<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) April 3, 1996
-------------
FUQUA ENTERPRISES, INC.
-----------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 1-5091 13-1988043
- ------------------------------- ------------------------ -----------------------------------
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer Identification No.)
incorporation)
</TABLE>
One Atlantic Center, Suite 5000
1201 W. Peachtree Street, N.W., Atlanta, Georgia 30309
------------------------------------------------------
(Address of principal executive offices)
Registrant's telephone number, including area code: 404-815-2000
------------
<PAGE> 2
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On April 3, 1996, Fuqua Enterprises, Inc. ("Fuqua") through its
wholly-owned subsidiaries, Lumex Medical Products, Inc. and MUL Acquisition
Corp. II, consummated the acquisition (the "Acquisition") of the medical
products operations of Lumex, Inc. (the "Lumex Division") for approximately
$40.7 million in cash, subject to final adjustment as provided in the asset
sale agreement. The purchase price was determined based upon an evaluation of
the business of the Lumex Division and the results of negotiations conducted by
management under the direction and supervision of the Board of Directors.
Fuqua financed the acquisition with $7.7 million of its own cash and $33.0
million of borrowings under Fuqua's revolving credit facility provided by
SunTrust Bank, Atlanta, as agent, Wachovia Bank of Georgia, N.A. and Fleet Bank
of Maine.
The Lumex Division, whose 1995 net sales approximated $63.0 million,
develops and markets a wide range of health care products including specialty
seating, bathroom safety, mobility products, health care beds and therapeutic
support systems.
The Lumex Division is headquartered in Bay Shore, Long Island, New York
and has manufacturing facilities in Johnstown, New York and Lancaster,
Pennsylvania. Fuqua is currently evaluating the feasibility of consolidating
operations and administration. Otherwise, Fuqua, intends to use the property,
plant and equipment and other physical property purchased in the Acquisition
for the same purposes following the consummation of the Acquisition.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Business Acquired.
Fuqua has determined that it is impracticable to provide the required
financial statements of the Lumex Division prepared in accordance with
Regulation S-X with this Report. Fuqua will file the required financial
statements by amendment to this Report as soon as practicable but not later
than 60 days after this Current Report on Form 8-K must be filed.
(b) Pro Forma Financial Information.
Fuqua has determined that it is impracticable to provide the required
pro forma financial information with this Report. Fuqua will file such pro
forma financial information by amendment to this Report as soon as practicable
but in no event later than 60 days after this Current Report on Form 8-K must
be filed.
(c) Exhibits
<TABLE>
<CAPTION>
Exhibits Incorporated Herein by Reference
----------------------------------------------------------------
Designation Document with Which Exhibit Designation of Such
of Exhibit in Description of Was Previously Filed with Exhibit in That
This Form 8-K Exhibits Commission Document
- ------------- --------------------------------------------- --------------------------------- ----------------------
<S> <C> <C> <C>
2 Asset Sale Agreement By and Between Lumex, Annual Report on Form 10-K for Exhibit 2(d)
Inc., MUL Acquisition Corp. I, MUL Acquisition the year ended December 31,
Corp. II, and Fuqua dated March 13, 1996 (Fuqua 1995
agrees to furnish a copy of any omitted schedule
to the Commission upon request)
10(a) Fuqua Enterprises, Inc. Savings and Retirement
Plan and Trust effective April 3, 1996 (a tax-
qualified 401(k) plan) with SunTrust Bank, Atlanta,
serving as Trustee
10(b) Fuqua Enterprises, Inc. Savings and Retirement
Plan and Trust for Union Employees effective
April 3, 1996 (a tax-qualified 401(k) plan) with
SunTrust Bank, Atlanta, serving as Trustee
</TABLE>
2
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FUQUA ENTERPRISES, INC.
(Registrant)
/s/ Brady W. Mullinax, Jr.
---------------------------------------
Brady W. Mullinax, Jr., Vice President-
Finance, Treasurer and Chief Financial
Officer (Principal Financial and
Accounting Officer and Executive
Officer duly authorized to sign on
behalf of the Registrant)
Date: April 17, 1996
3
<PAGE> 1
EXHIBIT 10(a)
FUQUA ENTERPRISES, INC.
