<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 23, 1998
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
ZEBRA TECHNOLOGIES CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 36-2675536
(State or other jurisdiction of (IRS Employer Identification
of incorporation or organization) Number)
333 CORPORATE WOODS PARKWAY, VERNON HILLS, ILLINOIS 60061-3109, (847) 634-6700
(Address of Principal Executive Offices including Zip Code)
ZEBRA TECHNOLOGIES CORPORATION PROFIT SHARING AND SAVINGS PLAN
(Full title of plans)
EDWARD L. KAPLAN
333 CORPORATE WOODS PARKWAY, VERNON HILLS, ILLINOIS 60061-3109, (847) 634-6700
(Name, address and telephone number of agent for service)
COPIES TO:
MATTHEW S. BROWN, ESQ.
KATTEN MUCHIN & ZAVIS
525 WEST MONROE STREET, SUITE 1600
CHICAGO, ILLINOIS 60661-3693
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered(1) per share(3) offering price(3) registration fee
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, 75,000 shares $38.2375 $2,867,813 $847.00
$.01 par value (2). . .
- ----------------------------------------------------------------------------------------------
</TABLE>
(1) Includes an indeterminate number of shares of Zebra Technologies
Corporation Class A Common Stock that may be issuable by reason of stock
splits, stock dividends or similar transactions.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of plan
interests to be offered or sold pursuant to the Zebra Technologies
Corporation Profit Sharing and Savings Plan.
(3) The amounts are based upon the high and low sales prices of Zebra
Technologies Corporation Class A Common Stock as reported on the Nasdaq
National Market on July 22, 1998 and are used solely for the purpose of
calculating the registration fee pursuant to Rule 457 under the Securities
Act of 1933.
<PAGE>
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The information called for in Part I of Form S-8 is currently included in
the prospectus for the Zebra Technologies Corporation Profit Sharing and Savings
Plan (the "Plan") and is not being filed with or included in this Form S-8 in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Zebra Technologies Corporation
(the "Company") with the Commission under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and are incorporated in this Registration
Statement by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
April 4, 1998.
3. The description of the Company's Class A Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission
on July 15, 1991 pursuant to Section 12 of the Exchange Act and all
amendments thereto and reports filed for the purpose of updating such
description.
4. The Annual Report on Form 11-K of the Plan, filed with the Commission
on July 10, 1998.
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, subsequent to the date hereof and prior
to the filing of a post-effective amendment indicating that all securities
offered pursuant to this Registration Statement have been sold or deregistering
all such securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Nine of the Registrant's Certificate of Incorporation, as amended,
provides that the Registrant shall indemnify its directors to the full extent
permitted by the Delaware General Corporation Law and may indemnify its officers
to such extent, except that the Company shall not be obligated to indemnify any
such person (i) with respect to proceedings, claims or actions initiated or
brought voluntarily by any such person and not by way of defense, or (ii) for
any amounts paid in settlement of an action indemnified against by the Company
without the prior written consent of the Company. With the approval of its
stockholders, the Company has entered into indemnity agreements with each of its
directors and certain of its officers. These agreements may require the
Company, among other things, to indemnify such officers and directors against
certain liabilities that may arise by reason of their status or service as
directors or officers, to advance expenses to them as they are incurred,
provided that they undertake to repay the amount advanced if it is ultimately
determined by a court that they are not entitled
II-1
<PAGE>
to indemnification, and to obtain directors' and officers' liability
insurance if available on reasonable terms.
In addition, Article Eight of the Registrant's Certificate of
Incorporation, as amended, provides that a director of the Registrant shall not
be personally liable to the Registrant or its stockholders for monetary damages
for breach of his or her fiduciary duty as a director, except for liability
(i) for any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the General Corporation Law of the State of Delaware, or (iv) for any
transaction from which the director derives an improper personal benefit.
Reference is made to Section 145 of the General Corporation Law of the
State of Delaware which provides for indemnification of directors and officers
in certain circumstances.
The Company has an insurance policy which entitles the Company to be
reimbursed for certain indemnity payments it is required or permitted to make to
its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Zebra Technologies Corporation Profit Sharing and Savings Plan,
Amended and Restated effective January 1, 1989.
4.2 Amendment No. 1 to the Amended and Restated Zebra Technologies
Corporation Profit Sharing and Savings Plan.
4.3 Amendment No. 2 to the Amended and Restated Zebra Technologies
Corporation Profit Sharing and Savings Plan.
4.4 Amendment No. 3 to the Amended and Restated Zebra Technologies
Corporation Profit Sharing and Savings Plan.
4.5 Amendment No. 4 to the Amended and Restated Zebra Technologies
Corporation Profit Sharing and Savings Plan.
4.6 Amendment No. 5 to the Amended and Restated Zebra Technologies
Corporation Profit Sharing and Savings Plan.
4.7 Amendment No. 6 to the Amended and Restated Zebra Technologies
Corporation Profit Sharing and Savings Plan.
4.8 Amendment No. 7 to the Amended and Restated Zebra Technologies
Corporation Profit Sharing and Savings Plan.
4.9 Amendment No. 8 to the Amended and Restated Zebra Technologies
Corporation Profit Sharing and Savings Plan.
II-2
<PAGE>
4.10 Amendment No. 9 to the Amended and Restated Zebra Technologies
Corporation Profit Sharing and Savings Plan.
4.11 Certificate of Incorporation of the Company, as amended, filed as
an Exhibit to the Company's Registration Statement on Form S-3,
File No. 333-33315, and incorporated herein by reference.
4.12 Bylaws of the Company, filed as an Exhibit to the Company's
Registration Statement on Form S-1, File No. 33-41576, and
incorporated herein by reference.
4.13 Amendment to Bylaws of the Registrant, filed as an Exhibit to the
Company's 1992 Annual Report on Form 10-K, and incorporated herein
by reference.
4.14 Specimen stock certificate representing Class A Common Stock, filed
as an Exhibit to the Company's Registration Statement on Form S-1,
File No. 33-41576, and incorporated herein by reference.
15 Letter re unaudited interim financial information.
23.1 Consent of KPMG Peat Marwick LLP with respect to the Company's
consolidated financial statements.
23.2 Consent of KPMG Peat Marwick LLP with respect to the Plan's
financial statements.
24 Power of Attorney (included on the signature page of this
Registration Statement).
II-3
<PAGE>
ITEM 9. UNDERTAKINGS.
1. The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually, or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial BONA FIDE offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
2. The Company hereby undertakes that, for the purpose of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act or the
Plan's annual report pursuant to Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
BONA FIDE offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company and affiliated companies pursuant to the provisions
described in Item 6 above, or otherwise, the Company has been informed that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is therefore unenforceable. In the
event that a claim for indemnification against such
II-4
<PAGE>
liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Vernon Hills, State of Illinois, on this 21st day of
July, 1998.
ZEBRA TECHNOLOGIES CORPORATION
By: /s/ EDWARD L. KAPLAN
--------------------------------------
Edward L. Kaplan
CHIEF EXECUTIVE OFFICE AND CHAIRMAN
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Edward L. Kaplan, Charles R. Whitchurch, Matthew S. Brown and Marguerite M.
Elias, and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution, to sign on his behalf, individually and in each
capacity stated below, all amendments and post-effective amendments to this
Registration Statement on Form S-8 and to file the same, with all exhibits
thereto and any other documents in connection therewith, with the Securities and
Exchange Commission under the Securities Act of 1933, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as each might or could do in
person, hereby ratifying and confirming each act that said attorneys-in-fact and
agents may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on July 21, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
Chief Executive Officer (Principal
/s/ EDWARD L. KAPLAN Executive Officer) and Chairman July 21, 1998
- -------------------------------
Edward L. Kaplan
/s/ GERHARD CLESS Executive Vice President, Secretary and July 21, 1998
- ------------------------------- Director
Gerhard Cless
Chief Financial Officer and Treasurer
/s/ CHARLES R. WHITCHURCH (Principal Financial and Accounting Officer) July 21, 1998
- -------------------------------
Charles R. Whitchurch
/s/ CHRISTOPHER G. KNOWLES Director July 21, 1998
- -------------------------------
Christopher G. Knowles
/s/ DAVID P. RILEY Director July 21, 1998
- -------------------------------
David P. Riley
/s/ MICHAEL A. SMITH Director July 21, 1998
- -------------------------------
Michael A. Smith
</TABLE>
II-6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the trustees of
the Profit Sharing and Savings Plan have duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Vernon Hills, State of Illinois, on July 21, 1998.
ZEBRA TECHNOLOGIES CORPORATION
PROFIT SHARING AND SAVINGS PLAN
By: /s/ EDWARD L. KAPLAN
-------------------------------------------
Edward L. Kaplan,
as trustee of the Profit Sharing and Savings Plan
II-7
<PAGE>
INDEX TO EXHIBITS
SEQUENTIAL
EXHIBITS DESCRIPTION PAGE NO.
- --------------------------------------------------------------------------------
4.1 Zebra Technologies Corporation Profit Sharing and Savings
Plan, Amended and Restated effective January 1, 1989.
4.2 Amendment No. 1 to the Amended and Restated Zebra
Technologies Corporation Profit Sharing and Savings Plan.
4.3 Amendment No. 2 to the Amended and Restated Zebra
Technologies Corporation Profit Sharing and Savings Plan.
4.4 Amendment No. 3 to the Amended and Restated Zebra
Technologies Corporation Profit Sharing and Savings Plan.
4.5 Amendment No. 4 to the Amended and Restated Zebra
Technologies Corporation Profit Sharing and Savings Plan.
4.6 Amendment No. 5 to the Amended and Restated Zebra
Technologies Corporation Profit Sharing and Savings Plan.
4.7 Amendment No. 6 to the Amended and Restated Zebra
Technologies Corporation Profit Sharing and Savings Plan.
4.8 Amendment No. 7 to the Amended and Restated Zebra
Technologies Corporation Profit Sharing and Savings Plan.
4.9 Amendment No. 8 to the Amended and Restated Zebra
Technologies Corporation Profit Sharing and Savings Plan.
4.10 Amendment No. 9 to the Amended and Restated Zebra
Technologies Corporation Profit Sharing and Savings Plan.
4.11 Certificate of Incorporation of the Company, as amended,
filed as an Exhibit to the Company's Registration Statement
on Form S-3, File No. 333-33315, and incorporated herein
by reference.
4.12 Bylaws of the Company, filed as an Exhibit to the Company's
Registration Statement on Form S-1, File No. 33-41576, and
incorporated herein by reference.
4.13 Amendment to Bylaws of the Registrant, filed as an Exhibit
to the Company's 1992 Annual Report on Form 10-K and
incorporated herein by reference.
4.14 Specimen stock certificate representing Class A Common
Stock, filed as an Exhibit to the Company's Registration
Statement on Form S-1, File No. 33-41576, and incorporated
herein by reference.
15 Letter re unaudited interim financial information.
23.1 Consent of KPMG Peat Marwick LLP with respect to the
Company's consolidated financial statements.
23.2 Consent of KPMG Peat Marwick LLP with respect to the
Plan's financial statements.
24 Power of Attorney (included on the signature page of this
Registration Statement).
<PAGE>
ZEBRA TECHNOLOGIES CORPORATION
PROFIT SHARING AND SAVINGS PLAN
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I ESTABLISHMENT OF PLAN AND TRUST. . . . . . . . . . . . . . . . 2
1.1 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 The Plan and Trust . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II DEFINITION OF TERMS. . . . . . . . . . . . . . . . . . . . . . 2
2.1 Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(a) Profit Sharing Account. . . . . . . . . . . . . . . . . . . . 2
(b) Employer Matching Account . . . . . . . . . . . . . . . . . . 2
(c) Employee Savings Account. . . . . . . . . . . . . . . . . . . 2
2.2 Accounting Date. . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Accrued Benefit. . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.5 Aggregated Plans . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.6 Anniversary Date . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.7 Annual Addition. . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.8 Annual Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.9 Beneficiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.10 Break-In-Service . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.11 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.12 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.13 Deferred Vested Benefit. . . . . . . . . . . . . . . . . . . . . . 6
2.14 Determination Date . . . . . . . . . . . . . . . . . . . . . . . . 6
2.15 Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.16 Effective Date of Plan . . . . . . . . . . . . . . . . . . . . . . 6
2.17 Effective Date of 1989 Amendment and Restatement . . . . . . . . . 6
2.18 Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.19 Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.20 Employment Commencement Date . . . . . . . . . . . . . . . . . . . 6
2.21 Entry Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.22 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.23 Fiduciary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.24 Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.25 Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.26 Highly Compensated Employee. . . . . . . . . . . . . . . . . . . . 7
2.27 Hours of Service . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.28 Investment Manager . . . . . . . . . . . . . . . . . . . . . . . . 9
2.29 Key Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.30 Limitation Year. . . . . . . . . . . . . . . . . . . . . . . . . . 10
i
<PAGE>
2.31 Non-Key Employee . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.32 Normal Retirement Date . . . . . . . . . . . . . . . . . . . . . . 10
2.33 Participant. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.34 Period of Compensation . . . . . . . . . . . . . . . . . . . . . . 10
2.35 Plan Administrator . . . . . . . . . . . . . . . . . . . . . . . . 10
2.36 Plan Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.37 Re-employment Commencement Date. . . . . . . . . . . . . . . . . . 11
2.38 Super Top Heavy Plan . . . . . . . . . . . . . . . . . . . . . . . 11
2.39 Top Heavy Plan . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.40 Top Heavy Ratio. . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.41 Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.42 Valuation Date . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.43 Year of Service. . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III ELIGIBILITY REQUIREMENTS FOR PARTICIPATION IN THE PLAN . . . . 14
3.1 Eligibility Requirements . . . . . . . . . . . . . . . . . . . . . 14
3.2 Break-In-Service . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.3 Savings Agreement. . . . . . . . . . . . . . . . . . . . . . . . . 14
3.4 Admission to Plan. . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE IV CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . 16
4.1 Contribution Formula . . . . . . . . . . . . . . . . . . . . . . . 16
(a) Discretionary Profit Sharing Contributions. . . . . . . . . . 16
(b) Discretionary Matching Contributions. . . . . . . . . . . . . 16
(c) Required Contributions. . . . . . . . . . . . . . . . . . . . 16
(d) Discretionary Non-Elective Contributions. . . . . . . . . . . 16
4.2 Limitation on Amount of Annual Employer Contribution . . . . . . . 17
4.3 Voluntary Contributions by Participants. . . . . . . . . . . . . . 17
4.4 Rollovers and Transfers. . . . . . . . . . . . . . . . . . . . . . 18
4.5 Acceptance of Assets . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE V PARTICIPANT'S ACCOUNTS AND ADJUSTMENTS . . . . . . . . . . . . 19
5.1 Accounts for Participants. . . . . . . . . . . . . . . . . . . . . 19
5.2 Charges to Accounts. . . . . . . . . . . . . . . . . . . . . . . . 19
5.3 Adjusting the Value of the Trust . . . . . . . . . . . . . . . . . 19
5.4 Allocation of Employer Contributions . . . . . . . . . . . . . . . 19
(a) Profit Sharing Contributions and Forfeitures. . . . . . . . . 19
(b) Discretionary Non-Elective and Matching Contributions . . . . 20
(c) Required Contributions. . . . . . . . . . . . . . . . . . . . 21
(d) Minimum Allocation for Plan Years in which the Plan is
a Top Heavy Plan. . . . . . . . . . . . . . . . . . . . . . . 21
ii
<PAGE>
5.5 Crediting Participants' Voluntary Contributions. . . . . . . . . . 21
5.6 Limitation on Annual Additions . . . . . . . . . . . . . . . . . . 21
5.7 Combined Plan Limitation . . . . . . . . . . . . . . . . . . . . . 23
5.8 Combining of Plans . . . . . . . . . . . . . . . . . . . . . . . . 25
5.9 Limitation to Preclude Discrimination. . . . . . . . . . . . . . . 26
5.10 Limitation on Matching Contributions and Employee
Contributions to Preclude Discrimination . . . . . . . . . . . . . 28
5.11 Aggregate Limitation to Preclude Discrimination. . . . . . . . . . 31
ARTICLE VI VESTING. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.1 Normal Retirement. . . . . . . . . . . . . . . . . . . . . . . . . 32
6.2 Deferred (Late) Retirement . . . . . . . . . . . . . . . . . . . . 32
6.3 Disability Retirement Date . . . . . . . . . . . . . . . . . . . . 32
6.4 Death Benefit. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.5 Vesting of Participant's Voluntary Contributions . . . . . . . . . 33
6.6 Vesting of Employer Contributions on Other Terminations. . . . . . 33
6.7 Vesting Provisions Under an Amended Plan . . . . . . . . . . . . . 33
6.8 Determination of Years of Service. . . . . . . . . . . . . . . . . 34
6.9 Break-In-Service Rules . . . . . . . . . . . . . . . . . . . . . . 34
6.10 Forfeitures. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE VII DISTRIBUTION OF BENEFITS. . . . . . . . . . . . . . . . . . . . 35
7.1 Time for Payment . . . . . . . . . . . . . . . . . . . . . . . . . 35
(a) Normal Distribution . . . . . . . . . . . . . . . . . . . . . 35
(b) Required Distribution . . . . . . . . . . . . . . . . . . . . 36
7.2 Retroactive Payments . . . . . . . . . . . . . . . . . . . . . . . 36
7.3 Method of Payment. . . . . . . . . . . . . . . . . . . . . . . . . 37
7.4 Elections Revocable. . . . . . . . . . . . . . . . . . . . . . . . 37
7.5 Distributions Not in Excess of $3,500.00 . . . . . . . . . . . . . 37
7.6 Method of Payment of Death Benefit . . . . . . . . . . . . . . . . 37
7.7 Method of Payment - Voluntary Contributions and Rollovers. . . . . 37
7.8 Nature of Distribution . . . . . . . . . . . . . . . . . . . . . . 37
7.9 Distribution Without Severance From Service. . . . . . . . . . . . 38
(a) Deemed Immediate and Heavy Financial Need . . . . . . . . . . 38
(b) Deemed Necessary to Satisfy Financial Need. . . . . . . . . . 38
(c) Withdrawal From Other Accounts. . . . . . . . . . . . . . . . 39
(d) Spousal Consent Required. . . . . . . . . . . . . . . . . . . 39
(e) Withdrawal Charged to Participant's Account . . . . . . . . . 39
(f) Plan Administrator Establishes Rules. . . . . . . . . . . . . 39
7.10 Distribution to Persons Declared Legally Incompetent . . . . . . . 39
7.11 Missing Participants and Beneficiaries . . . . . . . . . . . . . . 40
iii
<PAGE>
ARTICLE VIII DESIGNATION OF BENEFICIARIES . . . . . . . . . . . . . . . . . 40
8.1 Designation of Beneficiaries . . . . . . . . . . . . . . . . . . . 40
8.2 Absence on Death of Beneficiaries. . . . . . . . . . . . . . . . . 40
ARTICLE IX FUNDING INVESTMENT POLICY. . . . . . . . . . . . . . . . . . . 41
ARTICLE X LOANS TO PARTICIPANTS. . . . . . . . . . . . . . . . . . . . . 41
10.1 Application for Loans. . . . . . . . . . . . . . . . . . . . . . . 41
10.2 Repayment of Loans . . . . . . . . . . . . . . . . . . . . . . . . 42
10.3 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
10.4 Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE XI FIDUCIARY CAPACITY AND RESPONSIBILITY. . . . . . . . . . . . . 43
11.1 General Fiduciary Standard of Conduct. . . . . . . . . . . . . . . 43
11.2 Prior Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
11.3 Investment Manager . . . . . . . . . . . . . . . . . . . . . . . . 43
11.4 Insurance and Indemnity. . . . . . . . . . . . . . . . . . . . . . 43
11.5 Disqualification from Fiduciary Service. . . . . . . . . . . . . . 43
11.6 Bonding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE XII THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . 43
12.1 Creation and Acceptance of Trust . . . . . . . . . . . . . . . . . 43
12.2 Trustee Capacity - Co-Trustees . . . . . . . . . . . . . . . . . . 44
12.3 Resignation and Removal - Appointment of Successor Trustee . . . . 44
12.4 Taxes, Expenses and Compensation of Trustee. . . . . . . . . . . . 44
12.5 Trustee Entitled to Consultation . . . . . . . . . . . . . . . . . 44
12.6 Rights, Powers and Duties of Trustee . . . . . . . . . . . . . . . 44
12.7 Investment Authority . . . . . . . . . . . . . . . . . . . . . . . 46
12.8 Employment of Investment Manager . . . . . . . . . . . . . . . . . 48
12.9 Trustee Indemnification. . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE XIII PLAN ADMINISTRATOR . . . . . . . . . . . . . . . . . . . . . . 48
13.1 Designation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
13.2 Committee Acting as Plan Administrator . . . . . . . . . . . . . . 49
13.3 Resignation and Removal; Appointment of Successor. . . . . . . . . 49
13.4 Duties and Responsibilities. . . . . . . . . . . . . . . . . . . . 49
13.5 Expenses and Compensation. . . . . . . . . . . . . . . . . . . . . 51
13.6 Plan Administrator Indemnification . . . . . . . . . . . . . . . . 51
ARTICLE XIV EMPLOYEE RIGHTS AND CLAIMS PROCEDURE . . . . . . . . . . . . . 51
14.1 Regular Reports and Disclosure Requirements. . . . . . . . . . . . 51
14.2 Information Generally Available. . . . . . . . . . . . . . . . . . 51
iv
<PAGE>
14.3 Benefit Statements . . . . . . . . . . . . . . . . . . . . . . . . 51
14.4 Claim Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . 52
14.5 Appeal of Denial of Claim. . . . . . . . . . . . . . . . . . . . . 52
ARTICLE XV AMENDMENT AND TERMINATION. . . . . . . . . . . . . . . . . . . 53
15.1 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
15.2 Voluntary Termination of Plan. . . . . . . . . . . . . . . . . . . 53
15.3 Involuntary Termination of Plan. . . . . . . . . . . . . . . . . . 53
15.4 Vesting Upon Termination . . . . . . . . . . . . . . . . . . . . . 53
15.5 Distribution on Termination. . . . . . . . . . . . . . . . . . . . 53
ARTICLE XVI PORTABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . 54
16.1 Continuance of the Plan by a Successor Corporation . . . . . . . . 54
16.2 Merger With Other Plan . . . . . . . . . . . . . . . . . . . . . . 54
16.3 Transfer to Other Qualified Plans. . . . . . . . . . . . . . . . . 54
ARTICLE XVII MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 55
17.1 Limited Reversion. . . . . . . . . . . . . . . . . . . . . . . . . 55
17.2 Execution of Receipts and Releases . . . . . . . . . . . . . . . . 55
17.3 Rights of Participants are Limited . . . . . . . . . . . . . . . . 55
17.4 Persons Dealing with Trustee Protected . . . . . . . . . . . . . . 56
17.5 No Alienation or Assignment. . . . . . . . . . . . . . . . . . . . 56
17.6 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
17.7 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . 56
17.8 Severability of Provisions . . . . . . . . . . . . . . . . . . . . 56
17.9 Gender and Number. . . . . . . . . . . . . . . . . . . . . . . . . 56
17.10 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE XVIII EXECUTION OF AGREEMENT . . . . . . . . . . . . . . . . . . . . 57
18.1 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
18.2 Acceptance by Trustee . . . . . . . . . . . . . . . . . . . . . . . 57
18.3 Acceptance by Plan Administrator. . . . . . . . . . . . . . . . . . 57
18.4 Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
</TABLE>
v
<PAGE>
ZEBRA TECHNOLOGIES CORPORATION
PROFIT SHARING AND SAVINGS PLAN
THIS AGREEMENT is made and executed at Vernon Hills, Illinois, this ____
day of ___________, 1992, by and between Zebra Technologies Corporation, and
Zebra International, Inc., corporations duly organized and existing under the
laws of the State of Delaware and having their principal office at Vernon
Hills, Illinois (hereinafter sometimes collectively referred to as "Employer"
or "The Employer"), and Edward Kaplan and Gerhard Cless, as Trustees
(hereinafter sometimes referred to as "Trustee" or "The Trustee").
