
percent" in Section 14.1.
<PAGE>
(c) Transitional Rule. If, but for this Section 14.4(c), Section 14.4(a) would
begin to apply with respect to the Plan, the application of Section 14.4(a)
shall be suspended with respect to a Member so long as there are-
(1) no employer contributions, forfeitures, or voluntary nondeductible
contributions allocated to such Member, and
(2) no accruals under a qualified defined benefit plan for such Member.
14.5 Top Heavy Vesting
If the Plan is determined to be top-heavy under the provisions of Section 14.1
with respect to a Plan Year, then effective as of the first day of such Plan
Year, a Member's vested interest in his Matching Contributions Account and
Discretionary Employer Contributions Account shall be fully vested and
nonforfeitable after three Years of Service. The vesting requirements of this
Section 14.5 shall not apply to a Member who does not have an Hour of Service
after the Plan becomes top-heavy. If in a subsequent Plan Year the Plan is no
longer top-heavy, the five Years of Service vesting requirement shall be
reinstated; provided, however, that any portion of a Member-s Account that
vested prior to the time of the Plan was no longer top-heavy shall remain
vested.
14.6 Collective Bargaining Agreements
The requirements of Section 14.3 shall not apply with respect to any Employee
included in a unit of Employees covered by a collective bargaining agreement
between Employee representatives and an Employer or Affiliate if retirement
benefits were the subject of good faith bargaining between such Employee
representatives and such Employer or Affiliate.
<PAGE>
In Witness Whereof, Bank of Oklahoma, N.A. has caused this instrument to be
executed by its duly authorized officers effective as of the 1st day of
January 1999.
Bank of Oklahoma, N.A.
ATTEST: BY /s/ Gerald L. Hollingsworth
---------------------------
Gerald L. Hollingsworth
Vice President,
Manager of Compensation and Benefits
BY /s/ Frederic Dorwart
---------------------------
Frederic Dorwart
Secretary
Legal Counsel