SAVINGS AND RETIREMENT PLAN AND TRUST
(Effective As Of April 3, 1996)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
ARTICLE 1 INTRODUCTION ............................................ 1
1.01 In General ............................................... 1
1.02 Purpose .................................................. 1
ARTICLE 2 DEFINITIONS ............................................. 2
Account ........................................................ 2
Adjustment ..................................................... 2
Affiliate ...................................................... 2
Authorized Leave of Absence .................................... 2
Beneficiary .................................................... 2
Board .......................................................... 3
Break in Service ............................................... 3
Code ........................................................... 3
Committee ...................................................... 3
Company ........................................................ 3
Compensation ................................................... 3
Distribution ................................................... 4
Earnings ....................................................... 4
Effective Date ................................................. 4
Eligible Employee .............................................. 4
Employee ....................................................... 4
Employer ....................................................... 4
Employer Contribution .......................................... 5
Employer Contribution Account .................................. 5
Employer Matching Contributions ................................ 5
Employer Retirement Contribution ............................... 5
Entry Date ..................................................... 5
ERISA .......................................................... 5
Executive Committee ............................................ 5
Family Member .................................................. 5
Fiduciary ...................................................... 5
Forfeiture ..................................................... 5
Former Participant ............................................. 5
Highly Compensated Employee .................................... 5
Hour of Service ................................................ 5
Investment Fund ................................................ 6
Normal Retirement Age .......................................... 6
Normal Retirement Date ......................................... 6
One-Year Break in Service ...................................... 6
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C>
Participant .................................................... 7
Permanent Disability ........................................... 7
Plan ........................................................... 7
Plan Administrator or Administrator ............................ 7
Plan Year ...................................................... 7
Pre-Tax Contribution ........................................... 7
Pre-Tax Contribution Account ................................... 7
Qualified ...................................................... 7
Qualified Nonelective Contribution Account ..................... 7
Qualified Nonelective Contribution ............................. 7
Retirement ..................................................... 7
Rollover Account ............................................... 7
Rollover Contribution .......................................... 8
Spouse ......................................................... 8
Termination of Employment ...................................... 8
Trust or Trust Agreement ....................................... 8
Trust Fund or Fund ............................................. 8
Trustee ........................................................ 8
Valuation Date ................................................. 8
Year of Eligibility Service .................................... 8
Year of Vesting Service ........................................ 8
Defined Terms .................................................. 8
ARTICLE 3 PARTICIPATION ........................................... 10
3.01 Participation ............................................ 10
3.02 Year of Eligibility Service .............................. 10
3.03 Participation and Rehire ................................. 10
3.04 Not Contract for Employment .............................. 11
3.05 Acquisitions; Predecessor Employers ...................... 11
ARTICLE 4 PRE-TAX CONTRIBUTIONS; ROLLOVERS ........................ 12
4.01 Pre-Tax Contributions .................................... 12
4.02 Elections Regarding Pre-Tax Contributions ................ 12
4.03 Change in Employee Contribution Percentage
or Suspension of Contributions ......................... 12
4.04 Deadline for Contributions and Allocation
of Pre-Tax Contributions ............................... 13
4.05 Rollover Contribution .................................... 13
4.06 No After-Tax Employee Contributions ...................... 14
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C>
ARTICLE 5 EMPLOYER CONTRIBUTIONS .................................. 15
5.01 Employer Matching Contribution ......................... 15
5.02 Employer Retirement Contributions ...................... 15
5.03 Qualified Nonelective Contributions .................... 15
5.04 Form and Timing of Contributions ....................... 16
5.05 Forfeitures ............................................ 16
ARTICLE 6 ACCOUNTS AND ALLOCATIONS ................................ 17
6.01 Participant Accounts ................................... 17
6.02 Valuation .............................................. 18
6.03 Investment Funds and Elections ......................... 18
6.04 Errors ................................................. 19