WHEREAS, the Employer desires to amend and restate its profit sharing
plan and trust, with a cash or deferred arrangement, pursuant to the Internal
Revenue Code of 1986, as amended for the sole and exclusive benefit of its
eligible Employees (and their Beneficiaries) who qualify as Participants
hereunder in order to establish and secure for such Employees financial
protections against the contingencies of old age, total and permanent
disability and death, and to provide for such protection under a qualified
plan of deferred compensation (hereinafter sometimes referred to as
"Qualified Plan") pursuant to the applicable provisions of the Internal
Revenue Code; and
WHEREAS, the Board of Directors of the Employer, by resolutions duly
adopted on the ____ day of ___________, 1992, approved the amendment and
restatement of its profit sharing plan and trust, with a cash or deferred
arrangement, in the form hereinafter set forth and authorized and directed
execution of this Agreement by its duly authorized officers;
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings of the parties herein contained, and other good and valuable
considerations, it is hereby agreed as follows:
1
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ARTICLE I
ESTABLISHMENT OF PLAN AND TRUST
1.1 PREAMBLE. The preamble and recitals set forth above are hereby
incorporated into and made a part of this Agreement.
1.2 THE PLAN AND TRUST. This Agreement does hereby continue the plan
and trust previously known as the Zebra Technologies Corporation, Qwint Data
Inc. Profit Sharing and Savings Plan which shall hereafter be called the
Zebra Technologies Profit Sharing and Savings Plan (hereinafter sometimes
also referred to as "Plan", "Trust", or "Agreement").
ARTICLE II
DEFINITION OF TERMS
The following words and terms, as used in this Agreement, shall have the
respective meaning hereinafter set forth unless a different meaning is
clearly required by the context:
2.1 ACCOUNTS. Separate bookkeeping accounts shall be established and
maintained by the Plan Administrator for each Participant with respect to his
interest in the Trust as follows:
(a) PROFIT SHARING ACCOUNT:
An Account shall be established for each Participant's Accrued
Benefit with respect to his interest, if any, described under
subsections 4.1(a), 5.4(a) and 5.4(d).
(b) EMPLOYER MATCHING ACCOUNT:
An Account shall be established for each Participant's Accrued
Benefit with respect to his interest, if any, described under
subsections 4.1(b), 4.1(d) and 5.4(b).
(c) EMPLOYEE SAVINGS ACCOUNT:
An Account shall be established for each Participant's Accrued
Benefit with respect to his interest, if any, described under
subsection 4.1(c) and 5.4(c).
The Plan Administrator shall establish such additional Accounts as are
deemed necessary in order to properly administer the Plan and shall in no way
be limited to the above-described Accounts.
2
<PAGE>
2.2 ACCOUNTING DATE. Effective for Plan Years beginning on or after
January 1, 1992, the Accounting Date shall be the Anniversary Date, March 31,
June 30 and September 30 of each Plan Year. For Plan Years beginning on or
after January 1, 1990, but prior to January 1, 1992, the Accounting Dates
shall be the Anniversary Date and July 1. For Plan Years beginning prior to
January 1, 1990 the Accounting Date shall be May 31 and November 30, except
for the short Plan Year beginning on June 1, 1989 and ending on December 31,
1989, in which case the Accounting Dates shall be July 1 and December 31.
2.3 ACCRUED BENEFIT. As of any date of determination, Accrued Benefit
shall mean the balance of all the Participant's Accounts.
2.4 AFFILIATED COMPANY. Affiliated Company shall mean:
1. An entity which is:
(i) a member of a controlled group of corporations of which
the Employer is a member;
(ii) an unincorporated trade or business which is under
common control with the Employer;
(iii) a member of an affiliated service group of which the
Employer is a member, as defined in subsection 414(b),
414(c), and 414(m) of the Code, respectively; or
2. any other entity required to be aggregated with the Employer
pursuant to regulations under subsection 414(o) of the Code.
For purposes hereof, a "controlled group of corporations" shall mean a
controlled group of corporations as defined in subsection 1563(a) of the
Code, determined without reference to subsections 1563(a)(4) and (e)(3)(C) of
the Code, except that, with respect to the maximum limitations on Plan
benefits set forth in Article V of the Plan, the phrase "more than fifty
(50%) percent" shall be substituted for the phrase "at least eighty (80%)
percent" wherever such phrase appears in subsection 1563(a)(1) of the Code.
2.5 AGGREGATED PLANS. Aggregated plans shall mean either a Required
Aggregation Group or a Permissive Aggregation Group as hereinafter determined:
(a) REQUIRED AGGREGATION GROUP. Each plan of the Employer or an
Affiliated Company in which a Key Employee is a Participant or was a
Participant at any time during the determination period regardless of
whether the plan has been terminated, and each other plan of the
Employer or an Affiliated Company which enables any plan of the
Employer or an Affiliated Company in which a Key
3
<PAGE>
Employee is a Participant to meet the nondiscrimination and
participation requirements of subsection 401(a)(4) or section 410
of the Code respectively.
(b) PERMISSIVE AGGREGATION GROUP. All plans of the Employer or an
Affiliated Company included in the Required Aggregation Group and
any other plan or plans, maintained at any time during the
determination period regardless of whether the plan has been
terminated, of the Employer or an Affiliated Company, designated
by the Employer as a part of the Group but only if such plans,
when considered as a group, would continue to satisfy the
nondiscrimination and participation requirements of subsection
401(a)(4) and section 410 of the Code, respectively.
In determining which plans of the Employer or an Affiliated Company are
Aggregated Plans, only plans with Determination Dates within the same
calendar year shall be aggregated.
2.6 ANNIVERSARY DATE. For Plan Years beginning on or after June 1,
1989, the Anniversary Date shall be December 31. For Plan Years beginning
prior to June 1, 1989, the Anniversary Date shall be May 31.
2.7 ANNUAL ADDITION. The amount allocated to the Participant's account
under any defined contribution plan maintained by the Employer, consisting of
the sum of:
(a) Employer contributions;
(b) The lesser of:
(1) Employee contributions in excess of six (6%) percent of his
compensation, or
(2) One-half of Employee contributions;
(c) Forfeitures; and
(d) Amounts described in subsection 415(l)(1) and 419(A)(d)(2) of the
Code and Excess Elective Deferrals not distributed on or before
the first April 15 following the close of the Participant's
taxable year.
Notwithstanding the above, all Employee contributions made for a Plan
Year beginning after December 31, 1986, shall be counted in determining a
Participant's Annual Addition for such Plan Year. The Annual Addition for
any Limitation Year beginning before January 1, 1987 shall not be recomputed
to treat all Employee contributions as an Annual Addition.
2.8 ANNUAL BENEFIT. The amount of benefit payable each year in the
form of a straight life annuity without ancillary benefits.
4
<PAGE>
2.9 BENEFICIARY. Any person, estate, trust or organization designated
by a Participant to receive any amounts payable under the Plan following the
death of such Participant.
2.10 BREAK-IN-SERVICE. A Break-In-Service shall mean failure by a
Participant to complete more than five hundred (500) Hours of Service during
any Plan Year. Any Break-In-Service shall be deemed to have commenced on the
first day of the Plan Year in which it occurs. No Break-In-Service shall be
deemed to occur during the Plan Year in which an Employee commences
employment solely because of the failure by the Employee to complete more
than five hundred (500) Hours of Service during such Plan Year, if the
Employee completes one thousand (1000) or more Hours of Service during the
twelve (12) consecutive month period which begins on his Employment
Commencement Date.
2.11 CODE. The Internal Revenue Code of 1986, as amended, and
regulations issued thereunder.
2.12 COMPENSATION. For purposes of the Plan, Compensation shall mean:
(a) The total gross compensation paid by the Employer to or for a
Participant on account of each Period of Compensation and
required to be reported as wages on the Employee's form W-2
for federal income tax purposes or which would have been paid
but for an Employee's elective contributions to a cash or
deferred plan under subsection 401(k) of the Code or to a
Cafeteria Plan under Section 125 of the Code. For purposes of
determining allocations under Section 5.4, Compensation shall
only include Compensation paid on or after the Participant's
Entry Date as determined under Section 3.1 of the Plan.
(b) For any Plan Year in which the Plan is considered to be Top
Heavy, or for Plan Years beginning after December 31, 1988,
the Compensation determined under this Section and used for
purposes of the Plan shall not exceed two hundred thousand
($200,000) dollars. This amount shall be adjusted each
Limitation Year, at the same time and manner as subsection
415(b)(1)(A), pursuant to subsection 415(d) of the Code. The
rules of subsection 414(q)(6) of the Code shall apply for
purposes of this limitation but "family" shall include only
the spouse and any lineal descendants of the Participant who
have not attained age nineteen (19) before the close of the
Plan Year. The maximum Compensation which can be used for
Plan purposes shall be (except for purposes of determining the
portion of Compensation up to the integration level) prorated,
if necessary, among the "family" members based on the
Compensation determined under this Section prior to the
application of this subsection.
5
<PAGE>
2.13 DEFERRED VESTED BENEFIT. The Accrued Benefit in which a
Participant is vested pursuant to Section 6.6 as a result of termination of
employment prior to Normal or Deferred Retirement.
2.14 DETERMINATION DATE. The Anniversary Date of the preceding Plan
Year except that for the Plan Year in which the Plan is first effective, the
Determination Date shall be the Anniversary Date of that Plan Year.
2.15 DISABILITY. Total and permanent disability means a physical or
mental condition of a Participant, other than as stated in Section 6.3, which
in the opinion of a physician selected by the Plan Administrator, renders him
incapable of continuing in the employment of the Employer. The total and
permanent disability of any Participant shall be certified to the Trustee by
the Plan Administrator in accordance with uniform principles consistently
applied.
2.16 EFFECTIVE DATE OF PLAN. June 1, 1984.
2.17 EFFECTIVE DATE OF 1989 AMENDMENT AND RESTATEMENT. June 1, 1989.
2.18 EMPLOYEE. Any person employed by the Employer, including,
effective for services performed after December 31, 1986, leased employees
within the meaning of subsection 414(n)(2) of the Code. Notwithstanding the
foregoing, if such leased employees constitute less than twenty (20%) percent
of the Employer's non-highly compensated work force within the meaning of
subsection 414(n)(1)C)(ii) of the Code, the term "Employee" shall not include
those leased employees covered by a plan described in subsection 414(n)(5) of
the Code unless otherwise provided by the terms of this Plan.
For purposes of determining the Plan's qualification under the Code, but
not for purposes of the benefits provided under the Plan, Employee as defined
herein shall include employees of an Affiliated Company member which has not
adopted the Plan. In addition, a leased employee shall not be entitled to
the benefits provided under the Plan except to the extent required by Section
410(b) of the Code.
2.19 EMPLOYER. The Employer first designated herein above or any
successor to it by merger, purchase or otherwise, and any corporation, sole
proprietorship, partnership or association that assumes the obligations of
this Agreement. The term "Employer" as used in this Agreement shall refer to
each adopting Employer individually, unless otherwise specified in the Plan.
2.20 EMPLOYMENT COMMENCEMENT DATE. The first day for which the Employee
is entitled to be credited with an Hour of Service.
2.21 ENTRY DATE. Shall mean the date on which an Employee becomes a
Participant in the Plan.
6
<PAGE>
2.22 ERISA. The Employee Retirement Income Security Act of 1974 (Public
Law 93-406), as amended, and any regulations issued pursuant thereto by the
Internal Revenue Service, Department of Labor, or Pension Benefit Guaranty
Corporation.
2.23 FIDUCIARY. A person who has or exercises any authority or control
in the management of the Plan or the disposition of Trust assets; a person
who renders investment advice for a fee or other compensation, directly or
indirectly, with respect to any monies or other property of the Trust or has
any authority or responsibility to do so; or, a person who, when designated
by a named Fiduciary pursuant to authority granted by the Plan, acts to carry
out a fiduciary responsibility, subject to any exceptions granted, directly
or indirectly, by ERISA.
2.24 FORFEITURE. The non-vested portion of a Participant's Accrued
Benefit pursuant to Section 6.10.
2.25 FUND. Those assets of the Trust which have accumulated under the
Plan.
2.26 HIGHLY COMPENSATED EMPLOYEE. Any Participant or Former Participant
who is a highly compensated employee as defined in Code Section 414(q) or
regulations issued thereunder.
2.27 HOURS OF SERVICE. An Employee will be credited with one Hour of
Service as follows:
(a) One hour for each hour he is directly or indirectly paid, or
entitled to payment, by the Employer for the performance of
duties. These hours shall be credited to the Employee for the
computation period or periods in which the duties are
performed; and
(b) One hour for each hour he is directly or indirectly paid, or
entitled to payment, by the Employer for reasons (such as
vacation, holiday, sickness, incapacity [including disability],
layoff, jury duty, military duty, or leave of absence) other
than for the performance of duties. These hours shall be
credited to the Employee for the computation period or periods
in which the non-performance of duties occurs; and
(c) One hour for each hour of the normally scheduled work hours
for each week during any period he is on an excused leave of
absence from work with the Employer for military service with
the armed forces of the United States, but not to exceed the
period required under the law pertaining to veteran's
re-employment rights, provided, however, if he fails to report
for work at the end of such leave during which he has
re-employment rights he shall not receive credit for hours on
such leave; and
(d) One hour for each hour for which back pay, irrespective of
mitigation of damage, has been awarded to the Employee.
Credit for such hour shall be
7
<PAGE>
given in the computation period or periods to which the award
or agreement pertains rather than the computation period in
which the award, agreement or payment was made.
(e) In the case of each Employee who is absent from work for any
period by reason of the pregnancy of the Employee, the birth
of a child of the Employee, the placement of a child with the
Employee in connection with the adoption of such child by such
Employee, or for the purpose of caring for such child for a
period beginning immediately following such birth or
placement, the Plan shall treat as Hours of Service, solely
for the purpose of determining whether a Break-In-Service has
occurred the following Hours of Service:
(1) The Hours of Service which otherwise would normally have
been credited to such Employee but for such absence; or
(2) In any case in which the Plan is unable to determine the
Hours of Service in subsection (1), eight (8) Hours of
Service per day of such absence; and
(3) Provided that the total number of hours treated as Hours of
Service by reason of such pregnancy or placement shall not
exceed five hundred one (501) hours.
Credit for such Hours of Service shall be given in the
computation period, as defined in Section 2.10, in which the
absence from work begins if a Participant would be prevented
from incurring a Break-In-Service in such computation period
solely because the period of absence is treated as Hours of
Service, or in any other case, in the immediately following
computation period.
(f) Notwithstanding paragraph (b) above:
(1) Not more than five hundred one (501) hours shall be credited
on account of any single continuous period during which the
Employee performs no duties;
(2) No hours shall be credited because a payment is made or due
under a plan maintained solely for the purpose of complying
with applicable workmen's compensation or unemployment
compensation or disability insurance laws; and
8
<PAGE>
(3) No hours shall be credited for a payment which solely
reimburses an Employee for medical or medically related
expenses incurred by such Employee.
(g) Notwithstanding paragraph (d) above, the same Hours of Service
shall not be credited both under paragraphs (a) or (b), as the
case may be, and under paragraph (d).
The determination of Hours of Service for reasons other than the
performance of duties and the crediting of Hours of Service to computation
periods shall be made in accordance with Department of Labor Regulations
subsection 2530.200b-2(b) and (c), which are incorporated herein by reference.
An Employee will be credited with Hours of Service, as determined under
this Section, for employment with an Affiliated Company. Any individual
considered an Employee under subsections 414(m) or (n) and entitled to
participate in the Plan will be credited with Hours of Service, as determined
under this Section.
2.28 INVESTMENT MANAGER. The Person designated by the Trustee to manage
and invest designated Trust assets and who acknowledges his acceptance as a
Fiduciary in writing.
2.29 KEY EMPLOYEE. Any Employee or former Employee (and the Beneficiary
of such Employee) who, at any time during the Plan Year or any of the four
(4) preceding Plan Years, is:
(a) An officer of the Employer, provided his annual compensation
is greater than fifty (50%) percent of the dollar limitation
specified in subsection 415(b)(1)(A), as adjusted by
subsection 415(d)(1)(B), of the Code. The maximum number of
officers to be considered Key Employees for any Plan Year
shall be limited to the greater of three (3) or ten (10%)
percent of the aggregate Employees of the Employer and any
Affiliated Company, but in no event more than fifty (50);
(b) One (1) of the ten (10) Employees having an annual
compensation from the Employer and any Affiliated Company of
more than the limitation in effect under subsection
415(c)(1)(A), as adjusted by subsection 415(d)(1)(B), of the
Code and owning (or considered as owning within the meaning of
section 318 of the Code), the largest interest in the Employer
and any Affiliated Company when considered as a group, but
excluding any Employee whose ownership interest is not more
than one-half (1/2%) percent;
(c) A five (5%) percent owner of the Employer; or
9
<PAGE>
(d) A one (1%) percent owner of the Employer having total annual
compensation from the Employer and any Affiliated Company of
more than one hundred fifty thousand ($150,000) dollars.
An Employee's status as a Key Employee shall be determined with
reference to the Plan Year containing the Determination Date and in
accordance with subsection 416(i)(1) of the Code and the regulations
thereunder.
For purposes of the ownership tests in subsections (b), (c) and (d) of
this Section, ownership in Affiliated Company members shall not be
aggregated. "Owner" means any Employee who owns (or is considered as owning
within the meaning of section 318 of the Code) more than the applicable
percentage of outstanding stock of the Employer or stock possessing more than
the applicable percentage of the total combined voting power of all stock of
an incorporated Employer or in the case of an unincorporated Employer, any
Employee who owns more than the applicable percentage of the capital interest
or profits interest in the unincorporated Employer.
Compensation for purposes of this Section has the meaning given such
term by subsection 414(q)(7) of the Code.
2.30 LIMITATION YEAR. A calendar year or any other twelve (12)
consecutive month period which the Employer adopts, by written resolution,
for all plans of which it is the Employer.
2.31 NON-KEY EMPLOYEE. Any Employee, or a former Employee (and the
Beneficiary of such Employee), other than a Key Employee.
2.32 NORMAL RETIREMENT DATE. Normal Retirement Date shall mean the date
on which the Participant attains age sixty-five (65).
2.33 PARTICIPANT. Any Employee who becomes entitled to participate in
the Plan as provided in Article III. Subject to the terms and conditions of
the Plan, a Participant, or his Beneficiary in the event of his death, will
be treated as a Participant until the entire amount of his benefit is
distributed to him.
2.34 PERIOD OF COMPENSATION. The Plan Year.
2.35 PLAN ADMINISTRATOR. The Employer or person appointed by the
Employer, pursuant to the provisions of Article XIV of this Agreement, to
administer the Plan. If more than one person shall be so appointed, the
group formed of those persons so appointed to administer the Plan shall be
known as the "Committee." As used herein, the term "Plan Administrator" shall
include the term "Committee." The Plan Administrator shall be the named
Fiduciary.
10
<PAGE>
2.36 PLAN YEAR. The consecutive twelve (12) month period ending on the
Anniversary Date, except for the short Plan Year beginning on June 1, 1989
and ending on December 31, 1989 (in which case the Plan Year shall be the
seven month period), including all applicable periods prior to the Effective
Date of the Plan. The Plan Year shall be the accounting year of the Trust.
2.37 RE-EMPLOYMENT COMMENCEMENT DATE. The first day following a
Break-In-Service for which the Employee is entitled to be credited with an
Hour of Service.
2.38 SUPER TOP HEAVY PLAN. A plan shall be considered a Super Top Heavy
Plan for a given Plan Year if it would be deemed a Top Heavy Plan, as
hereinafter defined, if the phrase "ninety (90%) percent" were substituted
for "sixty (60%) percent" each time it appears in said definition.
2.39 TOP HEAVY PLAN. A plan shall be considered a Top Heavy Plan for a
given Plan Year if as of the Determination Date, the Top Heavy Ratio, exceeds
sixty (60%) percent.
If the Employer or an Affiliated Company has more than one plan, all
Aggregated Plans, with the exception of those plans not part of a Required
Aggregation Group, will be considered Top Heavy Plans. If the Top Heavy
Ratio for the Aggregated Plans as a group exceeds sixty (60%) percent. If
the Top Heavy Ratio for the Aggregated Plans as a group does not exceed sixty
(60%) percent, none of the Aggregated Plans will be considered a Top Heavy
Plan.