6.05 Valuation for Purposes of Distributions ................ 19
ARTICLE 7 VESTING AND BENEFITS ..................................... 20
7.01 Normal Retirement ...................................... 20
7.02 Permanent Disability ................................... 20
7.03 Death .................................................. 20
7.04 Other Termination of Employment ........................ 20
7.05 Year of Vesting Service ................................ 21
7.06 Forfeitures ............................................ 21
ARTICLE 8 DISTRIBUTIONS ........................................... 23
8.01 Methods of Distributions ............................... 23
8.02 Commencement of Distribution ........................... 23
8.03 Special Distribution Rules ............................. 24
8.04 Application for Benefits ............................... 24
8.05 Direct Rollovers ....................................... 24
ARTICLE 9 IN-SERVICE WITHDRAWALS; LOANS ........................... 26
9.01 Hardship Withdrawal of Account ......................... 26
9.02 Other In-Service Distributions ......................... 27
9.03 Loans .................................................. 27
9.04 Valuation for Purposes of Loans and Withdrawals ........ 30
ARTICLE 10 ADMINISTRATION OF THE PLAN ............................. 31
10.01 Named Fiduciaries ...................................... 31
10.02 Board of Directors ..................................... 31
10.03 Executive Committee .................................... 31
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C>
10.04 Trustee ............................................... 31
10.05 Committee ............................................. 31
10.06 Standard of Fiduciary Duty ............................ 33
10.07 Claims Procedure ...................................... 34
10.08 Indemnification of Committee .......................... 35
ARTICLE 11 AMENDMENT AND TERMINATION .............................. 36
11.01 Right to Amend ........................................ 36
11.02 Termination and Discontinuance of Contributions ....... 36
11.03 IRS Approval of Termination ........................... 36
ARTICLE 12 HIGHLY COMPENSATED EMPLOYEES ........................... 37
12.01 In General ............................................ 37
12.02 Highly Compensated Employees .......................... 37
12.03 Former Highly Compensated Employee .................... 37
12.04 Family Aggregation Rules .............................. 37
12.05 Definitions ........................................... 38
12.06 Other Methods Permissible ............................. 40
ARTICLE 13 MAXIMUM BENEFITS ....................................... 41
13.01 General Rule .......................................... 41
13.02 Combined Plan Limitation .............................. 42
13.03 Definitions ........................................... 42
ARTICLE 14 TOP HEAVY RULES ........................................ 45
14.01 General ............................................... 45
14.02 Definitions ........................................... 45
14.03 Minimum Benefit ....................................... 46
14.04 Combined Plan Limitation for Top Heavy Years .......... 47
ARTICLE 15 SPECIAL DISCRIMINATION RULES ........................... 48
15.01 Definitions ........................................... 48
15.02 Limit on Pre-Tax Contributions ........................ 51
15.03 Average Actual Deferral Percentage .................... 53
15.04 Special Rules For Determining Average Actual Deferral
Percentage........................................... 54
15.05 Distribution of Excess ADP Deferrals .................. 55
15.06 Average Actual Contribution Percentage ................ 56
15.07 Special Rules For Determining Average Actual
Contribution Percentages ............................ 57
</TABLE>
-iv-
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C>
15.08 Distribution of Employer Matching Contributions ........ 57
15.09 Combined ACP and ADP Test .............................. 58
15.10 Order of Applying Certain Sections of Article .......... 60
ARTICLE 16 TRUST FUND AND TRUSTEE ................................ 61
16.01 General Nature of Trustee's Responsibilities ........... 61
16.02 Investment Powers ...................................... 61
16.03 Valuation .............................................. 63
16.04 Other Powers ........................................... 63
16.05 Prohibited Transaction ................................. 65
16.06 Administration of the Plan, Payments of
Benefits, Reliance on Committee ...................... 65
16.07 Directing the Trustee .................................. 65
16.08 Records and Reports .................................... 66
16.09 Notification to Trustee ................................ 67
16.10 Expenses ............................................... 67
16.11 Trustee's Tenure and Succession ........................ 68
16.12 Successor Trustee ...................................... 69
16.13 Bond and Security ...................................... 69
16.14 Commingling ............................................ 69
ARTICLE 17 MISCELLANEOUS ......................................... 70
17.01 Headings ............................................... 70
17.02 Action by Employer ..................................... 70
17.03 Spendthrift Clause ..................................... 70
17.04 Discrimination ......................................... 70
17.05 Release ................................................ 70
17.06 Compliance with Applicable Laws ........................ 70
17.07 Merger ................................................. 70
17.08 Governing Law .......................................... 71
17.09 Legally Incompetent .................................... 71
17.10 Location of Participant or Beneficiary Unknown ......... 71
17.11 Distributions Upon Special Occurrences ................. 71
</TABLE>
-v-
<PAGE> 7
FUQUA ENTERPRISES, INC.