2.40 TOP HEAVY RATIO. A fraction, not exceeding one (1), the numerator
of which is the sum of the accrued benefits under the plan or plans, whether
or not terminated, for which the ratio is being calculated for all Key
Employees, and the denominator of which is the sum of the accrued benefits
under said plan or plans for all Participants.
In computing the accrued benefits for the Top Heavy Ratio, the following
rules shall apply:
(a) For purposes of a defined benefit plan which during the five
(5) year period ending on the Determination Date has or has
had any accrued benefit, the Top Heavy Ratio for any
Aggregated Plans, shall be adjusted as provided in subsections
(c) through (j) of this Section and shall be determined based
on an accrued benefit which means the present value of a
Participant's accrued benefit under the plan, determined as if
the Participant voluntarily terminated from service as of the
Valuation Date and based on the actuarial assumptions
specified in the plan for determining actuarial equivalency.
If Aggregated Plans include two or more defined benefit plans,
the actuarial assumptions to be used shall be the actuarial
assumptions specified in any plan included in the Aggregated
Plans which will result in the lowest percentage of the
accumulated accrued benefits being attributable to the Key
Employees in the
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Aggregated Plans. Notwithstanding the above, in the first
plan year of a plan, the accrued benefit shall be determined
as if the individual terminated on the Determination Date.
Where the Employer also maintains a defined contribution plan,
the Top Heavy Ratio for any Aggregated Plans shall be the sum
of the Top Heavy Ratios calculated under subsections (a) and
(b) of this Section and in accordance with section 416 of the
Code and the regulations thereunder.
(b) For purposes of a defined contribution plan, where the
Employer has not maintained any defined benefit plan which
during the five (5) year period ending on the Determination
Date has or has had accrued benefits, the Top Heavy Ratio for
this Plan alone or for any Aggregated Plans shall be adjusted
as provided in subsections (c) through (j) of this Section and
shall be determined based on an accrued benefit which means a
Participant's account balance as of the Valuation Date,
adjusted to reflect any contribution not actually made as of
the Determination Date, but which is required to be taken into
account on that date under section 416 of the Code and the
regulations thereunder.
(c) The values for the Top Heavy Ratio will be determined as of
the most recent Valuation Date that falls within or ends with
the Plan Year ending on the Determination Date. When
aggregating plans, the value of account balances and accrued
benefits will be calculated with reference to the
Determination Dates that fall within the same calendar year.
(d) Accrued benefits attributable to employee contributions, other
than amounts attributable to deductible employee
contributions, shall be taken into consideration.
(e) The accrued benefits shall be increased for any distributions
(including rollovers or transfers to unrelated employer plans)
made in the five (5) year period ending on the Determination
Date, unless otherwise already included in the accrued
benefit, and any contributions due but unpaid as of such date.
Distributions under a terminated plan, which if it had not
been terminated would have been required to be included in a
group of Aggregated Plans, shall be included for purposes of
this subsection (e).
(f) A rollover or transfer received from an unrelated employer's
plan shall be disregarded.
(g) A rollover or transfer between related Employer plans shall be
considered part of the accrued benefit of the plan receiving
the rollover or transfer.
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(h) The accrued benefit of a Participant who is not a Key Employee
but who was a Key Employee in a prior year shall not be taken
into account in determining the fraction.
(i) The accrued benefit of a Participant who has not performed any
service for any Employer maintaining the plan at any time
during the five (5) year period ending on the Determination
Date shall not be taken into account.
(j) Solely for the purpose of determining if the Plan, or any
other plan included in a Required Aggregation Group of which
this Plan is a part, is Top Heavy, the accrued benefit of a
Non-Key Employee shall be determined under:
(1) The method, if any, that uniformly applies for accrual
purposes under all plans maintained by the Employer or an
Affiliated Company; or
(2) If there is no such method, as if such benefit accrued not
more rapidly than the slowest accrual rate permitted under
the fractional accrual rate of subsection 411(b)(1)(C) of
the Code.
2.41 TRUSTEE. The persons, corporations, associations or combinations
of them who shall at the time, and from time to time, be acting as Trustee.
2.42 VALUATION DATE. The date accrued benefits are determined for
purposes of computing the Top Heavy Ratio, as established separately for each
plan included in the calculation. For this Plan, Valuation Date shall mean
the Anniversary Date of the Plan Year in which falls the Determination Date.
2.43 YEAR OF SERVICE. A Year of Service shall mean a consecutive twelve
(12) month computation period during which an Employee has completed at least
one thousand (1000) Hours of Service. For purposes of determining an
Employee's eligibility for participation in the Plan under Article III, the
first computation period shall begin on his Employment Commencement Date.
The second computation period shall be the Plan Year which includes the first
anniversary of his Employment Commencement Date, and succeeding computation
periods shall also be computed on the basis of the Plan Year. Such Year of
Service shall be deemed completed as of the last day of the relevant
computation period. For purposes of determining vesting under Article VI and
entitlement to allocation of Employer contributions and Forfeitures under
Article V, the computation period shall coincide with the Plan Year.
For purposes of meeting the eligibility requirements of Article III
and/or the vesting requirements of Article VI, service shall include Years of
Service completed with an Affiliated Company.
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ARTICLE III
ELIGIBILITY REQUIREMENTS FOR PARTICIPATION IN THE PLAN
3.1 ELIGIBILITY REQUIREMENTS. An Employee (not currently participating in
the Plan) shall be eligible to participate in the Plan on the later of:
(a) Attainment of age twenty-one (21); and
(b) Completion of one (1) Year of Service;
and shall participate in the Plan as of the first day of the calendar month
coincident with or next following the date he satisfied the above requirements.
3.2 BREAK-IN-SERVICE. If a former Employee or Participant suffers five
(5) consecutive Breaks-In-Service at a time when he has no vested percentage in
his Accrued Benefit and his consecutive Breaks-In-Service equal or exceed his
Years of Service, he shall be considered a new Employee and must meet the
eligibility requirements specified in Section 3.1. A former Employee, who is
re-employed after a Break-In-Service but before his consecutive
Breaks-In-Service equal or exceed the greater of his Years of Service or five
(5) Breaks-In-Service, shall participate upon the later of meeting the
eligibility requirements specified in Section 3.1 or his Re-employment
Commencement Date. In all other cases, a Participant who is re-employed after a
Break-In-Service shall participate immediately upon his Re-employment
Commencement Date.
3.3 SAVINGS AGREEMENT. Each Employee who satisfies the eligibility
requirements of Section 3.1, shall be given the opportunity to enter into a
written savings agreement with the Employer. The agreement shall be in such
form as the Plan Administrator shall prescribe and shall specify a percentage,
not less than one (1%) percent or more than ten (10%) percent by which the
Participant agrees to have his Compensation reduced. In consideration of such
agreement, the Employer will make a contribution to the Plan on behalf of such
Participant at least every calendar quarter in an amount equal to the amount by
which the Participant's Compensation is reduced.
Savings agreement shall be subject to the following:
(a) A savings agreement, once effective, shall be applied to each
Compensation payment, including bonus payments, made after such
date, until the agreement is amended or terminated.
(b) Effective for Plan Years beginning on or after January 1, 1992, a
savings agreement may be amended, or an initial agreement may be
entered into in the event the Participant did not execute such an
agreement at the time he commenced Participation, within a
reasonable period of time prior to
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any January 1, April 1, July 1 or October 1. Effective for
Plan Years beginning prior to January 1, 1992, a savings
agreement may be amended or an initial agreement may be
entered into as of any Entry Date as defined in the Plan prior
to this amendment and restatement.
(c) A savings agreement may be terminated, provided written notice is
given to the Plan Administrator within a reasonable period of
time prior to the payroll period for which such termination is
effective. An election to resume contributions shall be made in
accordance with subsection (b).
(d) Notwithstanding the above, the Employer may at any time cease to
give effect to or modify, a savings agreement if informed by the
Plan Administrator that such is necessary in order to preclude
exceeding any of the limitations contained in Article V.
Notwithstanding anything in this Article or the Plan to the contrary, the
maximum amount by which a Participant may have his Compensation reduced shall
not exceed the dollar limitation in effect for such calendar year pursuant to
subsection 402(g) as adjusted by subsection 415(d) of the Code. A Participant
making elective contributions to any other plan shall have until March 15
following the end of the calendar year in which to notify the Plan
Administrator, in writing, of any excess elective contributions to be allocated
to this Plan. Elective contributions are contributions on behalf of a
Participant as described in subsection 401(k) of the Code, any simplified
employee pension cash or deferred arrangement as described in subsection
402(h)(1)(B), any eligible deferred compensation plan under section 457, any
plan as described under subsection 501(c)(18), and any employer contributions
made on behalf of a Participant for the purchase of an annuity contract under
subsection 403(b) pursuant to a salary reduction agreement. If a Participant
has exceeded the limitation imposed by this paragraph and subsection 402(g) of
the Code for a calendar year, such excess plus earnings and minus any losses
attributable thereto shall be returned to the Participant on or before April 15
of the calendar year following the calendar year in which the excess was
contributed. The excess will be included in the Participant's gross income for
the calendar year in which it was contributed. If the excess is not returned to
the Participant by the April 15 of the calendar year following the calendar year
in which it was contributed, the excess will not be included in the
Participant's basis in the Plan. The income or loss for purposes of this
paragraph shall be determined by multiplying the income or loss allocable to the
Participant's elective contributions account for the calendar year by a
fraction, the numerator of which is the excess elective contributions on behalf
of the Participant for the preceding calendar year and the denominator of which
is the Participant's elective contributions account on the last day of the
preceding calendar year. Alternatively, the Employer may use any other
reasonable method that it otherwise uses to allocate income or loss to a
Participant's account, provided the method is applied on a consistent basis as
to all Participants. Additionally, the income or loss determined under the
preceding sentence may (but is not required to) be further increased or
decreased, as the case may be, by ten (10%) percent of the income or loss
determined under the preceding sentence for each calendar month which has
elapsed since the end of the applicable calendar year. In determining the
number of calendar
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months which has elapsed under the preceding sentence, a distribution
occurring on or before the fifteenth day of the month will be treated as
having been made on the last day of the preceding month, and a distribution
occurring after the fifteenth day shall be treated as having been made on the
first day of the next calendar month. Excess elective contributions shall be
treated as Annual Additions under the Plan.
3.4 ADMISSION TO PLAN. Every Employee who is eligible to participate in
the Plan shall automatically commence participation in accordance with the
provisions of Section 3.1.
ARTICLE IV
CONTRIBUTIONS
4.1 CONTRIBUTION FORMULA.
(a) DISCRETIONARY PROFIT SHARING CONTRIBUTIONS. The Employer shall
make an annual contribution to the Trust in such amount as the
Employer shall determine by resolution written or otherwise. The
cost of any contribution required by this subsection (a) shall be
borne by the Employer and delivered to the Trustee within the
time prescribed (including extensions) by the Code for filing its
federal income tax return for such year.
(b) DISCRETIONARY MATCHING CONTRIBUTIONS. Matching contributions
shall be made totally at the Employer's discretion, in an amount
to be determined by the Board of Directors or otherwise. The
cost, if any, of any contribution required by this subsection (b)
shall be borne by the Employer and delivered to the Trustee.
Forfeitures which are related to contributions made under this
Section 4.1(b) shall be used to reduce future contributions under
this subsection.
(c) REQUIRED CONTRIBUTIONS. The Employer shall make contributions to
the Trust such that the sum of all Employer contributions is
equal to the total amount by which each Participant's
Compensation is reduced pursuant to savings agreements in effect
for such Plan Year under Section 3.3. The cost of any
contribution required by this subsection (c) shall be borne by
the Employer and delivered to the Trustee as of the earliest date
on which such contribution can reasonably be segregated from the
Employer's general assets, but not later than ninety (90) days
from the date such amounts would otherwise have been paid to the
Participant.
(d) DISCRETIONARY NON-ELECTIVE CONTRIBUTIONS. The Employer shall
make contributions to the Trust, if any, equal to an annual
percentage of each Participant's Compensation as determined at
the Employer's discretion.
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The cost, if any, of the contribution required by this
subsection (d) shall be borne by the Employer and delivered to
the Trustee within the time prescribed (including extensions)
by the Code for filing its federal income tax return for such
year.
4.2 LIMITATION ON AMOUNT OF ANNUAL EMPLOYER CONTRIBUTION. In no event
shall the amount of the Employer's contribution to the Trust for any taxable
year exceed the lesser of the maximum amount allowable as a deduction under
sections 404(a)(3) and 404(a)(7) of the Code, from the Employer's taxable income
for that year for federal income tax purposes or the total of the maximum Annual
Addition specified in the Plan computed separately for each Participant in the
Plan based on each Participant's Compensation for the Plan Year. The Employer's
contribution to the Trust for any taxable year is made on the condition that,
under the Code, it is deductible from the Employer's taxable income for federal
income tax purposes for the Employer's taxable year for which it was made. If
any portion of the Employer's contribution is not deductible for the year in
which it was made, the non-deductible portion of the Employer's contribution
shall be returned to the Employer as provided under Section 17.1.
4.3 VOLUNTARY CONTRIBUTIONS BY PARTICIPANTS. In addition to the
contributions made by the Employer, a Participant may make aggregate Employee
Contributions to the Plan not in excess of ten (10%) percent of his aggregate
compensation during all Plan Years in which he was a Participant, reduced by the
amount of Employee contributions, if any, made to any other qualified plan
maintained by the Employer.
(a) All voluntary Employee Contributions shall be collected by the
Employer and delivered to the Trustee not more frequently than
weekly.
(b) A separate Account shall be maintained for each Participant's
Accrued Benefit derived from his voluntary Employee Contributions
to this Plan. This separate Account shall be valued on the
Accounting Date and credited with any earnings or debited with
any expenses or losses attributable thereto, in accordance with
Section 5.3 of the Plan.
(c) The Accrued benefit derived from a Participant's voluntary
Employee Contributions to this Plan shall mean the balance of his
separate Account, as of any applicable date, including
Participant's voluntary Employee Contributions, and all income,
expenses, gains and losses attributable thereto.
(d) The Accrued Benefit derived from a Participant's voluntary
Employee Contributions may be withdrawn at any time by the
Participant. The Trustee may require thirty (30) days written
notice for the purpose of honoring such withdrawal requests.
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(e) The Accrued Benefit derived from Participant's voluntary Employee
Contributions shall at all times be fully vested and
nonforfeitable.
(f) Elective Deferrals treated as voluntary Employee Contributions
made pursuant to this Section in applying the limitations and
conditions of this Section except that they may not be withdrawn
and will not be distributed until the Participant is entitled to
a distribution of Elective Deferrals pursuant to Section 7.1.
Notwithstanding anything contained in this Section 4.3 to the contrary, for
Plan Years beginning after December 31, 1989, voluntary Employee Contributions
by a participant shall not be permitted under the Plan. Voluntary Employee
Contributions made prior to January 1, 1990, shall not be subject to withdrawal
unless the Participant's spouse, if married, consents to such withdrawal by the
Participant.
4.4 ROLLOVERS AND TRANSFERS. With the permission of the Plan
Administrator and without regard to any limit, the Trustee may receive any
amounts from another qualified plan, either directly from the other plan, within
sixty (60) days after receipt by the Participant, or through the medium of an
Individual Retirement Account. A separate Account shall be maintained for each
Participant's Accrued Benefit derived from rollover contributions. The Accrued
Benefit derived from a Participant's rollover contributions to this Plan shall
mean the balance of his separate Account, as of any applicable date, including
the Participant's rollover contributions and all income, expenses, gains and
losses attributable thereto. This separate Account shall be valued as of the
Accounting Date and credited with any earnings or debited with any losses or
expenses attributable thereto in accordance with Section 5.3 of the Plan. The
Accrued Benefit derived from a Participant's rollover contributions and the
earnings thereon shall at all times be fully vested and nonforfeitable, and may
not be withdrawn at any time before disability, death, retirement or other
termination of employment. Direct transfers from a qualified plan subject to
the requirements of sections 401(a)(11) and 417 of the Code, shall obligate the
Trustees and Plan Administrator to amend the Plan in order to comply with the
requirements of these sections of the Code.
An Employee of the Employer who would be eligible for the Plan, but for the
age and service requirements contained in Section 3.1, shall be entitled to
rollover or transfer amounts from a prior employer's plan which is qualified
under Section 401(a).
4.5 ACCEPTANCE OF ASSETS. The Trustee may receive the assets of any
qualified plan (including a predecessor plan) or rollovers, as aforesaid;
however, the acceptance of any such deposit by the Trustee shall not, in any
manner, guaranty the nature of such asset nor shall the Trustee be accountable
to the Trust or to any Participant or Beneficiary to ascertain the validity of
such contribution. The Trustee may hold and invest such assets in any manner in
which he is authorized to hold and invest the contributions of the Employer.
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ARTICLE V
PARTICIPANT'S ACCOUNTS AND ADJUSTMENTS
5.1 ACCOUNTS FOR PARTICIPANTS. The Plan Administrator shall establish and
maintain one or more separate Accounts for each Participant as is needed. Such
Accounts shall be used to record the Participant's Accrued Benefit derived from
Employer contributions and rollover contributions.
5.2 CHARGES TO ACCOUNTS. As of each Accounting Date, all distributions
made to or on behalf of a Participant from one or more of his Accounts since the
preceding Accounting Date shall be charged to such Account.
5.3 ADJUSTING THE VALUE OF THE TRUST. As of each Accounting Date, the
credit balances in the Accounts of all Participants shall be increased or
decreased, as the case may be, in the proportion that the net credit to the
Account of each such Participant bears to the total net credits to the Accounts
of all such Participants so that the aggregate of the net credit balances equals
the fair market value of the Trust on that date, reduced by the amount of any
Employer contributions, voluntary employee contributions and Participant
rollover contributions made to the Trust since the preceding Accounting Date.
All income and expenses accrued shall be taken into consideration by the
Trustee.
For purposes of this adjustment, the net credit to the Account of each
Participant shall be the net credit at the preceding Accounting Date increased
by one-half (1/2) of the Employer's contributions, voluntary employee
contributions and rollover contributions which will be credited to the
Participant's Accounts for the accounting period, but before the allocation of
earnings or losses for the accounting period, and reduced, but not below zero,
by the amount of any distribution from the Trust since the preceding Accounting
Date. Contributions which were made during the current accounting period but
were credited to the Participant's Accounts as of a preceding Accounting Date
shall be disregarded.
5.4 ALLOCATION OF EMPLOYER CONTRIBUTIONS.
(a) PROFIT SHARING CONTRIBUTIONS AND FORFEITURES. As of the
Anniversary Date, each Participant's allocable share (as
hereinafter determined), if any, of the Employer's contributions
under subsection 4.1(a) for that Plan Year and Forfeitures
arising during that Plan Year, if any, shall be credited to his
Profit Sharing Account. The Employer's contributions for the
Plan Year and the Forfeitures arising under the Plan during that
Plan Year shall be allocated amongst the Profit Sharing Accounts
of those Participants entitled to share in such allocations in
the same proportion that each Participant's Compensation bears to
the total Compensation of all the Participants.
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The Participants entitled to share in the allocation of Employer
profit sharing contributions are those in the employ of the
Employer on such Anniversary Date who completed a Year of Service
during such Plan Year. Notwithstanding the preceding sentence,
for Plan Years beginning after December 31, 1990, if the Plan
fails to meet either of the coverage requirements of subsection
410(b)(1) of the Code (due solely to Participants who receive
credit for less than 1000 Hours of Service but more than 500
Hours of Service), the Plan Administrator shall include a
sufficient number of Participants in the allocation, in
accordance with the following sentence, to satisfy one of the
coverage tests under subsection 410(b)(1) of the Code.
Participants whose employment is terminated before the end of the
Plan Year, but after having completed 500 Hours of Service for
such Plan Year, shall share in the Employer contribution for the
Plan Year as follows: the minimum number required to meet the
coverage tests under subsection 410(b)(1) of the Code based on
their date of termination, with the last Participants to
terminate being the first Participants to share in the
allocation.
(b) DISCRETIONARY NON-ELECTIVE AND MATCHING CONTRIBUTIONS. As of
each Accounting Date, each Participant's allocable share (as
hereinafter determined), if any, of the Employer's contribution
under subsections 4.1(b) and (d) for that Plan Year, shall be
credited to the Participant's Employer Matching Account. A
Participant's allocable share of the Employer's contribution
under subsection 4.1(b) and (d) shall be equal to the amount
contributed by the Employer for such Participant under
subsections 4.1(b) and (d).
The Participants entitled to share in the allocation of Employer
contributions under subsections 4.1(b) and (d) are those in the
employ of the Employer on the Anniversary Date. Notwithstanding
the preceding sentence, if the Plan fails to meet either of the
coverage requirements of subsection 410(b)(1) of the Code (due
solely to Participants who receive credit for less than 1000
Hours of Service but more than 500 Hours of Service), the Plan
Administrator shall include a sufficient number of Participants
in the allocation, in accordance with the following sentence, to
satisfy one of the coverage tests under subsection 410(b)(1) of
the Code. Participants whose employment is terminated before the
end of the Plan Year, but after having completed 500 Hours of
Service for such Plan Year, shall share in the Employer
contribution for the Plan Year as follows: the minimum number
required to meet the coverage tests under subsection 410(b)(1) of
the Code based on their date of termination, with the last
Participants to terminate being the first Participants to share
in the allocation.
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(c) REQUIRED CONTRIBUTIONS. As of the Accounting Date, each
Participant's allocable share, if any, of the Employer's required
contribution for that Plan Year shall be credited to his Employee
Savings Account. A Participant's allocable share of the
Employer's required contribution for that Plan Year shall be
equal to the amount by which his Compensation was reduced
pursuant to a savings agreement in effect under Section 3.3.
(d) MINIMUM ALLOCATION FOR PLAN YEARS IN WHICH THE PLAN IS A TOP
HEAVY PLAN. For each Plan Year in which the Plan is determined
to be a Top Heavy Plan, each Participant who is in the employ of
the Employer on the Anniversary Date, whether or not he completed
a Year of Service, shall be entitled to a minimum allocation of
Employer contributions to be made by the Employer in addition to
the contributions required by Section 4.1, equal to the lesser
of:
(1) Three (3%) percent of his Compensation; or
(2) That percent of his Compensation which is equal to the
largest percent of Compensation of any Key Employee which is
allocated to such Key Employee's Accounts from all Employer
Contributions.
For purposes of satisfying the above minimum, all allocations of
Employer contributions pursuant to subsections 4.1(a) and 4.1(d)
shall be taken into consideration. In addition, the minimum
allocation which would otherwise be required by this subsection
(d) shall not be required to the extent the Participant is
participating under any other plan or plans of the Employer which
provide minimum contributions or benefits that satisfy subsection
416(f) of the Code. Any allocations required by this subsection
(d) shall be credited, as of the Anniversary Date to the
Participant's Profit Sharing Account.
5.5 CREDITING PARTICIPANTS' VOLUNTARY CONTRIBUTIONS. As of each
Accounting Date, each Participant's voluntary Employee Contributions, if any,
for the Plan Year ending on that date shall be credited to his voluntary
Employee Contributions Account. To the extent it would not cause the
limitations of Section 4.3 or 5.6 to be exceeded, voluntary Employee
Contributions made by a Participant within thirty (30) days after the Plan Year
end shall be credited to his Account as of the preceding Anniversary Date
5.6 LIMITATION ON ANNUAL ADDITIONS. Notwithstanding any other provisions
of the Plan:
(a) The Annual Addition of each Participant for any Limitation Year
shall not exceed an amount equal to the lesser of:
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(1) Thirty Thousand ($30,000) Dollars, (or, if greater,
one-fourth (1/4) of the dollar limitation in effect for the
Limitation Year under subsection 415(b)(1)(A), as adjusted
each Limitation Year pursuant to subsection 415(d) of the
Code); or
(2) Twenty-five (25%) percent of the Participant's compensation
for such Limitation Year.
(b) If amounts which would otherwise be credited as an Annual
Addition would cause such Annual Addition to be in excess of the
above limits, such excess shall be eliminated by:
(1) Returning any Employer required contributions under
subsection 4.1(c) to the Participant after the end of the
Plan Year, as if the savings agreement which created such
Employer required contribution under subsection 4.1(c) had
not been in effect, to the extent the return would reduce
such excess; and
(2) If any excess still remains, such amount shall be taken from
Employer contributions under subsection 4.1(a), and shall be
placed in a suspense account as a Forfeiture and allocated
on the next succeeding Anniversary Date as of which
Forfeitures could be applied under the Plan. In the event
of termination of the Plan, the suspense account shall
revert to the Employer to the extent it may not then be
allocated to any Participant's Account due to the above
limitations.
Notwithstanding anything contained herein to the contrary, while such
suspense account exists, the Employer shall not contribute an amount to the Plan
which would cause an increase in the amount allocated to the suspense account.
In addition, the suspense account shall not share in the annual adjustment
prescribed under Section 5.3.
If the Employer determines the maximum permissible amount for a Participant
on the basis of a reasonable estimation of the Participant's compensation for
the Limitation Year, as soon as is administratively feasible after the end of
the Limitation Year, the maximum permissible amount for the Limitation Year will
be determined on the basis of the Participant's actual compensation for the
Limitation Year.
For purposes of the limitations contained in this Section, the Annual
Addition which may be credited to a Participant under this Plan for any
Limitation Year will be reduced first if necessary to comply with the "1.0" and
"1.25" limitations for combined plans pursuant to Section 415 of the Code.
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5.7 COMBINED PLAN LIMITATION. In the event that a Participant in this
defined contribution plan is or becomes a Participant in a defined benefit plan
maintained by the Employer (both as such terms are defined in ERISA), the sum of
the Defined Benefit Plan Fraction and the Defined Contribution Plan Fraction for
any Limitation Year shall not exceed 1.0.
For purposes of this Section, the Defined Benefit Plan Fraction and the
Defined Contribution Plan Fraction shall be calculated as follows:
(a) The term Defined Benefit Plan Fraction shall mean a fraction, the
numerator of which is the projected Annual Benefit of the
Participant under all defined benefit plans of the Employer,
determined as of the end of the Limitation Year, and the
denominator of which is the lesser of:
(1) 1.25 multiplied by the maximum dollar limitation in effect
for such Limitation Year determined at the end of the
Limitation Year, pursuant to subsection 415(b)(1)(A), as
adjusted each Limitation Year pursuant to subsection 415(d)
of the Code; or
(2) 1.4 multiplied by the amount taken into account for such
Limitation Year, pursuant to subsection 415(b)(1)(B) of the
Code.
(b) The term Defined Contribution Plan Fraction shall mean a fraction
the numerator of which is the sum of the Annual Additions to the
Participant's account under all defined contribution plans of the
Employer, determined as of the end of the Limitation Year, and
the denominator of which is the sum of the following Maximum
Amounts for such Limitation Year and all prior Years of Service
with the Employer; provided, however, that the sum of the Annual
Additions for all Limitation Years beginning before January 1,
1976, shall only be considered in computing the numerator of such
fraction to the extent such sum does not exceed the aggregate
Maximum Amounts for such Limitation Years. Maximum Amount shall
mean the lesser of:
(1) 1.25 multiplied by the maximum dollar limitation in effect
for such Limitation Year, determined at the end of the
Limitation Year, pursuant to subsection 415(c)(1)(A) (or, if
greater, one-fourth (1/4) of the dollar limitation in effect
for the Limitation Year under subsection 415(b)(1)(A), as
adjusted each Limitation Year pursuant to subsection 415(d)
of the Code); or
(2) 1.4 multiplied by the amount taken into account for such
Limitation Year, determined at the end of the Limitation
Year, pursuant to subsection 415(c)(1)(B) of the Code.
23
<PAGE>
(3) Notwithstanding the above, at the election of the Plan
Administrator, in determining the Defined Contribution Plan
Fraction for any Limitation Year ending after December 31,
1982, provided the plan was in existence on or before July
1, 1982, the amount taken into account in computing the
denominator of such fraction with respect to each
Participant for all Limitation Years ending before January
1, 1983, shall be an amount equal to the amount taken into
account pursuant to subsection 415(e)(3)(B) of the Code (as
in effect for the Limitation Year ending in 1982) for the
year ending in 1982, multiplied by the Transition Fraction.
The term Transition Fraction shall mean a fraction:
(A) the numerator of which is the lesser of:
(i) Fifty One Thousand Eight Hundred Seventy Five
($51,875) Dollars, or
(ii) 1.4 multiplied by twenty-five (25%) percent
of the Participant's compensation for the
Limitation Year ending in 1981; and
(B) the denominator of which is the lesser of:
(i) Forty One Thousand Five Hundred ($41,500)
Dollars, or
(ii) Twenty-five (25%) percent of the
Participant's compensation for the Limitation
Year ending in 1981.
(4) If the Employee was a Participant in one or more defined
contribution plans maintained by the Employer which were in
existence on July 1, 1982, the numerator of the Defined
Contribution Plan Fractions will be adjusted if the sum of
the Defined Contribution Plan Fractions and the Defined
Benefit Fraction would otherwise exceed 1.0 under the terms
of this plan. Under the adjustment, an amount equal to the
product of:
(A) the excess of the sum of the Defined Contribution Plan
Fractions over 1.0; times
(B) the denominator of these fractions will be permanently
subtracted from the numerator of these fractions.
24
<PAGE>
The adjustment is calculated using the fractions as they
would be computed as of the end of the last Limitation Year
beginning before January 1, 1983. This adjustment will be
made if at the end of the last Limitation Year beginning
before January 1, 1984, the sum of the fractions exceeds 1.0
because of accruals or additions that were made before the
limitations of this Article became effective to any plans of
the Employer in existence on July 1, 1982.
If the plans satisfied the requirements of section 415 of the Code as in
effect for all Limitation Years beginning before January 1, 1987, the Defined
Benefit Plan Fraction of an Employee who was a Participant as of the first day
of the Limitation Year beginning December 31, 1986 in one or more plans of the
Employer which were in existence on May 6, 1986, shall be calculated by using a
denominator which is not less than 1.25 of the sum of the annual benefits under
such plans in which the Participant had accrued a benefit as of the close of the
last Limitation Year beginning before January 1, 1987 but disregarding any
changes in the terms and conditions of the plans after May 6, 1986. If an
Employee was a Participant as of the end of the first day of the first
Limitation Year beginning after December 31, 1986 in one or more defined
contribution plans of the Employer which were in existence on May 6, 1986, the
Defined Contribution Plan Fraction numerator will be adjusted if the sum of the
Defined Benefit Plan Fraction and the Defined Contribution Plan Fraction would
otherwise exceed 1.0 under the terms of this Plan. The numerator shall be
adjusted by permanently subtracting from the numerator an amount equal to the
product of the excess of the sum of the fractions over 1.0 times the denominator
of the Defined Contribution Plan Fraction. The Defined Benefit Plan Fraction
and the Defined Contribution Plan Fraction shall be calculated for purposes of
this adjustment as of the end of the last Limitation Year beginning before
January 1, 1987, disregarding any changes in the terms and conditions of the
Plan made after May 6, 1986 but using the section 415 of the Code limitation
applicable to the first Limitation Year beginning on or after January 1, 1987.
In the event the plan is determined to be a Top Heavy Plan, in determining
the Defined Benefit Plan Fraction and the Defined Contribution Fraction, "1.0"
shall be substituted for "1.25" in the above calculations; and "41,500" shall be
substituted for "51,875" in computing the numerator of the Transition Fraction.
However, provided the plan is not a Super Top Heavy Plan, the above
substitutions shall not apply if "four (4%) percent" is substituted for "three
(3%) percent" in Section 5.4.
5.8 COMBINING OF PLANS. For purposes of the limitations contained in this
Article V, the following shall apply:
(a) All defined benefit plans, whether or not terminated, of the
Employer shall be treated as one defined benefit plan;
(b) All defined contribution plans, whether or not terminated, of the
Employer shall be treated as one defined contribution plan; and
25
<PAGE>
(c) Compensation shall be determined as defined in section 1.415-2(d)
of the Income Tax Regulations.
The limitations contained in this Article V are intended to comply with
section 415 of the Code. If there is a conflict with the section 415
limitations as contained in this Article and the provisions of section 415 of
the Code, such conflict shall be resolved in favor of the provisions as
contained in section 415 of the Code.
For purposes of applying the allocation limitations of this Article V, the
term Employer shall include an Affiliated Company.
5.9 LIMITATION TO PRECLUDE DISCRIMINATION. Notwithstanding any other
provisions of the Plan:
(a) In no event may the actual deferral percentage for the Highly
Compensated Employees for any Plan Year exceed the greater of the
following:
(1) 1.25 multiplied by the actual deferral percentage of all
other eligible Employees; or
(2) The actual deferral percentage of all other eligible
Employees plus two (2%) percent provided that the actual
deferral percentage of the Highly Compensated Employees does
not exceed 2.0 multiplied by the actual deferral percentage
of all other eligible Employees.
The actual deferral percentage for a Plan Year shall be the
average of the ratios, calculated separately and expressed as a
percentage for each Participant in the group, of the Employer
contributions under subsection 4.1 (c) and (d) without regard to
the last paragraph of Section 3.3, allocated to a Participant's
Account under Section 5.4 to his Compensation. For purposes of
determining the actual deferral percentage for any Participant
who is a Highly Compensated Employee for the Plan Year, all
arrangements described in subsection 401(k) of the Code
maintained by the Employer shall be treated as a single
arrangement. If this Plan has to be aggregated, for any reason,
with any other plan in order for the requirements 401(k),
401(a)(4) or 410 (b) of the Code to be satisfied, then this shall
be applied by determining the actual deferral percentage of each
Participant as if all such Plans were a single Plan. For Plan
Years beginning after December 31, 1989, Plans may be aggregated
in order to satisfy Subsection 401(k) of the Code only if they
have the same Plan Year. All contributions required to be
treated as Elective Deferrals under the Plan in calculating the
Actual Deferral Percentages must be contributed no later than the
last day of the twelve (12) month
26
<PAGE>
period immediately following the Plan Year to which the
contributions relate in order to be included in the
calculations. The actual deferral percentage of a Participant
who does not make an elective contribution is zero.
(b) In order to ensure compliance with the above limitation, the
following steps may be taken with respect to the excess
contribution by Highly Compensated Employees:
(1) If the Employer required contribution under Section 4.1(c)
of the Plan has not been delivered to the Trustee, any
savings agreement may be modified or ceased to the extent
deemed necessary by the Plan Administrator.
(2) If the Employer required contribution has been delivered to
the Trustee, said contribution plus earnings and minus any
losses attributable thereto which exceeds the limitations of
this Section shall be returned to the Participant within two
and one-half (2-1/2) months after the end of the Plan Year
for which the contribution was made as if the savings
agreement which created such Employer required contribution
had not been in effect. If such Excess Contributions are
distributed more than two and one-half (2-1/2) months after
the end of the Plan Year in which it occurred, a ten (10%)
percent excise tax will be imposed on the Employer. In no
event, however, shall said distribution be made later than
the end of the Plan Year following the Plan Year for which
the contributions were made. The income or loss allocable
to said excess contribution shall be determined by
multiplying the income or loss allocable to the
Participant's Accounts used to determine his actual deferral
percentage for the Plan Year by a fraction, the numerator of
which is the excess contributions on behalf of the
Participant for the preceding Plan Year and the denominator
of which is the sum of the Participant's Account balances
used to determine his actual deferral percentage on the last
day of the preceding Plan Year. Alternatively, the Employer
may use any other reasonable method that it otherwise uses
to allocate income or loss to a Participant's account,
provided the method is applied on a consistent basis as to
all Participants. Additionally, the income or loss
determined under the preceding sentence may (but is not
required to) be further increased or decreased, as the case
may be, by ten (10%) percent of the income or loss
determined under the preceding sentence for each calendar
month which has elapsed since the end of the applicable Plan
Year. In determining the number of calendar months which
have elapsed under the
27
<PAGE>
preceding sentence, a distribution occurring on or before
the fifteenth day of the month will be treated as having
been made on the last day of the preceding month, and a
distribution occurring after the fifteenth day shall be
treated as having been made on the first day of the next
calendar month.
Whenever any of the above steps are to be taken, the Highly Compensated
Employee with the highest actual deferral percentage shall have his actual
deferral percentage reduced until such excess contribution is eliminated or
to the actual deferral percentage of the Highly Compensated Employee with the
next highest actual deferral percentage whichever is lesser. Highly
Compensated Employees subject to the family aggregation rules whose Actual
Deferral Percentage must be reduced shall have the amount to be reduced
allocated between all the aggregated Participants in proportion to all the
contributions treated as Elective Deferrals of each Participant aggregated to
determine the combined Actual Deferral Percentage. Excess Contributions to
be distributed to a Participant shall include proportional amounts of his
Elective Deferrals and Qualified Matching Contributions used in calculating
his Actual Deferral Percentage. Excess Contributions which exceed a
Participant's balance of Elective Deferrals and Qualified Matching
Contributions shall be distributed to the Participant from his account
balance attributed to his Qualified Non-Elective Contributions used in
Calculating his Actual Deferral Percentage. In addition, any matching
contribution, allocated to the Participant under Section 5.4(b) as a result
of an Excess Contribution plus or minus earnings or losses, shall be treated
as a Forfeiture to the extent forfeitable under the Code, and to the extent
not forfeitable, shall be distributed to the Participant.
If such excess contribution has not been eliminated, the next two or more
Highly Compensated Employees with the highest actual deferral percentage shall
have their actual deferral percentage reduced proportionately until such excess
contribution is eliminated or to the actual deferral percentage of the Highly
Compensated Employee with the next highest actual deferral percentage whichever
is lesser. The preceding step shall be repeated until such excess contribution
is eliminated and the Plan is in compliance with the above actual deferral
percentage limitations for Highly Compensated Employees.
5.10 LIMITATION ON MATCHING CONTRIBUTIONS AND EMPLOYEE CONTRIBUTIONS TO
PRECLUDE DISCRIMINATION. Notwithstanding any other provisions to the Plan:
(a) In no event may the average contribution percentage (calculated
to the nearest 1/100th of 1%) for the Highly Compensation
Employees for any Plan Year exceed the greater of the following:
(1) 1.25 multiplied by the average contribution percentage of
all other eligible Employees; or
(2) The average contribution percentage of all other eligible
Employees plus two (2%) percent, provided that the average
contribution
28
<PAGE>
percentage of the Highly Compensated Employees does not
exceed 2.0 multiplied by the actual contribution
percentage of all other eligible Employees.
The average contribution percentage for a Plan Year shall be
the average of the ratios, calculated separately and expressed
as a percentage for each Participant in the group, of the sum
of the Employer matching contribution for the Plan Year under
subsection 4.1(b), allocated under subsection 5.4, to his
Compensation. For purposes of determining the actual
contribution percentage for any Participant who is a Highly
Compensated Employee for the Plan Year, all plans described in
subsection 401(k) of the Code that are maintained by the
Employer shall be treated as a single plan. If this Plan has
to be aggregated, for any reason, with any other plan in order
for the requirements 401(k), 401(a)(4) or 410 (b) of the Code
to be satisfied, then this shall be applied by determining the
actual contribution percentage of each Participant as if all
such Plans were a single plan. Plans may be aggregated in
order to satisfy subsection 401(k) of the Code only if they
have the same Plan Year. Employer matching contributions
shall be considered made in the Plan Year in which the
matching contribution to the Plan is allocated pursuant to
subsection 5.4(b), provided it is contributed to the Plan no
later than the end of the twelve (12) month period beginning
on the day after the close of that Plan Year and is made on
account of an Employee's elective contributions for that Plan
Year. For this purpose, Matching Contributions shall include
Forfeitures allocated based on an Employee's Elective
Deferrals.
The Contribution Percentage of a Participant who is a
more than five (5%) percent owner or one of the ten (10) most
highly-paid Highly Compensated Employees shall be determined
by calculating the Contribution Percentage Amounts and
Compensation of such Participant after being aggregated with
any family member (spouse and lineal ascendants or descendants
and the spouses of such ascendants or descendants)
participating in the Plan. For this purpose the aggregated
Participants shall be considered one Participant. Family
members required to be aggregated shall be disregarded as
separate employees in determining the Contribution Percentage
both for Participants who are Highly Compensated Employees and
Participants who are not Highly Compensated Employees.
(b) In order to ensure compliance with the above limitations, for
Highly Compensated Employees, if the Employer matching
contribution has been delivered to the Trustee, said excess
Employer matching contribution, plus earnings and minus any
losses attributable thereto, which exceeds the limitations of
this Section shall be distributed to the Participant but only
29
<PAGE>
to the extent the Employer matching contribution is vested.
To the extent the Employer matching contribution is not
vested, it will be forfeited and applied pursuant to Section
6.10. The distribution of a Participant's Employer matching
contribution shall be made in the same ratio as their
contributions are being made to the Plan, but only if the
distributions are needed to satisfy the nondiscrimination
requirements of this Section of the Plan. Said distribution
shall be made not later than the end of the Plan Year
following the Plan Year for which the Employer matching
contribution was made. The income or loss allocable to said
excess Employer matching contribution shall be determined by
multiplying the income or loss allocable to the Participant's
Employer matching contribution Account for the Plan Year by a
fraction, the numerator of which is the excess Employer
matching contributions on behalf of the Participant for the
Plan Year and the denominator of which is the Participant's
Employer matching contribution Account balance on the last day
of the Plan Year, reduced by the gain allocable to such total
amount for the Plan Year, and increased by the loss allocable
to such total amount for the Plan Year. Alternatively, the
Employer may use any other reasonable method that it otherwise
uses to allocate income or loss to a Participant's account,
provided the method is applied on a consistent basis as to all
Participants. Additionally, the income or loss determined
under the preceding sentence may (but is not required to) be
further increased or decreased, as the case may be, by ten
(10%) percent of the income or loss determined under the
preceding sentence for each calendar month which has elapsed
since the end of the applicable Plan Year. In determining the
number of calendar months which have elapsed under the
preceding sentence, a distribution occurring on or before the
fifteenth (15th) day of the month will be treated as having
been made on the last day of the preceding month, and a
distribution occurring after the fifteenth (15th) day shall be
treated as having been made on the first day of the next
calendar month.
Whenever the above steps are to be taken, the Highly Compensated
Employee with the highest average contribution percentage shall have his
actual contribution percentage reduced until such excess Employer matching
contribution is eliminated or to the actual contribution percentage of the
Highly Compensated Employee with the next highest actual contribution
percentage whichever is less. If such excess actual contribution percentage
has not been eliminated, the next two (2) or more Highly Compensated
Employees with the next highest actual contribution percentage shall have
their actual contribution percentage reduced proportionately until such
excess Employer matching contributions are eliminated or to the actual
contribution percentage of the Highly Compensated Employee with the next
highest actual contribution percentage, whichever is less. The preceding
step shall be repeated until such excess Employer matching contributions are
eliminated and the Plan is in compliance with the above actual contribution
percentage limitations for Highly Compensated Employees.
30
<PAGE>
5.11 AGGREGATE LIMITATION TO PRECLUDE DISCRIMINATION. In addition to the
limitations provided in Sections 5.9 and 5.10, if the Actual Deferral Percentage
for the Highly Compensated Employees exceeds one hundred twenty-five (125%)
percent of the Actual Deferral Percentage of all other eligible Employees who
are not Highly Compensated Employees and if the Average Contribution Percentage
for the Highly Compensated Employees exceeds one hundred twenty-five (125%)
percent of the Actual Contribution Percentage for all other eligible Employees
who are not Highly Compensated Employees, then in no event may the sum of the
Actual Deferral Percentage and the Average Contribution Percentage of those
Highly Compensated Employees subject to either or both tests for any Plan Year
exceed the aggregate limit. Such limit will be determined after making any
adjustment prescribed by Sections 5.9 and/or 5.10. For this purpose, the
"aggregate limit" is the greater of (a) or (b):
(a) One hundred twenty-five (125%) percent times the greater of:
(1) The Actual Deferral Percentage of all eligible Employees who
are not Highly Compensated Employees; or
(2) The Actual Contribution Percentage of all eligible Employees
who are not Highly Compensated Employees; and
(3) Two (2%) percent plus the lesser of (1) or (2) above, but in
no event greater than two hundred (200%) percent of the
lesser of (1) or (2) above.
(b) One hundred twenty-five (125%) percent times the lesser of:
(1) The Actual Deferral Percentage of all eligible Employees who
are not Highly Compensated Employees; or
(2) The Actual Contribution Percentage of all eligible Employees
who are not Highly Compensated Employees; and
(3) Two (2%) percent plus the greater of (1) or (2) above, but
in no event greater than two hundred (200%) percent of the
greater of (1) or (2) above.