SAVINGS AND RETIREMENT PLAN AND TRUST
(Effective as of April 3, 1996)
ARTICLE 1
INTRODUCTION
1.01 In General. The Board of Directors of Fuqua Enterprises, Inc. hereby
establishes the Fuqua Enterprises, Inc. Savings and Retirement Plan
effective as of April 3, 1996. The Plan is intended to comply with the
qualification requirements of Section 401(a) of the Internal Revenue Code
of 1986, as amended (the "Code"), and the Employee Retirement Income
Security Act of 1974, as amended ("ERISA").
1.02 Purpose. The purpose of the Plan and the Trust Agreement is to provide
the benefits of a qualified retirement plan for the exclusive benefit of
the Participants and their Beneficiaries. This Plan shall be
administered and interpreted in accordance with such purpose.
<PAGE> 8
ARTICLE 2
DEFINITIONS
Certain terms of this Plan have defined meanings which are set forth in this
Article 2 and which shall govern unless the context in which they are used
clearly indicates that some other meaning is intended.
Account shall mean the account established and maintained by the Committee for
each Participant or Beneficiary to which shall be allocated each Participant's
interest in the Fund. Each Account shall be comprised of the sub-accounts
described in Section 6.01.
Adjustment shall mean, for any Valuation Date, the aggregate earnings, realized
or unrealized appreciation, losses, expenses, and realized or unrealized
depreciation of the Fund since the immediately preceding Valuation Date. For
purposes of such Adjustment, all assets of the Trust Fund shall be valued at
their fair market value as of each Valuation Date. The determination of the
valuation of assets and the adjustment shall be made by the Trustee and shall
be final and binding.
Affiliate shall mean any corporation which is a member of a controlled group of
corporations (as defined in Code Section 414(b)) of which the Employer is a
member; any trade or business which is under common control (as defined in Code
Section 414(c)) with the Employer; any organization which is a member of an
affiliated service group (as defined in Code Section 414(m)) which includes the
Employer; and any other entity required to be aggregated with the Employer
pursuant to regulations under Code Section 414(o).
Authorized Leave of Absence shall mean any temporary layoff or any absence
authorized by the Employer under the Employer's standard personnel practices
provided that all persons under similar circumstances must be treated alike in
the granting of such Authorized Leaves of Absence and provided further that the
Participant returns within the period of authorized absence. An absence due to
service in the Armed Forces of the United States shall be considered an
Authorized Leave of Absence to the extent required by federal law.
Beneficiary
(a) Unmarried Participants. For unmarried Participants, any individual(s),
trust(s), estate(s), partnership(s), corporation(s) or other entity or
entities designated by the Participant in accordance with procedures
established by the Committee to receive any distribution to which the
Participant is entitled under the Plan in the event of the Participant's
death. The Committee may require certification of the Participant's
marital status in any form it deems appropriate prior to accepting or
honoring any Beneficiary designation. Any Beneficiary designation shall
be void if the Participant revokes the designation or marries. Any
Beneficiary designation shall be void to the extent it conflicts with the
terms of a "qualified domestic relations order," as defined in Code
Section 414(p).
- 2 -
<PAGE> 9
If an unmarried Participant fails to designate a Beneficiary or if the
designated Beneficiary fails to survive the Participant and the
Participant has not designated a contingent Beneficiary, the Beneficiary
shall be the Participant's estate.
(b) Married Participant. A married Participant's Beneficiary shall be his
Spouse at the time of his death unless the Participant has designated a
non-spouse Beneficiary (or Beneficiaries) with the written consent of his
Spouse given in the presence of a Notary Public on a form provided by the
Committee, or unless the terms of a qualified domestic relations order
require payment to a non-spouse Beneficiary. A married Participant's
designation of a non-spouse Beneficiary in accordance with the preceding
sentence shall remain valid until revoked by the Participant or until the
Participant marries a Spouse who has not consented to a designation in
accordance with the preceding sentence.
For the purposes of this Section, revocation of prior Beneficiary
designations will occur when a Participant (i) files a subsequent valid
designation with the Committee; or (ii) files a signed statement with the
Committee evidencing his intent to revoke any prior designations. Any
revocation of a Beneficiary designation shall be void to the extent it
conflicts with the terms of a "qualified domestic relations order," as
defined in Code Section 414(p).
Board shall mean the Board of Directors of the Company.