In order to avoid exceeding the aggregate limit, the Contribution
Percentage Amounts of those Highly Compensated Employees who also participate in
the Actual Deferral Percentage test shall be reduced beginning with such Highly
Compensated Employee whose Average Contribution Percentage is the highest until
the limit is not exceeded. The reduction, if any, required by this Section
shall be treated as an Excess Aggregate Contributions.
Excess Aggregate Contributions plus any income and minus any loss allocable
thereto shall be forfeited, if forfeitable, or if not forfeitable, distributed
on a pro-rata basis from the
31
<PAGE>
Participants' Accounts under the Plan subject to subsections 401(k) and
401(m) of the Code and used in the Actual Deferral Percentage and Average
Contribution Percentage tests. The distribution must be made no later than
the last day of the Plan Year following the Plan Year in which the Excess
Aggregate Contributions occurred. If forfeitable, the forfeitable amounts
will be applied to reduce Employer contributions for subsequent Plan Years.
Participants who are subject to the family member aggregation rules shall
have their Excess Aggregate Contributions allocated and distributed from
among the family members combined in determining the combined Average
Contribution Percentage in proportion to the contributions allocated to their
Accounts and used in determining the Excess Aggregate Contribution. If
distributed more than two and one-half (2-1/2) months after the end of the
Plan Year, a ten (10%) percent excise tax will be imposed on the Employer
maintaining the Plan with respect to those amounts. Excess Aggregate
Contributions shall be treated as Annual Additions under the Plan.
The income or loss allocable to Excess Aggregate Contributions is the
sum of the income or loss allocable to all the contributions under the Plan
subject to subsections 401(k) and 401(m) of the Code and used in the Actual
Deferral Percentage and Average Contribution Percentage tests with regard to
the Participant multiplied by a fraction the numerator of which is such
Participant's Excess Aggregate Contributions for the year and the denominator
is the Participant's Account balance attributable to Contribution Percentage
Amounts without regard to any income or loss occurring during such Plan Year.
ARTICLE VI
VESTING
6.1 NORMAL RETIREMENT. The Accrued Benefit of a Participant who reaches
his Normal Retirement Date shall be fully vested and nonforfeitable, and he
shall be entitled to a distribution in accordance with Article VII.
6.2 DEFERRED (LATE) RETIREMENT. A Participant whose employment is
continued past his Normal Retirement Date may defer payment of his benefits to
the date of his actual retirement, except as provided in Section 7.1. During
this continued period of employment, he shall continue to be eligible to share
in an allocation of Employer contributions and Forfeitures pursuant to Section
5.4. The value of benefits paid upon commencing his actual retirement shall be
the then value of his fully vested Accrued Benefit.
6.3 DISABILITY RETIREMENT DATE. The Disability Retirement Date of a
Participant is the date employment terminates by reason of his Disability.
Notwithstanding any other provisions of this Plan, no Participant shall be
deemed to have suffered a Disability if the Plan Administrator determines that
Disability results from:
(a) Chronic alcoholism; or
32
<PAGE>
(b) Self-addiction to narcotics; or
(c) An injury suffered while engaged in a felonious or criminal
enterprise; or
(d) Self-inflicted injury; or
(e) Service in the Armed Forces of the United States which entitles
the Participant to a veteran's disability benefit, but this
provision shall not prevent the Participant from qualifying for a
benefit under another provision of the Plan.
Upon incurring such Disability, his Accrued Benefit shall be fully vested
and nonforfeitable and will be distributed to him or for his benefit as
hereinafter provided in Article VII.
6.4 DEATH BENEFIT. If a Participant dies while in the employ of the
Employer, the Participant's Accrued Benefit shall become fully vested and
nonforfeitable. Such Accrued Benefit will be distributed, within a reasonable
period of time after the Participant's death, pursuant to Article VII.
6.5 VESTING OF PARTICIPANT'S VOLUNTARY CONTRIBUTIONS. Each Participant
shall, at all times, have a fully vested and nonforfeitable interest in his
Accrued Benefit attributable to voluntary contributions.
6.6 VESTING OF EMPLOYER CONTRIBUTIONS ON OTHER TERMINATIONS. If a
Participant's vested benefit is being determined prior to Normal or Deferred
Retirement for reasons other than death or Disability, he shall be vested in his
Accrued Benefit derived from Employer contributions in accordance with the
following schedule:
<TABLE>
<CAPTION>
Years of Service Vested Percentage
---------------- -----------------
<S> <C>
0-1 0
2 20
3 40
4 60
5 80
6 or more 100
</TABLE>
A Participant shall at all times be one hundred (100%) percent vested
and have a nonforfeitable interest in his Accrued Benefit attributable to
Employer contributions made pursuant to subsections 4.1(c) and (d) of the
Plan.
6.7 VESTING PROVISIONS UNDER AN AMENDED PLAN. If Section 6.7 is
amended hereafter, the nonforfeitable percentage of each Participant in the
Plan on the later of the date the
33
<PAGE>
amendment is adopted or the date the amendment is effective, shall not be
less than his percentage on such date computed under the Plan without regard
to such amendment.
In addition, each affected Participant who has completed at least three (3)
Years of Service by the end of the following election period, may elect within
such period to have his nonforfeitable percentage computed under the Plan
without regard to such amendment. Election period shall mean a period which
begins not later than the date the amendment is adopted and ends not earlier
than the latest of:
(a) the date which is sixty (60) days after the day the amendment is
adopted;
(b) the date which is sixty (60) days after the day the amendment
becomes effective; or
(c) the date which is sixty (60) days after the day the Participant
is issued written notice of the amendment by the Plan
Administrator.
For Plan Years beginning prior to June 1, 1989, "five (5)" shall be
substituted for "three (3)" in the second paragraph of this Section.
6.8 DETERMINATION OF YEARS OF SERVICE. All Years of Service with the
Employer shall be taken into account for purposes of Section 6.6 except:
(a) Years of Service completed prior to the attainment of age
eighteen (18);
(b) Years of Service excluded by the Break-In-Service rules of
Section 6.9.
6.9 BREAK-IN-SERVICE RULES. Following a Break-In-Service, pre-break
Years of Service shall be taken into account in determining a Participant's
vested Accrued Benefit, but only upon completion of a Year of Service after
such break. However, following five (5) consecutive Breaks-In-Service,
post-break Years of Service shall not be taken into account in determining
the vested percentage of the Participant's Accrued Benefit which accrued
prior to the five (5) consecutive Breaks-In-Service and any non-vested
portion of such pre-break Accrued Benefit shall be a Forfeiture. If a
Participant suffers five (5) consecutive Breaks-In-Service prior to having
any vested Accrued Benefit, he shall not be credited with any Years of
Service prior to the five (5) consecutive Breaks-In-Service unless the total
of consecutive Breaks-In-Service is less than the aggregate number of Years
of Service prior to such breaks.
6.10 FORFEITURES. The non-vested portion of the Participant's Accrued
Benefit to which he is not entitled by reason of the application of the
foregoing provisions shall be a Forfeiture and will be used to pay the
administrative expenses of the Plan. To the extent that any Forfeiture
remains, the Forfeitures attributable to profit sharing contributions will be
allocated in accordance with Section 5.4(a) and Forfeitures attributable to
matching contributions will be used to reduce future Employer matching
contributions. For Plan purposes:
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<PAGE>
(a) Said Forfeiture will be deemed to occur as of the end of the Plan
Year in which the earlier of the following occurs:
(1) The Participant incurs five consecutive Breaks-In-Service;
or
(2) The Participant receives a distribution of his vested
Accrued Benefit pursuant to subsection 7.3(a) not later than
the end of the second Plan Year following the Plan Year in
which he terminates employment. If a Participant has no
vested Accrued Benefit, upon termination of employment he
shall be deemed to have received a distribution pursuant to
subsection 7.3(a) on his date of termination.
(b) If a Participant forfeits a portion of his Accrued Benefit
pursuant to paragraph (a)(2) above, resumes employment with the
Employer, and becomes eligible to participate in the Plan, the
amount forfeited will be restored if the Employee repays to the
Plan the full amount of the distribution. Such repayment must be
made not later than the earlier of;
(1) The fifth (5th) anniversary of the Employee's reemployment
date; or
(2) The end of the Plan Year in which the Employee incurs five
consecutive Breaks-In-Service.
The amount to be restored hereunder shall come, to the extent possible,
from Forfeitures which are to be allocated in the Plan Year in which the
distribution is repaid and to the extent such Forfeitures are insufficient, the
Employer shall contribute the amount necessary to completely restore the
Participant's forfeited amount. The forfeited Accrued Benefit of a zero vested
Participant shall be restored in the Plan Year in which he is re-employed
provided he is re-employed prior to incurring five (5) consecutive
Breaks-In-Service.
ARTICLE VII
DISTRIBUTION OF BENEFITS
7.1 TIME FOR PAYMENT.
(a) NORMAL DISTRIBUTION. Except as provided under Section 7.5,
unless a Participant or Beneficiary shall otherwise elect a later
date by submitting to the Plan Administrator a signed written
statement describing the benefit and the date on which payment is
to commence:
35
<PAGE>
(1) Payment of benefits credited to accounts established
pursuant to section 2.1 shall commence within a reasonable
period of time after the Accounting Date next following the
Participant's termination of employment, unless the
distribution is to be made on account of attainment of
retirement under the Plan, death or disability in which case
distribution of all benefits shall commence within a
reasonable period of time after the earlier of the
Participant's death or the end of the Plan Year in which
termination of employment occurred. If a Participant elects
to defer distribution of his benefits, distribution of his
benefits shall be deferred until the Participant attains age
70-1/2 unless the Participant requests, in writing, an
earlier distribution of his Deferred Vested Benefit.
(2) Except as provided in subsection (1), payment of benefits
shall commence not later than the sixtieth (60th) day after
the close of the Plan Year in which the latest of the
following events occur:
(A) The Participant attains age sixty-five (65); or, if
earlier, reaches his Normal Retirement Date; or
(B) The tenth (10th) anniversary of the date on which the
Participant commenced participation in the Plan; or
(C) The Participant terminates his service with the
Employer.
(b) REQUIRED DISTRIBUTION. Notwithstanding the above, or Section
7.2, a Participant's benefit will be distributed to him in a
single sum not later than April 1, of the calendar year following
the calendar year in which attains age 70-1/2. A Participant who
continues to defer compensation beyond the age of 70-1/2 shall
have subsequent deferrals distributed in accordance with Section
401(a)(9) and regulations promulgated thereunder.
7.2 RETROACTIVE PAYMENTS. Notwithstanding the preceding subsection
7.1(a), payment of benefits may commence later than the latest date indicated
therein if:
(a) The amount of the payment cannot be ascertained by such date; or
(b) The Plan Administrator has been unable to locate the Participant
or Beneficiary by such date, after making reasonable efforts to
do so.
In such instance, a payment shall be made retroactive to the latest date
indicated in Section 7.1 no later than the sixtieth (60) day after the earliest
date on which the amount of the payment can be ascertained or the date on which
the Participant or Beneficiary is located (whichever is applicable).
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7.3 METHOD OF PAYMENT. A Participant or Beneficiary shall receive his
benefit in a cash lump sum payment subject to the requirements of subsection
7.1(b).
7.4 ELECTIONS REVOCABLE. Any election made under this Article may be
revoked in writing during the specified election period. After such election
has been revoked, another election under this Article may be made during the
specified election period.
7.5 DISTRIBUTIONS NOT IN EXCESS OF $3,500.00. Notwithstanding any other
provision of this Article, in the event that a Participant's vested Accrued
Benefit does not exceed Three Thousand Five Hundred ($3,500.00) Dollars at the
time the distributions is to commence (when combined with any prior
distributions), payment of his benefit shall be made pursuant to subsection
7.3(a) within the time period specified in Sections 7.1. For purposes of the
requirements contained in this Article, distributions shall commence on the
first day on which all events have occurred which entitle the Participant to
such benefit.
If distributions of benefits has commenced to the Participant or his
surviving spouse or in the event the Participant's Accrued Benefit does exceed
the amount specified in the preceding paragraph, no distribution under this
Plan, except as required by Section 7.1, may be made unless the Participant, or
the surviving spouse consents in writing to such distribution.
7.6 METHOD OF PAYMENT OF DEATH BENEFIT. Upon the Participant's death, any
benefit payable under the Plan shall be distributed as follows:
(a) If distribution of the Participant's interest had begun prior to
his death, the remaining portion, if any, of such interest will
be distributed at least as rapidly as the method of distribution
being used as of the date of the Participant's death.
(b) If distribution of the Participant's interest did not begin prior
to this death, the entire interest of the Participant will be
distributed in a single sum within five (5) years after his
death, unless the designated Beneficiary is the surviving spouse
of the Participant in which case it will be distributed in a
single sum not later than the date on which the Participant would
have attained age 70-1/2. If the surviving spouse dies before
distributions commence, this subsection (b) shall be applied as
if the surviving spouse were the Participant.
7.7 METHOD OF PAYMENT - VOLUNTARY CONTRIBUTIONS AND ROLLOVERS. The
Accrued Benefit derived from a Participant's voluntary contributions or rollover
contributions shall be paid at the same time as the Participant's Accrued
Benefit derived from Employer contributions.
7.8 NATURE OF DISTRIBUTION. Distribution of a Participant's benefit shall
consist of cash, property, or any combination thereof. If property other than
cash or its equivalent is distributed, such property shall be valued at its fair
market value on the date of such distribution.
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7.9 DISTRIBUTION WITHOUT SEVERANCE FROM SERVICE. If a Participant has
achieved his Normal Retirement Date, he may elect, to receive his vested Accrued
Benefit without severing his employment relationship with the Employer.
In addition, the Plan Administrator shall authorize, upon request by a
Participant, a withdrawal by such Participant at any time from his Employee
Savings Account, less earnings attributable thereto, provided that authorization
for such withdrawal and the amount thereof shall be given only on account of
hardship incurred by the Participant which imposes immediate and heavy financial
needs and only to the extent necessary to satisfy such financial need (subject
to a $1,000 minimum withdrawal). Determination of hardship shall be made by the
Plan Administration in a uniform and nondiscriminatory manner and in accordance
with safe harbor guidelines established by the Code or regulations thereunder.
(a) DEEMED IMMEDIATE AND HEAVY FINANCIAL NEED. A withdrawal shall be
deemed to be made on account of an immediate and heavy financial
need of the Participant if it is on account of:
(1) Funeral expenses of a family member:
(2) Medical expenses described in Code subsection 213(d) that
necessarily will be incurred or have been incurred by the
Participant, the Participant's spouse, or any dependents of
the Participant (as defined in Code section 152);
(3) Purchase (excluding mortgage payments) of a principal
residence for the Participant;
(4) Payment of tuition and related educational fees for the next
twelve (12) months of post-secondary education for the
Participant, his spouse, children, or dependents; or
(5) The need to prevent the eviction of the Participant from his
principal residence or foreclosure on the mortgage of the
Participant's principal residence.
The amount that is distributed on account of an immediate and
heavy financial need in accordance with the above shall be
grossed-up to include anticipated federal and state income taxes
and penalties resulting from the distribution.
(b) DEEMED NECESSARY TO SATISFY FINANCIAL NEED. A withdrawal will be
deemed to be necessary to satisfy an immediate and heavy
financial need of a Participant if all of the following
requirements are satisfied:
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(1) The distribution is not in excess of the amount of the
immediate and heavy financial need of the Participant based
upon his representation;
(2) The Participant has obtained all distributions (other than
hardship distributions), and all non-taxable loans under all
other plans maintained by the Employer;
(3) The Participant's contributions pursuant to subsection
4.1(c) under all plans maintained by the Employer shall be
suspended until the Entry Date coincident with or next
following the one year anniversary of the hardship
withdrawal; and
(4) All plans maintained by the Employer provide that the
Participant's limit on contributions pursuant to subsection
4.1(c) for his taxable year immediately following the
taxable year of the hardship withdrawal shall be reduced by
the amount of his contributions pursuant to subsection
4.1(c) for the taxable year of the hardship withdrawal.
(c) WITHDRAWAL FROM OTHER ACCOUNTS. No withdrawals shall be
permitted from any other Account maintained in the Plan for the
Participant.
(d) SPOUSAL CONSENT REQUIRED. All Participant withdrawals are
subject to written Participant and spousal consent to the extent
required by applicable law and regulations.
(e) WITHDRAWAL CHARGED TO PARTICIPANT'S ACCOUNT. The Plan
Administrator shall direct the Trustee to make a distribution to
a Participant of the amount which such Participant has elected to
withdraw and the amount of such withdrawal shall be charged by
the Plan Administrator against the Employee Savings Account of
the Participant. Withdrawals under this Section will be charged
against the Participant's Account as of the specified date of
withdrawal; and
(f) PLAN ADMINISTRATOR ESTABLISHES RULES. The Plan Administrator
shall have the power to establish uniform and nondiscriminatory
rules and from time to time to modify or change such rules
governing the manner and method by which Participant withdrawals
may be made.
7.10 DISTRIBUTION TO PERSONS DECLARED LEGALLY INCOMPETENT. In the event
that a Participant or Beneficiary is judicially determined to be legally
incompetent and a conservator or other person is judicially charged with the
care of such Participant, Beneficiary or his estate,
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all benefits to which the Participant or Beneficiary is entitled shall be
paid to such conservator or other person for the benefit of the Participant
or Beneficiary, whichever is applicable.
7.11 MISSING PARTICIPANTS AND BENEFICIARIES. If the Plan Administrator
mails by registered or certified mail, postage prepaid, to the last known
address of a Participant or Beneficiary, a notification that such Participant or
Beneficiary is entitled to a distribution hereunder, and if, (a) such
notification is returned by the post office because the addressee cannot be
located at such address and if neither the Employer nor the Plan Administrator
shall have any knowledge of the whereabouts of such Participant or Beneficiary
within three (3) years from the date such notification was mailed, or (b) within
three (3) years after such notification was mailed to such Participant or
Beneficiary, he does not respond thereto by informing the Plan Administrator of
his whereabouts, then in either of said events, such amount shall be held in the
Fund for the benefit of such Participant until such Participant is located, or
until such benefit is paid to a state by reason of escheat under the applicable
law of that state, whichever is earlier.
ARTICLE VIII
DESIGNATION OF BENEFICIARIES
8.1 DESIGNATION OF BENEFICIARIES. Each Participant shall have the right
to designate a Beneficiary and contingent Beneficiaries to receive the benefits
provided by this Plan. A Participant shall have the right at such time, and
from time to time, to change his Beneficiary. Such right to designate and change
a Beneficiary shall be exercised only by an instruction in writing signed by the
Participant and delivered to the Plan Administrator for his direction to the
Trustee. Such Beneficiary may be changed at any time or times by the filing of
a new designation with the Plan Administrator, and the most recent designation
shall govern. No designation of a Beneficiary shall become effective until it
has been acknowledged in writing by the Plan Administrator.
Notwithstanding the above, a Participant's sole primary Beneficiary shall
be the surviving spouse, if any, unless the participant's spouse consents, in
writing on a form to be provided by the Plan Administrator, to such other
Beneficiary as may be designated by the Participant. A consent by the
Participant's spouse shall not be effective until witnessed by the Plan
Administrator or Notary Public. Any consent submitted to the Plan Administrator
pursuant to this Section shall be effective only with respect to the
Participant's spouse executing said consent form. The form to be provided by
the Plan Administrator to the Participant's spouse for the purpose of waiving
the right to be the Participant's sole primary Beneficiary shall allow for the
designation of a specific Beneficiary and the form and percentage of benefit to
be received by the designated Beneficiary.
8.2 ABSENCE ON DEATH OF BENEFICIARIES. If a Participant dies without
having a Beneficiary designation then in force, or if all the Beneficiaries
designated by a Participant pre-decease him, his Beneficiary shall be his
surviving spouse, or if none, his surviving
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descendants, per stirpes, or if none, the Participant's Accrued Benefit shall
be paid to the executor or administrator of his estate for the benefit of the
Participant's estate.
ARTICLE IX
FUNDING INVESTMENT POLICY
This Plan has been established for the sole purpose of providing benefits
to the Participants and their Beneficiaries. In determining its investments
hereunder, the Trustee shall take account of the advice provided by the Plan
Administrator as to funding policy and the short and long range needs of the
Plan based on the evident and probable requirements of the Plan as to the time
benefits shall be payable and the requirements thereof. Benefits may be
provided through any combination of investment media designed to provide the
requisite liquidity, growth and security appropriate to this Plan.
ARTICLE X
LOANS TO PARTICIPANTS
10.1 APPLICATION FOR LOANS. Upon the application of any Participant, the
Plan Administrator, in accordance with its uniform, nondiscriminatory policy,
may approve a loan or loans to such Participant. Only one loan per participant
will be approved during any one calendar quarter and no more than one loan may
be outstanding at any time. All loans requested under this Article X, which are
approved, shall be issued to the Participant as soon as administratively
feasible within the next following calendar quarter. There is a $500 minimum
loan amount. The total of any such loan or loans made to a given Participant,
when added to the outstanding balance of all other loans to said Participant
from this Plan and all other qualified plans maintained by the Employer, shall
not exceed the lesser of:
(a) Fifty Thousand ($50,000) Dollars reduced by the excess, if any;
of
(1) the highest outstanding balance of loans from the Plan
during the one year period ending on the day before the day
on which such loan was made, over
(2) the outstanding balance of loans from the Plan on the date
on which such loan was made; or
(b) One-half (1/2) of the present value of the Participant's vested
accrued benefit in this Plan and all other qualified plans
maintained by the Employer.
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In no event, however, shall the cumulative amount of said loans under this
Plan exceed fifty (50%) percent of the present value of the Participant's vested
Accrued Benefit in this Plan. Any renegotiation, extension, renewal, or other
revision of a loan shall be treated as a new loan made on the date of the
renegotiation, extension, renewal or other revision. A Participant may
renegotiate a loan after the loan has been outstanding for a twelve-month
period. Thereafter, such loan may not be renegotiated prior to the anniversary
of such prior renegotiation.
10.2 REPAYMENT OF LOANS. Any such loan or loans shall be repaid by the
Participant through payroll withholding and the Trustee shall require that such
loan be repaid within a specified period of time not extending beyond the
earlier of his Normal Retirement Date or the fifth (5th) anniversary of the date
of the loan, with substantially level payments of principal and interest being
made not less frequently than quarterly. The above preceding five (5) year
limitation shall not apply to any loan used to acquire any dwelling unit which
within a reasonable time is to be used (determined at the time the loan is made)
as the principal residence of the Participant. A Participant who has received a
loan pursuant to this Article shall be required to continue repayments after
termination of employment until a reasonable period after the end of the next
following Accounting Date when said loan shall be immediately payable. In the
event of a default by a Participant on a loan taken under this Article XI, the
Trustee may not attach or otherwise enforce collection against such
Participant's account until such time as he would have been entitled to a
distribution under the terms of the Plan. Loans made on or before October 1,
1992 shall be governed by the terms of the Plan in existence when the loan was
made, and in accordance with applicable law.
10.3 INTEREST. All such loans shall be considered investments of the Fund,
interest being charged thereon at the prime rate of interest as published by the
Harris Trust and Savings Bank.
10.4 COLLATERAL. Each loan made pursuant to this Article to a Participant
shall not be secured by the Participant's vested Accrued Benefit, unless the
Participant's spouse, if married at the time the loan is granted, consents, in
writing, within the ninety (90) day period prior to the disbursement of the
loan, to the use of the Participant's Accrued Benefit as security for the loan
and grants the Trustee the right to attach or otherwise enforce collection of
the loan by reduction of the Participant's Accrued Benefit. A consent by the
Participant's spouse shall not be effective until witnessed by a notary public.
Loans under this Article shall not be approved unless the loan(s) can be
adequately secured using the Participant's vested Account Balance. No more than
fifty (50%) percent of the present value of the Participant's Accrued Benefit
shall be used as collateral on all loans to the Participant.
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ARTICLE XI
FIDUCIARY CAPACITY AND RESPONSIBILITY
11.1 GENERAL FIDUCIARY STANDARD OF CONDUCT. Each Fiduciary of the Plan
shall discharge his duties hereunder solely in the interest of the
Participants and their Beneficiaries and for the exclusive purposes of
providing benefits to Participants and their Beneficiaries and defraying
reasonable expenses of administering the Plan. Each Fiduciary shall act with
the care, skill, prudence and diligence under the circumstances that a
prudent man, acting in a like capacity and familiar with such matters, would
use in conducting an enterprise of like character and with like aims, in
accordance with the documents and instruments governing this Plan, insofar as
such documents and instruments are consistent with this standard.
11.2 PRIOR ACTS. No Fiduciary shall be liable for any acts occurring
prior to the period of time during which the Fiduciary was actually serving
in such capacity with respect to the Plan.
11.3 INVESTMENT MANAGER. If an Investment Manager has been appointed
pursuant to Section 12.8, no Trustee shall be liable for the acts or
omissions of such Investment Manager or be under any obligation to invest or
otherwise manage any asset of the Plan which is subject to the management of
such Investment Manager.
11.4 INSURANCE AND INDEMNITY. The Plan may purchase, as an authorized
expense, liability insurance for the Plan and/or for its Fiduciaries to cover
liability or losses occurring by reason of the acts or omissions of a
Fiduciary, providing such insurance policy permits subrogation by an Insurer
against the Fiduciary, in the case of a breach by such Fiduciary, for any
liabilities, costs or expenses which are judicially determined to be due to
the gross negligence or willful misconduct of such Fiduciary.
11.5 DISQUALIFICATION FROM FIDUCIARY SERVICE. No person shall be
permitted to serve as a Fiduciary, Trustee, custodian, counsel, agent or
employee of this Plan or as a consultant to this Plan who has been convicted
of any of the criminal offenses specified in ERISA.
11.6 BONDING. Every person who handles funds or other property or
assets of the Plan shall be bonded in accordance with ERISA.
ARTICLE XII
THE TRUSTEE
12.1 CREATION AND ACCEPTANCE OF TRUST. The Trustee, by joining in the
execution of this Plan, agrees to act in accordance with the express terms
and conditions hereof.
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12.2 TRUSTEE CAPACITY - CO-TRUSTEES. The Trustee may be a bank, trust
company or other corporation possessing trust powers under applicable state
and federal law or one or more individuals or any combination thereof. When
there are two or more Trustees, they are authorized to allocated specific
responsibilities, obligations or duties among themselves by their written
agreement. An executed copy of such written agreement is to be delivered to
and retained by the Plan Administrator. In the event of more than one
Trustee, any action shall be taken at the direction of a majority of such
Trustees.
12.3 RESIGNATION AND REMOVAL - APPOINTMENT OF SUCCESSOR TRUSTEE. Any
Trustee may resign at any time by delivering to the Board of Directors a
written notice of resignation, which notice may be waived by the Board of
Directors, to take effect at a date specified therein, which shall not be
less than thirty (30) days after the delivery thereof. The Trustee may be
removed by the Board of Directors with or without cause, by tendering to the
Trustee a written notice of removal to take effect at a date specified
therein. Upon such removal or resignation of a Trustee, the Board of
Directors shall either appoint a successor Trustee who shall have the same
powers and duties as those conferred upon the resigning or discharged
Trustee, or, if more than one Trustee is acting, determine that a successor
shall not be appointed and the number of Trustees shall be reduced by one.
12.4 TAXES, EXPENSES AND COMPENSATION OF TRUSTEE. The Trustee shall
deduct from and charge against the Trust any taxes paid by it which may be
imposed upon the Trust, or the income thereof, or which the Trustee is
required to pay with respect to the interest of any Participant or
Beneficiary therein. The Employer may pay the Trustees' reasonable expenses
in administering the Plan and a reasonable compensation for its services as
Trustee hereunder, at a rate to be agreed upon from time to time; provided,
however, that no full-time Employee shall receive any compensation for acting
as Trustee hereunder.
12.5 TRUSTEE ENTITLED TO CONSULTATION. The Trustee shall be entitled to
advice of counsel in any case in which the Trustee shall deem such advice
necessary. With the exception of those powers and duties specifically
allocated to the Trustee by the express terms of this Plan, it shall not be
the responsibility of the Trustee to interpret the terms of the Plan and the
Trustee may request, and is entitled to receive, guidance and written
direction from the Plan Administrator on any point regarding construction or
interpretation of the Plan documents.
12.6 RIGHTS, POWERS AND DUTIES OF TRUSTEE. The rights, powers and
duties of the Trustee shall be as follows:
(a) The Trustee shall be responsible for the safekeeping of the
assets of the Trust in accordance with the provisions of the Plan
and any amendments hereto. The duties of the Trustee under this
Agreement shall be determined solely by the express provisions
hereof and no other further duties or responsibility shall be
implied. Subject to the terms of this Plan, the Trustee shall be
fully protected and shall incur no liability in acting in
reliance upon the written instructions or directions of the Plan
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Administrator, a duly designated Investment Manager under Section
12.8, or any other named Fiduciary.
(b) The Trustee shall have all powers necessary or appropriate for
the orderly and efficient performance of its duties hereunder,
including but not limited to those specified in this Section
12.6. He shall have the power generally to do all acts, whether
or not expressly authorized, which the Trustee in the exercise of
his fiduciary responsibility may deem necessary or desirable for
the protection of the Trust and the assets thereof.
(c) The Trustee shall have the power to collect and receive any and
all monies and other property due hereunder and to give full
discharge and release therefor; to settle, compromise or submit
to arbitration any claims, debts or damages due to or owing to or
from the Trust; to commence or defend suits or legal proceedings
whenever, in his judgment, any interest of the Trust requires it;
and to represent the Trust in all suits or legal proceedings in
any court of law or equity or before any other body or tribunal.
(d) The Trustee shall cause assets of the Trust to be registered in
his name as Trustee and shall be authorized to exercise any and
all ownership rights regarding these assets, subject to the terms
of the Plan.
(e) The Trustee may temporarily hold cash balances and shall be
entitled to deposit any funds received in a bank account in the
name of the Trust in any bank selected by the Trustee. Any such
deposit may be made with or without interest.
(f) The Trust shall obtain and deal with any assets of this Trust
held or received under this Plan only in accordance with written
directions from the Plan Administrator and he shall not be
obligated to take any action under this Plan except upon such
written directions. The Trustee shall be under no duty to
determine any facts or the propriety of any action taken or
omitted by him in good faith pursuant to instructions from the
Plan Administrator.
(g) If the whole or any part of the Trust shall become liable for the
payment of any estate, inheritance, income or other tax which the
Trustee shall be required to pay, the Trustee shall have full
power and authority to pay such tax out of any monies or other
property in his hands for the account of the person whose
interest hereunder is so liable. Prior to making any payment,
the Trustee may require such releases or other documents from any
lawful taxing authority as he shall deem necessary. The Trustee
shall not be liable for any nonpayment of tax when it distributes
an interest hereunder on instructions from the Plan
Administrator.
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(h) The Trustee shall keep a full, accurate and detailed record of
all transactions of the Trust which the Plan Administrator shall
have the right to examine at any time during the Trustee's
regular business hours. Within sixty (60) days following the
close of the Plan Year, the Trustee shall furnish the Plan
Administrator with a statement of account. This account shall
set forth all receipts, disbursements and other transactions
effected by the Trustee during said year. The Plan Administrator
shall promptly notify the Trustee in writing of his approval or
disapproval of the account. The Plan Administrator's failure to
disapprove the account within sixty (60) days after receipt shall
be considered an approval. The approval by the Plan
Administrator shall be binding as to all matters embraced in any
statement to the same extent as if the account of the Trustee had
been settled by judgment or decree of a court of competent
jurisdiction under which the Trustee, Employer and all persons
having or claiming any interest in the Trust were parties;
provided, however, that the Trustee may have its account
judicially settled if he so desires.
(i) The Trustee is hereby authorized to execute all necessary
receipts and releases to any parties concerned.
(j) If, at any time, there shall be dispute as to the person to whom
payment or delivery of monies or property should be made by the
Trustee, or regarding any action to be taken by the Trustee, the
Trustee may postpone such payment, delivery or action, retaining
the funds or property involved, until such dispute shall have
been resolved in a court of competent jurisdiction or the Trustee
shall have been indemnified to its satisfaction or until it has
received written direction from the Plan Administrator.
(k) The Trustee shall have no duty or responsibility with respect to
the determination of matters pertaining to the eligibility of any
Employee to become or remain a Participant hereunder, the amount
of benefit to which any Participant or Beneficiary shall be
entitled hereunder; all such responsibilities being vested in the
Plan Administrator. The Trustee shall have no duty to collect
any contribution from the Employer.
12.7 INVESTMENT AUTHORITY. Subject to the written direction of the Plan
Administrator or the written direction of a duly appointed Investment Manager
under Section 12.8, the Trustee is hereby granted full power and authority;
(a) To hold and administer all contributions made by the Employer to
the Trust and all income or other property derived therefrom as a
single trust fund, except as otherwise provided in this
Agreement.
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(b) To invest the Trust Fund or any portion thereof in obligations
issued or guaranteed by the United States of America or of any
instrumentalities thereof, or in other bonds, notes, debentures,
mortgages, preferred or common stocks, options to buy or sell
stocks or other securities, option trading, mutual fund shares,
or in such other property, real or personal, limited partnership
interests, either within or without the State of Illinois, as the
Trustee shall determine.
(c) To cause the Trust Fund or any portion thereof to be invested in
a common trust fund established and maintained by a national or
state bank for the collective investment of fiduciary funds,
provided such common trust fund is a qualified trust under the
applicable section of the Code, or corresponding provisions of
future federal internal revenue laws, and is exempt from income
tax under the applicable section of the Code. In the event any
assets of the Trust Fund are invested in such common trust fund,
the declaration of trust creating such common trust fund, as it
may be amended from time to time, shall be incorporated into this
Agreement by reference and made a part hereof.
(d) To retain in cash or other property unproductive of income,
without liability for interest, so much of the Trust assets as
may be determined to be necessary and proper.
(e) To manage, control, sell, convey, exchange, petition, divide,
subdivide, improve, repair, grant options, sell upon deferred
payments, lease without limit as determined for any purpose,
compromise, arbitrate or otherwise settle claims in favor of or
against the Trust, institute, compromise and defend actions and
proceedings, and to take any other action necessary or desirable
in connection with the administration of the Trust.
(f) To vote any stock, bonds, or other securities of any corporation
or any other issuer; otherwise consent to or request any action
on the part of any such corporation or other issuer; to give
general or special proxies or powers of attorney, with or without
power of substitution; to participate in any reorganization,
recapitalization, consolidation, merger or similar transaction
with respect to such securities; to deposit such stocks or other
securities in any voting trusts, or with any protective or like
committee, or with the trustee of said voting trust, or with the
depositories designated thereby; to exercise any subscription
rights and conversion privileges; and generally to do all such
acts, execute all such instruments, take all such proceedings and
exercise all such rights, powers and privileges with respect to
the stock or other securities or property constituting the Trust
Fund as if the Trustee were the absolute owner thereof.
Notwithstanding any other provisions of this Agreement, the
Trustee may cause securities
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or other property to be held in its own name, or in the name of
its nominee, with or without a disclosure of the Trust.
(g) If the Plan provides for directed investment accounts or is
amended to provide for directed investment accounts, the Trustee
shall inform the Participant that investment in any collectible
shall be treated as a distribution from the Plan and, therefore,
is prohibited under the terms of the Plan. For purposes of this
subsection, the term "collectible" means any work of art, rug,
antique, metal, gem, stamp, coin, alcoholic beverage, or any
other tangible personal property which might be designated a
collectible under the code or regulations.
The Trustee shall exercise the above investment authority solely in the
interest of and for the exclusive benefit of Plan Participants and their
Beneficiaries, with the care, skill, prudence and diligence that a prudent
man acting in a like capacity and familiar with such matters would use in
exercising such authority.
12.8 EMPLOYMENT OF INVESTMENT MANAGER. The Trustee may employ as an
Investment Manager or managers to manage all or any part of the Trust Fund
(i) investment advisor registered under the Investment Advisors Act of 1940,
(ii) bank as defined in said Act, or (iii) insurance company qualified to
perform investment management services in more than one state, which
Investment Manager shall have all powers of the Trustee in the management of
such part of the Fund, including the power to acquire or dispose of assets.
The Trustee shall notify the Employer in writing of any appointment of an
Investment Manager, and shall provide the Employer with the Investment
Manager's written acknowledgement that it is a Fiduciary with respect to the
Plan.
12.9 TRUSTEE INDEMNIFICATION. The Employer shall indemnify and hold
harmless the Trustee for and from the assertion or occurrence of any
liability to any party for any act or omission of the Trustee pursuant to any
direction or lack of direction to the Trustee from the Plan Administrator.
The Employer shall also indemnify and hold harmless the Trustee from any
liabilities asserted or incurred in the exercise or performance of the
rights, powers, obligations and discretions hereunder, unless such
liabilities shall arise out of the gross negligence, fraud or bad faith of
the Trustee. Such indemnification obligation of the Employer shall not be
applicable to the extent that any such liability is fully covered by
insurance.
ARTICLE XIII
PLAN ADMINISTRATOR
13.1 DESIGNATION. The Plan Administrator, by joining in the execution
of this Plan agrees to act in accordance with the express terms and
conditions hereof.
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13.2 COMMITTEE ACTING AS PLAN ADMINISTRATOR. If more than one person
shall be appointed by the Employer to serve as a member of the Committee, the
members are authorized to allocate specific responsibilities, obligations or
duties among themselves by their written agreement. An executed copy of such
written agreement is to be delivered to and retained by the Employer. Except
as indicated in the above written agreement, any action taken by the
Committee shall be taken at the direction of a majority of such members.
13.3 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. The Plan
Administrator (or any member of the Committee) may resign at any time by
delivering to the Employer a written notice of resignation, to take effect at
a date specified thereon, which shall not be less than thirty (30) days after
the delivery thereof. The Plan Administrator may be removed by the Employer,
with or without cause, by tendering to the Plan Administrator written notice
of removal to take effect at a date specified therein. Upon receipt of such
notice of resignation or upon tendering such notice of removal, the Employer
may designate a successor to the departing member of the Committee, who must
signify his acceptance as a Fiduciary in writing. If the Employer fails to
designate a successor, the remaining members of the Committee shall act
alone. In the event the last member of the Committee departs, and the
Employer fails to designate a successor, the Employer shall act as the Plan
Administrator until a successor Plan Administrator (or Committee) has been
appointed and has accepted such appointment.
13.4 DUTIES AND RESPONSIBILITIES. The primary responsibility of the
Plan Administrator is to administer the Plan for the exclusive benefit of the
Participants and their Beneficiaries, subject to the specific terms of the
Plan. The Plan Administrator shall administer the Plan and shall construe and
determine all questions of interpretation or policy in a manner consistent
with the Agreement and, except as provided in Section 14.5, his construction
or determination in good faith shall be final and conclusive. The Plan
Administrator may correct any defect, supply any omission, or reconcile any
inconsistency in such manner and to such extent as he shall deem necessary or
advisable to carry out the purpose of this Agreement; provided, however, that
any interpretation or construction shall be done in a non-discriminatory
manner and shall be consistent with the intent that the Plan shall continue
to be deemed a qualified plan pursuant to the Code, and shall comply with the
terms of ERISA. The Plan Administrator shall have all powers necessary or
appropriate to accomplish his duties under this Plan, including but not
limited to:
(a) The duties of the general administration of the Plan, including
but not limited to the following:
(1) To determine all questions relating to the eligibility of
Employees to participate in or remain a Participant
hereunder;
(2) To compute, certify and direct the Trustee with respect to
the amount and kind of benefits to which any Participant
shall be entitled hereunder;
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<PAGE>
(3) To authorize and direct the Trustee with respect to all
disbursements from the Trust;
(4) To maintain all the necessary records for the administration
of the Plan;
(5) To interpret the provisions of the Plan and to make and
publish rules and regulations for the Plan consistent with
the terms hereof;
(6) To compute the sums of money necessary to be contributed to
the Trust, if any;
(7) To advise the Trustee regarding the short and long-term
liquidity needs of the Plan in order that the Trustee might
direct its investments accordingly;
(8) To advise, counsel and direct the Trustee with respect to
all investments of principal and income and with other
matters concerning the Trust corpus; and
(9) To advise, counsel and assist any Participant regarding any
rights, benefits or elections available under the Plan.
(b) The Plan Administrator shall also be responsible for preparing
and filing such annual disclosure reports and forms as may be
required from time to time by the Secretary of Labor, the
Secretary of the Treasury or other governmental authorities.
(c) The Plan Administrator must furnish to each Participant covered
under the Plan, and to each Beneficiary who is entitled to
receive benefits under the Plan, such information and reports as
required by law or by the terms of the Plan.
(d) The Plan Administrator shall make copies of this Plan and Trust,
plan description, latest annual report, and any other instruments
under which the Plan was established or is operated available for
examination by any Plan Participant or Beneficiary in the
principal office of the Employer.
(e) Whenever it is determined by the Plan Administrator to be in the
best interest of the Plan and its Participants or Beneficiaries,
the Plan Administrator may request such variances, deferrals,
extensions, or exemptions or make such elections for the Plan as
may be available under the law.
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(f) The Plan Administrator shall be responsible for procuring bonding
for all persons dealing with the Plan or its assets as may be
required by law.
13.5 EXPENSES AND COMPENSATION. The expenses necessary to administer
the Plan shall be paid by the Trustee out of the Fund to the extent not borne
by the Employer, including but not limited to expenses involved in retaining
necessary professional assistance for an attorney, an accountant, an actuary,
a pension consultant or an investment advisor.
13.6 PLAN ADMINISTRATOR INDEMNIFICATION. The Employer shall indemnify
and hold harmless the Plan Administrator (or any member of the Committee) for
any liabilities asserted or incurred in the exercise or performance of the
rights, powers, obligations and discretions hereunder, unless such
liabilities shall arise out of the gross negligence, fraud or bad faith of
the Plan Administrator. Such indemnification obligation of the Employer shall
not be applicable to the extent that any such liability is covered by
insurance.
ARTICLE XIV
EMPLOYEE RIGHTS AND CLAIMS PROCEDURE
14.1 REGULAR REPORTS AND DISCLOSURE REQUIREMENTS. Every Participant
covered under the Plan and every Beneficiary receiving benefits under the
Plan shall receive a summary plan description, summary of the latest annual
report of the Plan and such other information as may be required by law. Any
information given to Participants shall also be available in Spanish.
14.2 INFORMATION GENERALLY AVAILABLE. The Plan Administrator shall make
copies of this Plan and Trust, the plan description, latest annual report, or
other instruments under which the Plan was established or is operated
available for examination by any Plan Participant or Beneficiary in the
principal office of the Employer and such other locations as may be necessary
to make such information reasonably accessible to all interested parties.
Subject to a reasonable charge to defray the cost of furnishing such copies,
the Plan Administrator shall, upon the written request of any Participant or
Beneficiary, furnish a copy of any of the above documents to the respective
party.
14.3 BENEFIT STATEMENTS. Upon the written request of a Participant or
Beneficiary, the Plan Administrator shall provide such Participant or
Beneficiary with a written statement indicating the amount of his Accrued
Benefit, the percentage of such Accrued Benefit in which he is vested, and
the vested Accrued Benefit to which he is entitled. Such statement shall be
based on the latest information available and shall be provided no later than
the later of sixty (60) days after receipt of the request or one hundred
twenty (120) days after the end of the Plan Year which immediately precedes
the Plan Year in which the request is made. The Plan Administrator is not
required to furnish upon request more than one benefit statement during any
twelve (12) month period.
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The Plan Administrator, upon making a distribution qualifying for
rollover treatment, as prescribed in section 402(a) of the Code shall provide
a written explanation to the recipient that the taxes on the distribution may
be deferred to the extent transferred to another qualified plan or individual
retirement account within sixty (60) days after the date on which the
recipient received the distribution and, to the extent applicable, the
distribution's eligibility for five (5) or ten (10) year income averaging,
whichever is applicable, and capital gains treatment. The explanation
required hereunder may be given on an officially approved notice form
provided by the Secretary of the Treasury.
In addition to the above, the Plan Administrator shall furnish a benefit
statement to each Participant who terminates service with the Employer. Such
statement shall report benefits as of the date of his termination.