Break in Service shall mean five consecutive One-Year Breaks in Service.
Code shall mean the Internal Revenue Code of 1986, as now in effect or as
amended from time to time. A reference to a specific provision of the Code
shall include such provision and any applicable regulation pertaining thereto.
Committee shall mean the Committee appointed by the Executive Committee under
Article 10 to administer the Plan.
Company shall mean Fuqua Enterprises, Inc. and its successors and assigns which
adopt this Plan.
Compensation
(a) Except as provided below, Compensation shall mean the gross annual
earnings reported on a Participant's Form W-2 (Box 1 - Wages, Tips and
Compensation, or its comparable location as provided on Form W-2 in future
years) as required by Code Section Section 6041(d) and 6051(a)(3),
including overtime, bonuses and commissions). In addition, Compensation
shall include Pre-Tax Contributions under this Plan and salary reduction
pre-tax contributions to a Section 125 Plan maintained by the Employer.
Compensation shall be determined by ignoring any income exclusions under
Code Section 3401(a) based on the nature or location of employment. In
addition, Compensation shall be determined by ignoring reimbursements or
other expense allowances, fringe benefits (cash and non-cash), moving
- 3 -
<PAGE> 10
expenses, deferred compensation (and for this purpose benefits under a
stock option plan is "deferred compensation") and welfare benefits (and
for this purpose, worker's compensation payments of any type and
severance pay of any type shall be considered "welfare benefits," but
sick pay, short term disability and vacation pay are not considered
"welfare benefits").
(b) The annual Compensation of each employee taken into account under the
Plan shall not exceed $150,000, as adjusted by the Commissioner for
increases in the cost of living in accordance with Section 401(a)(17)(B)
of the Internal Revenue Code. The cost-of-living adjustment in effect for
a calendar year applies to any period, not exceeding 12 months, over which
compensation is determined (determination period) beginning in such
calendar year.
(c) See also Section 12.04 for additional rules regarding aggregation of
Compensation for certain Family Members.
(d) Compensation shall not include amounts earned prior to the date an
Eligible Employee becomes a Participant in the Plan.
Distribution shall mean payment by the Trustee to or for the benefit of a
Participant or Former Participant, Spouse, Beneficiary or other person entitled
to benefits as provided in the Plan.
Earnings shall have that meaning as defined in Section 4.01.
Effective Date shall mean April 3, 1996.
Eligible Employee shall, except for those Employees identified in the following
sentence, mean all Employees employed by the Employer. The following Employees
shall not be considered Eligible Employees: (i) any employee included in a
collective bargaining unit for which a labor organization is recognized as
collective bargaining agent unless such employee has been designated by the
Employer as an "Eligible Employee" for the purposes of this Plan, (ii) any
Employee who is a nonresident alien and who does not receive earned income from
the Employer which constitutes income from sources within the United States, or
(iii) any "leased employee," within the meaning of Code Section 414(n)(2),
with respect to the Employer.
Employee shall mean any person employed by or on Authorized Leave of Absence
from the Employer and any person who is a "leased employee" within the meaning
of Code Section 414(n)(2) with respect to the Employer. However, if such
"leased employees" constitute less than 20 percent of the Employer's combined
non-highly compensated work force, within the meaning of Code Section
414(n)(1)(C)(ii), the term "Employee" shall not include "leased employees"
covered by a plan described in Code Section 414(n)(5).
Employer shall mean the Company or any Affiliate whose Eligible Employees
benefit under the Plan.
- 4 -
<PAGE> 11
Employer Contribution shall mean Matching Contributions, Retirement
Contributions and/or Qualified Nonelective Contributions.
Employer Contribution Account shall mean the portion of a Participant's Account
attributable to Employer Contributions and the total of the Adjustments
attributable to such Employer Contributions.
Employer Matching Contributions. See Section 5.01.
Employer Retirement Contribution See Section 5.02.
Entry Date. January 1, April 1, July 1 and October 1 of each Plan Year.
ERISA shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time. Reference to a specific provision of ERISA shall
include such provision and any applicable regulation pertaining thereto.
Executive Committee shall mean the Executive Committee of the Board.
Family Member. See Section 12.04.
Fiduciary shall mean any party named as a Fiduciary in Article 10 of the Plan.
Any party shall be considered a Fiduciary of the Plan only to the extent of the
powers and duties specifically allocated to such party under the Plan.