14.4 CLAIM PROCEDURE. Any Participant or Beneficiary who believes he is
entitled to a payment of a benefit for which provision is made in this Plan
shall file a written claim with the Plan Administrator and shall furnish such
evidence of entitlement to benefits as the Plan Administrator may reasonably
require. The Plan Administrator shall notify the Participant or Beneficiary
in writing as to the amount of the benefit to which he is entitled, the
duration of such benefit, the time the benefit is to commence and other
pertinent information concerning his benefit. If a claim for a benefit is
denied by the Plan Administrator, in whole or in part, the Plan Administrator
shall provide adequate notice in writing to the Participant or Beneficiary
whose claim for a benefit has been denied within the ninety (90) day period
following receipt of the claim by the Plan Administrator. If, under special
circumstances, the Plan Administrator requires an extension of time for
processing the claim, written notice of the extension shall be furnished to
the claimant prior to the termination of the initial ninety (90) day period.
In no event shall such extension exceed a period of ninety (90) days from the
end of such initial period. If written notice of the denial is not furnished
in accordance with the above, the claim shall be deemed denied and the
claimant should proceed with an appeal of the denial, as provided below. The
notice regarding the benefit denied shall set forth (a) the specific reason
or reasons for the denial; (b) specific reference to pertinent Plan
provisions on which the denial is based; (c) a description of any additional
material or information necessary for the claimant to perfect the claim and
an explanation of why such material or information is necessary; and (d) a
statement that any appeal of the denial must be made in writing to the Plan
Administrator, within sixty (60) days after receipt of the notice, and
include a full description of the pertinent issues and the basis of the
appeal. If the Participant or Beneficiary fails to appeal such action to the
Plan Administrator in writing within the prescribed period of time, the Plan
Administrator's adverse determination shall be final, binding and conclusive.
14.5 APPEAL OF DENIAL OF CLAIM. If the Plan Administrator receives from
a Participant or a Beneficiary, within the prescribed period of time, a
notice of an appeal of the denial of a claim for benefit, such notice shall
immediately be submitted to the Board of Directors of the Employer. The
Board of Directors may hold a hearing or otherwise ascertain such facts as it
deems necessary and shall render a decision which shall be binding upon both
parties. The decision of the Board of Directors shall be in writing and a
copy thereof shall be sent by certified
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<PAGE>
mail to each party within sixty (60) days after the receipt by the Plan
Administrator of the notice of appeal, unless special circumstances require a
reasonable extension of such sixty (60) day period, but in any event, not
later than one hundred twenty (120) days after such receipt.
ARTICLE XV
AMENDMENT AND TERMINATION
15.1 AMENDMENT. The Employer reserves the right to amend the Plan at
any time by action of its Board of Directors. No such amendment shall divest
a Participant of any amount to which he is already entitled, or otherwise
serve to reduce, either directly or indirectly, the Participant's Accrued
Benefit. In order to meet the applicable requirements of ERISA and Code,
amendments may be made retroactively, if deemed necessary or appropriate by
the Employer.
15.2 VOLUNTARY TERMINATION OF PLAN. The Employer shall have the right
to terminate the Plan at any time by delivery to the Trustee an instrument in
writing which designates such termination, in which case, if the Plan is not
replaced by a comparable Plan qualified under the applicable sections of the
Code, the provisions of Section 15.5 shall be applicable. A complete and
permanent discontinuance of Employer contributions shall be deemed a
termination of the Plan for this purpose.
15.3 INVOLUNTARY TERMINATION OF PLAN. The Plan may terminate and the
provisions of said Section 15.5 shall be applicable if (a) all the Employers
are dissolved or adjudicated bankrupt or insolvent in appropriate
proceedings, or if a general assignment is made by each Employer for the
benefit of creditors, or (b) all the Employers should lose its identity by
consolidation or merger into one or more corporations or organizations,
unless within ninety (90) days after such consolidation or merger, such
corporations or organizations elect to continue the Plan as provided in
Section 16.1.
15.4 VESTING UPON TERMINATION. Upon termination or partial termination
of the Plan, each affected Participant's Accrued Benefit shall become fully
vested and nonforfeitable. Following termination of the Plan, the Trust will
continue in existence until the Accrued Benefit of each Participant has been
distributed or until the assets of the Trust have been transferred to another
Plan in accordance with Section 16.3.
15.5 DISTRIBUTION ON TERMINATION. Upon termination of the Plan, the
liability of the Employer to make contributions shall cease, and the Employer
will determine when to liquidate the Trust. After payment of all expenses of
liquidation, the Plan Administrator shall allocate the assets of the Plan
(available to provide benefits) among the Participants and Beneficiaries of
the Plan in accordance with Section 5.3, and commence distribution pursuant
to Article VII.
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ARTICLE XVI
PORTABILITY
16.1 CONTINUANCE OF THE PLAN BY A SUCCESSOR CORPORATION. In the event
of the dissolution, consolidation or merger of the Employer, or the sale by
the Employer of its assets, the resulting successor person or persons, firm
or corporations may continue this Plan by (a) direction from such person or
persons, or firms, if not a corporation, and if a corporation, by adopting
the same by resolution of its Board of Directors; (b) appointing a new
Trustee as though the Trustee (including all members of a group of
individuals acting as Trustee) had resigned; and (c) executing a proper
supplemental agreement with the new Trustee. In such event, each Participant
in this Plan shall have an interest in the Plan after the dissolution,
consolidation, merger, or sale of assets, at least equal to the interest
which he had in the Plan immediately before the dissolution, consolidation,
merger or sale of assets. Any Participants who do not accept a position with
such successor within a reasonable time shall be deemed to be terminated.
If, within ninety (90) days from the effective date of such dissolution,
consolidation, merger, or sale of assets, such successor does not adopt this
Plan, as provided herein, the Plan shall automatically be deemed terminated
as provided in Section 15.3.
16.2 MERGER WITH OTHER PLAN. The Plan may not be merged or consolidated
with, nor may its assets or liabilities be transferred to, any other plan
unless each Participant in the Plan would, if the resulting plan were then
terminated, receive a benefit immediately after the merger, consolidation, or
transfer which is equal to or greater than the benefit he would have been
entitled to receive immediately before the merger, consolidation, or
transfer, if the Plan had then terminated.
16.3 TRANSFER TO OTHER QUALIFIED PLANS. The Trustee, upon written
direction by the Plan Administrator, shall transfer some or all of the assets
held under the Trust to another plan or trust of the Employer meeting the
requirements of the Code relating to qualified plans and trusts, whether such
transfer is made pursuant to a merger or consolidation of this Plan with such
other plan or trust or for any other allowable purpose. In addition, upon
the termination of employment of any Participant and receipt by the Plan
Administrator of a request in writing, the Participant may request that any
distribution from the Trust to which he is entitled be transferred to an
Individual Retirement Account, an Individual Retirement Annuity, or any other
plan or trust which is maintained by some other employer for the benefit of
its employees and satisfies the applicable requirements of the Code relating
to qualified plans and trusts. Upon receipt of any such written direction,
the Plan Administrator shall direct the Trustee to cause to be transferred
the assets so directed and, as appropriate, shall direct the Insurer to
transfer to the new Trustee any applicable insurance policies issued by it.
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ARTICLE XVII
MISCELLANEOUS
17.1 LIMITED REVERSION. No part of the corpus or income of the Trust
Fund shall revert to the Employer or be used for, or diverted to, purpose
other than for the exclusive benefit of Participants and their Beneficiaries;
provided, however, that:
(a) The general prohibition against reversion will not preclude the
return of the contribution made by the Employer to the Plan if:
(1) The contribution is made by reason of a mistake of fact.
(2) The contribution is conditioned on the initial qualification
of the Plan under the Code and the Plan does not so
initially qualify.
(3) The contribution is conditioned on its deductibility under
section 404 of the Code.
(b) The return to the Employer of the amount involved must be made
within one year of the mistaken payment of the contribution, the
date of denial of the qualification, or the disallowance of the
deduction.
(c) The amount which may be returned to the Employer is the excess of
(1) the amount contributed over (2) the amount that would have
been contributed had there not occurred a mistake of fact or a
mistake in determining the deduction. Earnings attributable to
the excess contribution may not be returned to the Employer, but
losses attributable thereto must reduce the amount to be so
returned.
17.2 EXECUTION OF RECEIPTS AND RELEASES. Any payment to any person
eligible to receive benefits under this Plan, in accordance with the
provisions of this Plan, shall, to the extent thereof, be in full
satisfaction of all claims hereunder. The Plan Administrator may require
such person, as a condition precedent to such payment, to execute a receipt
and release therefore in such forms as he shall determine.
17.3 RIGHTS OF PARTICIPANTS ARE LIMITED. Neither the creation of this
Plan and Trust nor anything contained in this Agreement shall be construed as
giving any Participant, Beneficiary or Employee any equity or other interests
in the assets, business affairs of the Employer, or the right to complain
about any action taken by the Employer, or about any policy adopted or
pursued by the Employer, or as giving any Employee the right to be retained
in the service of the Employer; and all Employees shall remain subject to
discharge to the same extent as if this Agreement had never been executed.
Prior to the time that distributions are made in conformity with the
provisions of this Agreement, neither the Participants, nor their spouses,
Beneficiaries,
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<PAGE>
heirs-at-law, or legal representatives shall receive or be entitled to
receive cash or any other thing of current exchangeable value, from either
the Employer or the Trustee as a result of the existence of the Trust Fund.
17.4 PERSONS DEALING WITH TRUSTEE PROTECTED. No Person dealing with the
Trustee shall be required or entitled to see to the application of any money
paid or property delivered to the Trustee, or determine whether or not the
Trustee is acting pursuant to the authorities granted to the Trustee
hereunder or to authorizations or directions herein required. The
certificate of the Trustee that the Trustee is acting in accordance with this
Agreement shall protect any person relying thereon.
17.5 NO ALIENATION OR ASSIGNMENT. The right of any Participant or his
Beneficiary in any distribution hereunder shall not be subject to alienation,
assignment or transfer, voluntarily or involuntarily, by operation of law or
otherwise, except as may be expressly permitted herein and no Participant
shall assign, transfer, or dispose of such right nor shall any such right be
subjected to attachment, execution, garnishment, sequestration, or other
legal, equitable or other process.
Notwithstanding the above, the restrictions against alienation or
assignment shall not apply to a domestic relations order determined to be a
"qualified domestic relations order" pursuant to subsection 414(p) of the
Code and the regulations issued thereunder.
17.6 NOTICES. Any notice or direction to be given in accordance with
the Plan shall be deemed to have been effectively given if sent by certified
mail, return receipt requested, to the recipient at the recipient's last
known address. At any time that a group of individuals is acting as Trustee,
notice to the Trustee may be given by giving notice to any one or more of
such individuals.
17.7 GOVERNING LAW. The provisions of this Plan shall be construed,
administered and enforced in accordance with the provisions of ERISA and, to
the extent applicable, the laws of the State of Illinois. All contributions
to the Trust shall be deemed to take place in the State of Illinois.
17.8 SEVERABILITY OF PROVISIONS. In the event that any provision of
this Plan shall be held to be illegal or invalid for any reason, said
illegality or invalidity shall not affect the remaining provisions, but shall
be fully severable, and this Plan shall be construed and enforced as if said
illegal or invalid provisions had never been inserted herein.
17.9 GENDER AND NUMBER. Whenever appropriate, words used in the
singular shall include the plural, and the masculine gender shall include the
feminine gender.
17.10 BINDING EFFECT. The Plan, and all action and decisions
hereunder, shall be binding upon the heirs, executors, administrators,
successors and assigns of any and all parties hereto and Participants,
present and future.
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<PAGE>
ARTICLE XVIII
EXECUTION OF AGREEMENT
18.1 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original, and no other
counterpart need be produced.
18.2 ACCEPTANCE BY TRUSTEE. The Trustee, by joining in the execution of
this Agreement, hereby signifies the Trustee's acceptance thereof.
18.3 ACCEPTANCE BY PLAN ADMINISTRATOR. The Plan Administrator by
joining in the execution of this Agreement, hereby signifies the Plan
Administrator's acceptance thereof.
18.4 EXECUTION. To record the adoption of this Plan the Employer has
caused this Agreement to be executed by its duly qualified officers and its
corporate seal to be hereunto affixed, and the Trustee and Plan Administrator
have executed this Agreement, as of the day and year first above written.
57
<PAGE>
IN WITNESS WHEREOF, Zebra Technologies Corporation has caused this
Agreement to be executed upon the signatures of its duly qualified officers
and Edward Kaplan and Gerhard Cless as Trustees, have hereunto set their hand
and seal as of the date first set above.
ZEBRA TECHNOLOGIES CORPORATION
____________________________________
By its President
ATTEST:
___________________________________
Secretary
____________________________________
Edward Kaplan, Trustee
ZEBRA TECHNOLOGIES CORPORATION
PLAN ADMINISTRATOR
___________________________________ ____________________________________
By its President Gerhard Cless, Trustee
58
<PAGE>
FIRST AMENDMENT
TO THE
ZEBRA TECHNOLOGIES CORPORATION
PROFIT SHARING AND SAVINGS PLAN
THIS AMENDMENT made and entered into the ____ day of
____________________, 1993, by and between ZEBRA TECHNOLOGIES CORPORATION (the
"Employer") and EDWARD KAPLAN and GERHARD CLESS, as Co-Trustees (the
"Trustees").
WHEREAS, the Employer heretofore adopted the ZEBRA TECHNOLOGIES
CORPORATION PROFIT SHARING AND SAVINGS PLAN (the "Plan") originally effective
June 1, 1984, the Plan having been last amended and restated effective
January 1, 1989; and
WHEREAS, the Employer desires to further amend the Plan to comply with
Section 401(a)(31) of the Internal Revenue Code of 1986, as amended; and
WHEREAS, under the terms of the Plan, the Employer has the right to amend
the Plan;
NOW, THEREFORE, the Employer hereby amends the Plan as follows:
I.
Article VII of the Plan is hereby amended by the addition of following
subsection at the end thereof:
7.12 ROLLOVER DISTRIBUTIONS
(a) For distributions made on or after January 1, 1993 and
notwithstanding any provision of the Plan to the contrary, that would otherwise
limit a "Distributee's" election hereunder, a Distributee may elect, at the time
and in the manner prescribed by the Plan Administrator, to have any portion of
an "Eligible Rollover Distribution" paid directly to an "Eligible Retirement
Plan" specified by the Distributee in a "Direct Rollover."
(b) For purposes of this Section, the terms set forth below
shall have the following meanings:
<PAGE>
(i) "Eligible Rollover Distribution" means any
distribution of all or any portion of the balance to the credit of the
Distributee, except that an Eligible Rollover Distribution does not include (A)
any distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or joint life expectancies)
of the Distributee and the Distributee's designated beneficiary, or for a
specified period of ten years or more, (B) any distribution to the extent such
distribution is required under Code Section 401(a)(9); and (C) the portion of
any distribution that is not includable in gross income (determined without
regard to the exclusion for net unrealized appreciation with respect to employer
securities).
(ii) "Eligible Retirement Plan" 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 Participant's surviving spouse, an
Eligible Retirement Plan is an individual retirement account or individual
retirement annuity.
(iii) "Distributee" means an Employee or former Employee.
In addition, the Employee's or former Employee's surviving spouse and the
Employee's or former Employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in Code Section
414(p), are Distributees with regard to the interest of the spouse or former
spouse.
(iv) "Direct Rollover" means a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.
II.
Except as hereinbefore amended, the Plan shall continue in full force and
effect in accordance with its terms.
-2-
<PAGE>
IN WITNESS WHEREOF, this FIRST AMENDMENT has been executed by the
Employer and Trustees to signify their acceptance of the terms hereof as of the
date first written above.
EMPLOYER:
ATTEST: ZEBRA TECHNOLOGIES CORPORATION
By:
--------------------------------------- -----------------------------
Its Secretary Its President
TRUSTEES:
-----------------------------
EDWARD KAPLAN
-----------------------------
GERHARD CLESS
-3-
<PAGE>
SECOND AMENDMENT
TO THE
ZEBRA TECHNOLOGIES CORPORATION
PROFIT SHARING AND SAVINGS PLAN
THIS AMENDMENT made and entered into the ____ day of
____________________, 1994, by and between ZEBRA TECHNOLOGIES CORPORATION (the
"Employer") and EDWARD KAPLAN and GERHARD CLESS, as Co-Trustees (the
"Trustees").
WHEREAS, the Employer heretofore adopted the ZEBRA TECHNOLOGIES
CORPORATION PROFIT SHARING AND SAVINGS PLAN (the "Plan") originally effective
June 1, 1984, the Plan having been last amended and restated effective
January 1, 1989; and
WHEREAS, the Employer desires to amend the Plan to comply with Section
401(a)(17) of the Internal Revenue Code of 1986, as amended; and
WHEREAS, under the terms of the Plan, the Employer has the right to amend
the Plan;
NOW, THEREFORE, the Employer hereby amends the Plan as follows:
I.
Section 2.12 of the Plan is hereby amended by the addition of the
following new subsection (c) at the end thereof:
"(c) In addition to other applicable limitations set forth in
the Plan, and notwithstanding any other provision of the Plan to the
contrary, for Plan Years beginning on or after January 1, 1994, the
annual Compensation of each Employee taken into account under the Plan
shall not exceed the OBRA '93 annual Compensation limit. The OBRA '93
annual Compensation limit is $150,000, as adjusted by the Commissioner
for increases in the cost of living in accordance with Code Section
401(a)(17)(B). The cost-of-living adjustment in effect for a calendar
year applies to any period, not exceeding twelve (12) months, over
which Compensation is determined ("determination period") beginning in
such calendar year. If a determination period consists of fewer than
twelve (12) months, the OBRA '93 annual Compensation limit will be
multiplied by a fraction, the
<PAGE>
numerator of which is the number of months in the determination period,
and the denominator of which is twelve (12).
For Plan Years beginning on or after January 1, 1994, any
reference in this Plan to the limitation under Code Section
401(a)(17) shall mean the OBRA '93 annual Compensation limit set
forth in this provision.
If Compensation for any prior determination period is taken
into account in determining an Employee's benefits accruing in the
current Plan Year, the Compensation for that prior determination
period is subject to the OBRA '93 annual Compensation limit in
effect for that prior determination period. For this purpose, for
determination periods beginning before the first day of the first
Plan Year beginning on or after January 1, 1994, the OBRA '93
annual Compensation limit is $150,000."
II.
Section 10.1 of the Plan is hereby amended by deleting the third sentence
therein and substituting the following in lieu thereof:
"All loans requested under this Article X, which are approved, shall be issued
to the Participant as soon as administratively feasible within the last month of
the calendar quarter in which the loan was requested if such loan was requested
during the first month of the calendar quarter, otherwise the loan shall be
issued to the Participant within the last month of the calendar quarter next
following the calendar quarter in which the loan was requested."
III.
Section 10.3 of the Plan is hereby amended by deleting the Section in its
entirety and substituting the following in lieu thereof:
"INTEREST. All such loans shall be considered investments of the Fund,
interest being charged thereon at the prime rate of interest as of the
first day of the last month of each calendar quarter as published by
the American National Bank and Trust Company of Chicago."
IV.
Except as hereinbefore amended, the Plan shall continue in full force and
effect in accordance with its terms.
-2-
IN WITNESS WHEREOF, this SECOND AMENDMENT has been executed by the
Employer and Trustees to signify their acceptance of the terms hereof as of the
date first written above.
EMPLOYER:
ATTEST: ZEBRA TECHNOLOGIES CORPORATION
By:------------------------- By:--------------------------
Its Secretary Its President
TRUSTEES:
------------------------------
EDWARD KAPLAN
------------------------------
GERHARD CLESS
-3-
<PAGE>
THIRD AMENDMENT
TO THE
ZEBRA TECHNOLOGIES CORPORATION
PROFIT SHARING AND SAVINGS PLAN
THIS AMENDMENT made and entered into the ____ day of
____________________, 1995, by and between ZEBRA TECHNOLOGIES CORPORATION
(the "Employer") and EDWARD KAPLAN and GERHARD CLESS, as Co-Trustees (the
"Trustees").
WHEREAS, the Employer heretofore adopted the ZEBRA TECHNOLOGIES
CORPORATION PROFIT SHARING AND SAVINGS PLAN (the "Plan") originally effective
June 1, 1984, the Plan having been last amended and restated effective
January 1, 1989; and
WHEREAS, the Employer desires to amend the Plan; and
WHEREAS, under the terms of the Plan, the Employer has the right to
amend the Plan;
NOW, THEREFORE, the Employer hereby amends the Plan as follows,
effective July 5, 1995:
I.
Section 2.43 of the Plan is hereby amended by adding the following at
the end of the last sentence therein:
"or an adopting Employer."
II.
Section 5.4(a) of the Plan is hereby amended by deleting the first
sentence of the second paragraph therein and substituting the following in
lieu thereof:
"The Participants entitled to share in the allocation of Employer
profit sharing contributions are those employed by Zebra Technologies
Corporation who
<PAGE>
are in the employ of the Employer on such Anniversary Date and who completed
a Year of Service during such Plan Year."
III.
Section 5.4(a) of the Plan is hereby amended by adding the following
sentence at the end of the second paragraph therein:
"For Plan Years beginning after December 31, 1994, to the extent
required under subsection 401(a)(4) of the Code or subsequent legislation,
Participants who are Employees of an adopting Employer shall be entitled to
share in the allocation of Employer profit sharing contributions.
IV.
Except as hereinbefore amended, the Plan shall continue in full force and
effect in accordance with its terms.
-2-
<PAGE>
IN WITNESS WHEREOF, this THIRD AMENDMENT has been executed by the
Employer and Trustees to signify their acceptance of the terms hereof as of
the date first written above.
EMPLOYER:
ATTEST: ZEBRA TECHNOLOGIES CORPORATION
By: By:
---------------------------------- ------------------------------------
Its Secretary Its President
TRUSTEES:
------------------------------------
EDWARD KAPLAN
------------------------------------
GERHARD CLESS
-3-
<PAGE>
FOURTH AMENDMENT
TO THE
ZEBRA TECHNOLOGIES CORPORATION
PROFIT SHARING AND SAVINGS PLAN
THIS AMENDMENT made and entered into the ____ day of
____________________, 1995, by and between ZEBRA TECHNOLOGIES CORPORATION
(the "Employer") and EDWARD KAPLAN and GERHARD CLESS, as Co-Trustees (the
"Trustees").