Forfeiture. See Section 7.06.
Former Participant. See Section 3.03.
Highly Compensated Employee. See Article 12.
Hour of Service shall mean:
(a) Each hour for which an Employee is paid, or entitled to payment, for
performance of duties for an Employer.
(b) Each hour for which an Employee is paid, or entitled to payment, by an
Employer, on account of a period of time during which no duties are
performed (irrespective of whether the employment relationship is
terminated) due to vacation, holiday, illness, incapacity, layoff, jury
duty, military duty, or leave of absence; provided that in no event, shall
an Employee receive credit for more than 501 Hours of Service for any
single continuous period of non-working time.
(c) Each hour for which an Employee is absent from work by reason of: (i)
the pregnancy of the Employee, (ii) birth of a child of the Employee,
(iii) placement of a child with the
- 5 -
<PAGE> 12
Employee in connection with the adoption of the child by the Employee,
or (iv) caring for a child referred to in paragraphs (i) through (iii)
immediately following birth or placement. Hours credited under this
paragraph shall be credited at the rate of 8 hours per day, but shall not,
in the aggregate, exceed the number of hours required to prevent the
Employee from incurring a One-Year Break in Service (a maximum of 501
hours) during the first computation period in which a One-Year Break in
Service would otherwise occur, provided, however, that this rule shall
apply only during the Plan Year in which the absence from work begins and
the immediately following Plan Year.
(d) Each hour for which back pay, irrespective of mitigation of damages, is
either awarded or agreed to by an Employer. These hours shall be credited
to the Employee for the computation period or period to which the award or
agreement pertains, rather than the computation period in which the award,
agreement, or payment is made.
(e) In lieu of the foregoing, an Employee who is not compensated on an hourly
basis (such as salary, commission or piecework employees) shall be
credited with 45 Hours of Service for each week in which such Employee
would be credited with Hours of Service in hourly pay. However, this
method of computing Hours of Service may not be used for any Employee
whose Hours of Service is required to be counted and recorded by any
Federal law, such as the Fair Labor Standards Act. Any such method must
yield an equivalency of at least 1,000 hours per computation period.
(f) The following rules shall apply in determining whether an Employee
completes an "Hour of Service:"
1. The same hours shall not be credited under paragraphs (a),
(b) or (c) above, as the case may be, and paragraph (d) above, nor
shall the same hours credited under paragraphs (a) through (d) above
be credited under paragraph (e) above.
2. The rules relating to determining hours of service for reasons
other than the performance of duties and for crediting hours of
service to particular periods of employment shall be those rules
stated in Department of Labor regulations Title 29, Chapter XXV,
subchapter C, part 2530, Sections 200b2(b) and 200b2(c),
respectively.
Investment Fund shall mean the separate funds under the Trust Fund which are
distinguished by their investment objectives.
Normal Retirement Age shall mean the date a Participant attains age 65.
Normal Retirement Date shall mean the last day of the month coinciding with or
next following the date the Participant attains Normal Retirement Age.
One-Year Break in Service shall mean any Plan Year during which the
Participant earns 500 or fewer Hours of Service. A One-Year Break in Service
shall not occur during any Plan Year in
- 6 -
<PAGE> 13
which the Employee is on an Authorized Leave of Absence, but only if the
Employee returns to active Employment at the termination of such Authorized
Leave of Absence.
Participant shall mean an Employee who becomes eligible to participate in the
Plan as provided in Article 3.
Permanent Disability shall mean a physical or mental impairment which in the
opinion of the Plan Administrator is of such permanence and such degree that a
Participant is unable because of such impairment to perform any gainful
activity for which he is suited by virtue of his experience, training or
education. A determination of total and permanent disability by the Social
Security Administration of the United States shall be binding on the Plan
Administrator.
Plan shall mean the Fuqua Enterprises, Inc. Savings and Retirement Plan as set
forth in this document together with any subsequent amendments hereto.
Plan Administrator or Administrator, within the meaning of Section 3(16) of
ERISA, shall mean the Committee.
Plan Year shall mean the calendar year.
Pre-Tax Contribution shall mean contributions made to the Plan during the Plan
Year by the Employer, at the election of the Participant, in lieu of cash
compensation and that are made pursuant to a salary reduction agreement. Such
contributions are nonforfeitable when made.