WHEREAS, the Employer heretofore adopted the ZEBRA TECHNOLOGIES
CORPORATION PROFIT SHARING AND SAVINGS PLAN (the "Plan") originally effective
June 1, 1984, the Plan having been last amended and restated effective
January 1, 1989; and
WHEREAS, the Employer desires to amend the Plan; and
WHEREAS, under the terms of the Plan, the Employer has the right to
amend the Plan;
NOW, THEREFORE, the Employer hereby amends the Plan as follows,
effective October 1, 1995:
I.
Section 3.1 of the Plan is hereby deleted and the following is
substituted in lieu thereof:
"3.1 ELIGIBILITY REQUIREMENTS. An Employee (not currently
participating in the Plan) shall participate in the Plan as of the first day
of the calendar month coincident with or next following the date he completes
one (1) Year of Service."
II.
Section 5.3 of the Plan is hereby deleted and the following is
substituted in lieu thereof:
"5.3 ADJUSTING THE VALUE OF THE TRUST. As of each Accounting
Date, the credit balances in the Accounts of all Participants shall be
increased or decreased, as the case may be, in the proportion that the net
credit to the Account of each such Participant bears to the total net credits
to the Accounts of all such Participants so that the aggregate of the net
credit balances equals the fair market value of the Trust on that date,
reduced by the amount of any Employer
<PAGE>
contributions, voluntary employee contributions and Participant rollover
contributions made to the Trust or any amounts transferred from or to a
Directed Investment Account since the preceding Accounting Date. All income
and expenses accrued shall be taken into consideration by the Trustee.
For purposes of this adjustment, the net credit to the Account
of each Participant shall be the net credit at the preceding Accounting Date
increased by one-half (1/2) of the Employer's contributions, voluntary
employee contributions and rollover contributions which will be credited to
the Participant's Accounts for the accounting period, but before the
allocation of earnings or losses for the accounting period, and reduced, but
not below zero, by the amount of any distribution from the Trust and by the
amount of any transfer from or to a Directed Investment Account (as defined
in Section 12.7(g) of the Plan) since the preceding Accounting Date.
Contributions which were made during the current accounting period but were
credited to the Participant's Accounts as of a preceding Accounting Date
shall be disregarded solely for purposes of determining a Participant's net
credit hereunder.
If Participants are permitted to direct the investment of their
Accounts, the adjustments provided by this Section shall be made separately
with respect to each pooled investment fund."
III.
Subsection (g) of Section 12.7 of the Plan is hereby deleted and the
following is substituted in lieu thereof:
"Directed Investment Account. The powers granted to the
Trustee shall be exercised in the sole fiduciary discretion of the Trustee.
However, if Participants are so empowered by the Plan Administrator, each
Participant may direct the Trustee to separate and keep separate all or a
portion of his entire Account Balance and further each Participant is
authorized and empowered, in his sole and absolute discretion, to give
directions to the Trustee pursuant to the procedure established by the Plan
Administrator and in such form as the Trustee may require concerning the
investment of the Participant's Directed Investment Account. The Trustee
shall comply as promptly as practicable with directions given by the
Participant hereunder. The Trustee may refuse to comply with any direction
from the Participant in the event the Trustee, in its sole and absolute
discretion, deems such directions improper by virtue of applicable law. The
Trustee shall not be responsible or liable for any loss or expense which may
result from the Trustee's refusal or failure to comply with any directions
from the Participant. Any costs and expenses related to compliance with the
Participant's directions shall be borne by the Participant's Directed
Investment Account. The Trustee shall inform the Participant that investment
in any collectible shall be treated as a distribution from the Plan and,
therefore, is prohibited under the terms of the Plan. For purposes of this
Section, the term "collectible" means any work of art, rug, antique, metal,
gem, stamp, coin, alcoholic beverage,
-2-
<PAGE>
or any other tangible personal property which might be designated a
collectible under the Code or Treasury Regulations.
The Trustee shall exercise the above investment authority
solely in the interest of and for the exclusive benefit of Plan Participants
and their Beneficiaries, with the care, skill, prudence and diligence that a
prudent man acting in a like capacity and familiar with such matters would
use in exercising such authority."
IV.
The following new Section 14.6 is hereby added to the Plan:
"14.6 RIGHT TO DIRECT INVESTMENT OF ACCOUNT BALANCE. Each
Participant shall have the right to direct the Trustee with respect to the
investment or reinvestment of all or part of his Accounts subject to the
restrictions contained in Section 12.7(h) of the Plan and any other
restrictions deemed advisable for administrative reasons by the Plan
Administrator. Such request shall be in writing and addressed to the Plan
Administrator. The direction shall be effective thirty (30) days after
receipt by the Trustee, but may be effected earlier, if administratively
feasible. If the Plan Administrator does not consent to such direction, he
shall so indicate by specifying his reasons therefore in writing within
thirty (30) days of receipt. The Plan Administrator shall exercise such
discretion if it is determined that such investment would probably be
classified as a prohibited transaction under Code Section 4975, a collectible
as defined in Section 12.7(h) of the Plan or could otherwise jeopardize the
tax-qualified status of the Plan. The Plan shall maintain, from time to
time, a list of directed investments, which shall be open to inspection by
all Participants in order to afford all Participants a like opportunity to
similarly direct investment of their Account. Such list shall not disclose
the amounts of the directed investments or the names of the Participants who
have so directed.
If a Participant does direct the investment of his Accounts,
such Accounts shall be credited or charged with the earnings or losses and
increases or decreases in the fair market value attributable thereto; and to
this extent, shall not share in the general adjustment of Accounts as
provided in Section 5.3 of the Plan.
The Trustee and Plan Administrator shall be fully protected and
indemnified, and shall not be liable for any loss or decrease in value of a
Participant's Accounts resulting from investments attributable to his
direction.
V.
Except as hereinbefore amended, the Plan shall continue in full force
and effect in accordance with its terms.
-3-
<PAGE>
IN WITNESS WHEREOF, this FOURTH AMENDMENT has been executed by the
Employer and Trustees to signify their acceptance of the terms hereof as of
the date first written above.
EMPLOYER:
ATTEST: ZEBRA TECHNOLOGIES CORPORATION
By: By:
------------------------------------ ----------------------------------
Its Secretary Its President
TRUSTEES:
----------------------------------
EDWARD KAPLAN
----------------------------------
GERHARD CLESS
-4-
<PAGE>
FIFTH AMENDMENT
TO THE
ZEBRA TECHNOLOGIES CORPORATION
PROFIT SHARING AND SAVINGS PLAN
THIS AMENDMENT made and entered into the ____ day of
____________________, 1996, by and between ZEBRA TECHNOLOGIES CORPORATION (the
"Employer") and EDWARD KAPLAN and GERHARD CLESS, as Co-Trustees (the
"Trustees").
WHEREAS, the Employer heretofore adopted the ZEBRA TECHNOLOGIES
CORPORATION PROFIT SHARING AND SAVINGS PLAN (the "Plan") originally effective
June 1, 1984, the Plan having been last amended and restated effective
January 1, 1989; and
WHEREAS, the Plan has been amended from time to time; and
WHEREAS, the Employer now desires to further amend the Plan; and
WHEREAS, under the terms of the Plan, the Employer has the right to amend
the Plan;
NOW, THEREFORE, the Employer hereby amends the Plan as follows, effective
August 1, 1996:
I.
Effective August 1, 1996, Section 3.3 of the Plan is hereby amended by
deleting the second sentence of the first paragraph therein and substituting the
following in lieu thereof:
"The Agreement shall be in such form as the Plan Administrator shall
prescribe and shall specify a percentage of not less than one (1%)
percent or more than fifteen (15%) percent by which the Participant
agrees to have his Compensation reduced."
<PAGE>
II.
Except as hereinbefore amended, the Plan shall continue in full force and
effect in accordance with its terms.
IN WITNESS WHEREOF, this FIFTH AMENDMENT has been executed by the
Employer and Trustees to signify their acceptance of the terms hereof as of the
date first written above.
EMPLOYER:
ATTEST: ZEBRA TECHNOLOGIES CORPORATION
By: By:
------------------------------------ -----------------------------
Its Secretary Its President
TRUSTEES:
--------------------------------
EDWARD KAPLAN
--------------------------------
GERHARD CLESS
Page 2 of 2
<PAGE>
SIXTH AMENDMENT
TO THE
ZEBRA TECHNOLOGIES CORPORATION
PROFIT SHARING AND SAVINGS PLAN
THIS AMENDMENT made and entered into the 1st day of January, 1997, by and
between ZEBRA TECHNOLOGIES CORPORATION (the "Employer") and EDWARD KAPLAN and
GERHARD CLESS, as Co-Trustees (the "Trustees").
WHEREAS, the Employer heretofore adopted the ZEBRA TECHNOLOGIES CORPORATION
PROFIT SHARING AND SAVINGS PLAN (the "Plan") originally effective June 1, 1984,
the Plan having been last amended and restated effective January 1, 1989; and
WHEREAS, the Plan has been amended from time to time; and
WHEREAS, the Employer now desires to further amend the Plan; and
WHEREAS, under the terms of the Plan, the Employer has the right to amend
the Plan; and
WHEREAS, the Employer has delegated the power to amend the Plan to the
undersigned officers.
NOW, THEREFORE, the Employer hereby amends the Plan as follows, effective
January 1, 1997:
I.
Section 2.10 of the Plan is hereby amended by adding the following new
paragraph at the end thereof:
"Notwithstanding the preceding paragraph to the contrary, effective
January 1, 1997, a Break In Service for vesting purposes shall mean a
consecutive 12-month period beginning on the Severance From Service
Date and ending on the first
<PAGE>
anniversary of such date, provided that the Employee does not perform
an Hour of Service for the Employer during such period."
II.
Section 2.43 of the Plan is hereby amended by deleting the last sentence of
the first paragraph and by adding the following sentence in lieu thereof:
"For purposes of determining Forfeitures under Article V, the
computation period shall coincide with the Plan Year. Effective
January 1, 1997, a Year of Service for vesting purposes shall mean a
Period of Service of one (1) year."
III.
Article II of the Plan is hereby amended by adding the following additional
defined terms, relating solely to the determination of vesting under Article VI,
to the end of Article II as new Sections 2.44 through 2.46:
"2.44 PERIOD OF SERVICE. Effective January 1, 1997, the period
commencing on the Employee's Employment Commencement Date or
Re-employment Commencement Date, whichever is applicable, and ending
on the Employee's Severance From Service Date. For purposes of
determining vesting pursuant to Article VI, only whole Years of
Service (whether or not consecutive) shall be considered and any
Period of Service less than one (1) whole year shall be disregarded.
Further, for purposes of determining vesting, the service spanning
rules provide that if an Employee severs from service by reason of
quit, discharge or retirement and then perform an Hour of Service
within the 12-month period following such Employee's Severance From
Service Date, a Period of Severance shall not be considered to have
occurred. However, if an Employee is absent for any other reason and
then quits, is discharged or retires, the Employee must perform an
Hour of Service during the 12-month period following the first day of
absence in order to receive credit for vesting for such year."
"2.45 PERIOD OF SEVERANCE. Effective January 1, 1997, the
period commencing on the Employee's Severance From Date and ending on
the date that the Employee again performs and Hour of Service for the
Employer."
"2.46 SEVERANCE FROM SERVICE DATE. The earliest of:
(a) the date on which the Employee quits, retires, is
discharged, or dies;
-2-
<PAGE>
(b) the first anniversary of the first date of a period in which
the Employee remains absent from service (with or without
pay) with the Employer for any reason other than quit,
retirement, discharge or death."
IV.
Section 6.6 of the Plan is hereby amended by deleting the old schedule and
adding the following new schedule therein:
<TABLE>
<CAPTION>
Completed Years of Service Vested Percentage
-------------------------- -----------------
<S> <C>
1 20
2 40
3 60
4 80
5 or more 100
</TABLE>
V.
Article VI of the Plan is hereby amended by adding the following new
Section 6.11 as a part thereof:
"6.11 ELAPSED TIME METHOD. The elapsed time method of computing
vesting service hereunder shall be effective January 1, 1997. No
employee shall suffer any reduction in his total number of Years of
Service or his vested percentage as of January 1, 1997 by application
of the different method of computing Years of Service."
VI.
Except as hereinbefore amended, the Plan shall continue in full force and
effect in accordance with its terms.
-3-
<PAGE>
IN WITNESS WHEREOF, this SIXTH AMENDMENT has been executed by the Employer
and Trustees to signify their acceptance of the terms hereof as of the date
first written above.
EMPLOYER:
ATTEST: ZEBRA TECHNOLOGIES CORPORATION
By: By:
--------------------------- ---------------------------
Its Secretary Its President
By:
---------------------------
Chief Financial Officer
By:
---------------------------
Human Resource Officer
TRUSTEES:
------------------------------
EDWARD KAPLAN
------------------------------
GERHARD CLESS
-4-
<PAGE>
SEVENTH AMENDMENT
TO THE
ZEBRA TECHNOLOGIES CORPORATION
PROFIT SHARING AND SAVINGS PLAN
THIS AMENDMENT made and entered into the ____ day of ____________________,
1997, by and between ZEBRA TECHNOLOGIES CORPORATION (the "Employer") and EDWARD
KAPLAN and GERHARD CLESS, as Co-Trustees (the "Trustees").
WHEREAS, the Employer heretofore adopted the ZEBRA TECHNOLOGIES CORPORATION
PROFIT SHARING AND SAVINGS PLAN (the "Plan") originally effective June 1, 1984,
the Plan having been last amended and restated effective January 1, 1989; and
WHEREAS, the Plan has been amended from time to time; and
WHEREAS, the Employer now desires to further amend the Plan to clarify
certain provisions of the Plan; and
WHEREAS, under the terms of the Plan, the Employer has the right to amend
the Plan; and
WHEREAS, the Employer has delegated the power to amend the Plan to the
undersigned officers.
NOW, THEREFORE, the Employer hereby amends the Plan as follows, effective
January 1, 1997:
I.
Section 5.4(b) of the Plan is hereby amended by substituting the following
for the first sentence of the second paragraph therein:
<PAGE>
"A Participant's allocation of Employer contributions under subsection
4.1(b) shall be based on the amount contributed by the Participant each
payroll period. The Participants entitled to share in the allocation of
Employer contributions under subsection 4.1(d) are those in the employ of
the Employer on the Anniversary Date."
II.
Except as hereinbefore amended, the Plan shall continue in full force and
effect in accordance with its terms.
IN WITNESS WHEREOF, this SEVENTH AMENDMENT has been executed by the
Employer and Trustees to signify their acceptance of the terms hereof as of the
date first written above.
ATTEST: EMPLOYER:
By: By:
--------------------------------- ---------------------------------
Secretary Chief Executive Officer
By:
---------------------------------
Chief Financial Officer
By:
---------------------------------
Human Resource Officer
TRUSTEES:
---------------------------------
EDWARD KAPLAN
---------------------------------
GERHARD CLESS
-2-
<PAGE>
EIGHTH AMENDMENT
TO THE
ZEBRA TECHNOLOGIES CORPORATION
PROFIT SHARING AND SAVINGS PLAN
THIS AMENDMENT made and entered into the ____ day of
____________________, 1997, by and between ZEBRA TECHNOLOGIES CORPORATION (the
"Employer") and EDWARD KAPLAN and GERHARD CLESS, as Co-Trustees (the
"Trustees").
WHEREAS, the Employer heretofore adopted the ZEBRA TECHNOLOGIES
CORPORATION PROFIT SHARING AND SAVINGS PLAN (the "Plan") originally effective
June 1, 1984, the Plan having been last amended and restated effective
January 1, 1989; and
WHEREAS, the Plan has been amended from time to time; and
WHEREAS, the Employer now desires to further amend the Plan; and
WHEREAS, under the terms of the Plan, the Employer has the right to amend
the Plan; and
WHEREAS, the Employer has delegated the ability to amend the Plan to the
undersigned officers.
NOW, THEREFORE, it is resolved that the Plan is hereby amended as
follows, effective as of September 1, 1997:
I.
Section 3.1 of the Plan is hereby amended by adding the following new
paragraph at the end as a part thereof:
"Notwithstanding the preceding paragraph to the contrary,
effective September 1, 1997, an Employee of the Employer who would
be eligible for the Plan, but for failing to meet the age and
service requirements above, shall be permitted to enter
<PAGE>
into a Savings Agreement as described in Section 3.3 of the Plan.
Such Savings Agreements which are submitted to the Plan Administrator
prior to the twentieth day of a calendar month shall be effective
as of the first payroll period commencing after the twentieth day
of that calendar month. In no event shall an Employee described
in this paragraph be entitled to receive a contribution pursuant
to sections 4.1(a), 4.1(b) or 4.1(d) of the Plan until the entry
date on or after such age and service requirements are met."
II.
Section 3.3 of the Plan is hereby amended by deleting the first sentence
of the first paragraph and by adding the following sentences in lieu thereof:
"Each Employee shall be given the opportunity to enter into a
written savings agreement with the Employer."
III.
Sub-Section 3.3(b) of the Plan is hereby amended by deleting the first
sentence therein and by adding the following in lieu thereof:
"A Savings Agreement may be amended, or an initial agreement may
be entered into in the event that the Participant did not execute
such an Agreement at the time he/she commenced participation, by
submission of the Savings Agreement to the Plan Administrator.
Savings Agreements which are so submitted prior to the twentieth
day of a calendar month will be effective as of the first payroll
period commencing after the twentieth day of that calendar month."
IV.
Except as hereinbefore amended, the Plan shall continue in full force and
effect in accordance with its terms.
-2-
<PAGE>
IN WITNESS WHEREOF, this EIGHTH AMENDMENT has been executed by the
Employer and Trustees to signify their acceptance of the terms hereof as of
the date first written above.
EMPLOYER:
ATTEST: ZEBRA TECHNOLOGIES CORPORATION
By: By:
---------------------------------- ----------------------------
Secretary Chief Executive Officer
By:
----------------------------
Chief Financial Officer
By:
----------------------------
Human Resources Officer
TRUSTEES:
--------------------------------
EDWARD KAPLAN
--------------------------------
GERHARD CLESS
-3-
<PAGE>
NINTH AMENDMENT
TO THE
ZEBRA TECHNOLOGIES CORPORATION
PROFIT SHARING AND SAVINGS PLAN
THIS AMENDMENT made and entered into the ____ day of
____________________, 1997, by and between ZEBRA TECHNOLOGIES CORPORATION (the
"Employer") and EDWARD KAPLAN and GERHARD CLESS, as Co-Trustees (the
"Trustees").
WHEREAS, the Employer heretofore adopted the ZEBRA TECHNOLOGIES
CORPORATION PROFIT SHARING AND SAVINGS PLAN (the "Plan") originally effective
June 1, 1984, the Plan having been last amended and restated effective
January 1, 1989; and
WHEREAS, the Plan has been amended from time to time; and
WHEREAS, the Employer now desires to further amend the Plan to clarify
certain provisions of the Plan; and
WHEREAS, under the terms of the Plan, the Employer has the right to amend
the Plan; and
WHEREAS, the Employer has delegated the power to amend the Plan to the
undersigned officers.
NOW, THEREFORE, the Employer hereby amends the Plan as follows, effective
January 1, 1998:
I.
Section 7.5(b) of the Plan is hereby amended by substituting the
following for "Three Thousand Five Hundred Dollars ($3,500)" each place it
appears therein:
<PAGE>
"Five Thousand ($5,000) Dollars, (or such other as may be
specified in Section 411(a)(11) of the Code)".
II.
Except as hereinbefore amended, the Plan shall continue in full force and
effect in accordance with its terms.
IN WITNESS WHEREOF, this NINTH AMENDMENT has been executed by the
Employer and Trustees to signify their acceptance of the terms hereof as of the
date first written above.
ATTEST: EMPLOYER:
By: By:
--------------------------------- ----------------------------
Secretary Chief Executive Officer
By:
----------------------------
Chief Financial Officer
By: ----------------------------
Human Resource Officer
TRUSTEES:
--------------------------------
EDWARD KAPLAN
--------------------------------
GERHARD CLESS
-2-
<PAGE>
Exhibit 15
ACKNOWLEDGMENT OF INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS REGARDING INDEPENDENT AUDITORS'
REVIEW REPORT
Zebra Technologies Corporation
333 Corporate Woods Parkway
Vernon Hills, Illinois 60061-3109
Ladies and Gentlemen:
With respect to the registration statement on Form S-8, we acknowledge our
awareness of the incorporation by reference therein of our report dated
April 21, 1998 related to our review of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such report is not
considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the
meaning of Sections 7 and 11 of the Act.
Very truly yours,
/s/ KPMG Peat Marwick LLP
- -------------------------
KPMG Peat Marwick LLP
Chicago, Illinois
July 22, 1998
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Zebra Technologies Corporation:
We consent to incorporation by reference in this registration statement on
Form S-8 of Zebra Technologies Corporation of our reports dated February 27,
1998, relating to the consolidated balance sheets of Zebra Technologies
Corporation and Subsidiaries as of December 31, 1997 and 1996, and the
related consolidated statements of earnings, shareholders' equity and cash
flows for each of the years in the three-year period ended December 31, 1997,
and the related financial statement schedule, which reports appear in the
December 31, 1997 annual report on Form 10-K of Zebra Technologies
Corporation.
/s/ KPMG Peat Marwick LLP
- -------------------------
KPMG Peat Marwick LLP
Chicago, Illinois
July 22, 1998
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Zebra Technologies Corporation:
We consent to incorporation by reference in this registration statement on
Form S-8 of Zebra Technologies Corporation of our report dated June 23, 1998,
relating to the statements of net assets available for benefits of the Zebra
Technologies Corporation Profit Sharing and Savings Plan as of December 31,
1996 and 1997, and the related statements of changes in net assets available
for benefits for the years then ended, which report appears in the December
31, 1997 report on Form 11-K of the Zebra Technologies Corporation Profit
Sharing and Savings Plan.
/s/ KPMG Peat Marwick LLP
- -------------------------
KPMG Peat Marwick LLP
Chicago, Illinois
July 22, 1998