Pre-Tax Contribution Account shall mean the portion of a Participant's Account
attributable to Pre-Tax Contributions, and the total of the Adjustments which
have been credited to or deducted from a Participant's Account with respect to
such Pre-Tax Contributions.
Qualified, as used in "qualified plan" or "qualified trust", shall mean a plan
and trust which are entitled to the tax benefits provided respectively under
Code Section Section 401 and 501, and related provisions.
Qualified Nonelective Contribution Account shall mean the portion of a
Participant's Account attributable to Qualified Nonelective Contributions, and
the total of the Adjustments which have been credited to or deducted from a
Participant's Account with respect to Qualified Nonelective Contributions.
Qualified Nonelective Contribution. See Section 5.03.
Retirement shall mean a Participant's Termination of Employment on or after the
Participant's Normal Retirement Age.
Rollover Account shall mean the portion of a Participant's Account attributable
to Rollover Contributions or the total of the Adjustments attributable to such
Rollover Contributions.
- 7 -
<PAGE> 14
Rollover Contribution. See Section 4.05.
Spouse shall mean the person who was married to the Participant (in a civil or
religious ceremony recognized under the laws of the state where the marriage
was contracted) immediately prior to the date on which payments to the
Participant from the Plan begin and for a period of at least one year prior to
the Participant's death. If the Participant dies prior to the commencement of
benefits, Spouse shall mean a person who is married to a Participant (as
defined in the immediately preceding sentence) on the date of the Participant's
death. A Participant shall not be considered married to another person as a
result of any common law marriage whether or not such common law marriage is
recognized by applicable state law.
Termination of Employment shall mean that an Employee has ceased to be employed
by the Employer for any of the following reasons:
(a) Voluntary resignation from the service of the Employer,
(b) Discharge from the service of the Employer by the Employer,
(c) Retirement,
(d) Death, or
(e) Permanent Disability.
Notwithstanding the foregoing, an Employee who ceases to be actively employed
by reason of an Authorized Leave of Absence shall not be considered as having a
Termination of Employment.
Trust or Trust Agreement. See Article 16.
Trust Fund or Fund shall mean the cash and other properties held and
administered by the Trustee in accordance with the Plan and the Trust Agreement
in accordance with Article 16.
Trustee shall mean the persons, corporation, association or a combination of
them acting as Trustee under the Trust Agreement.
Valuation Date shall mean each business day of the Plan Year for which plan
assets are traded on a national exchange or such other day as selected by the
Committee.
Year of Eligibility Service. See Section 3.02.
Year of Vesting Service. See Section 7.05.
Defined Terms. A defined term will normally govern the definitions of
derivatives therefrom even though such derivatives are not specifically defined
and even if they are or are not initially capitalized. The masculine gender,
where appearing in the Plan, shall be deemed to include the
- 8 -
<PAGE> 15
feminine gender, unless the context clearly indicates the contrary.
Singular and plural nouns and pronouns shall be interchangeable as the factual
context may allow or require. The words "hereof", "herein", "hereunder" and
other similar compounds of the word "here" shall mean and refer to the entire
Plan and not to any particular provision or Section.
- 9 -
<PAGE> 16
ARTICLE 3
PARTICIPATION
3.01 Participation.
(a) General. An Eligible Employee shall become a Participant in
the Plan on the Entry Date coinciding with or next following the
date on which the Eligible Employee has both (i) attained age 21 and
(ii) completes one Year of Eligibility Service.
(b) Enrollment in Plan. An Eligible Employee who becomes
eligible to participate in this Plan will be asked to follow certain
procedures to enroll in the Plan, and pursuant to which he will
designate Beneficiaries. However, an Eligible Employee's
participation in the Plan shall not be contingent upon completion of
such enrollment process.
3.02 Year of Eligibility Service. A Year of Eligibility Service is determined
under the 1,000 Hours of Service method. Accordingly, an Employee shall
receive one Year of Eligibility Service upon completing a 12 consecutive
month period of Employment during which the Employee earns at least 1,000
Hours of Service. The initial twelve month period shall be the 12
consecutive month period commencing on the Employee's date of hire or
rehire. If the Employee fails to complete 1,000 Hours of Service during
this 12-month period, the Employee shall receive a Year of Eligibility
Service upon completing at least 1,000 Hours of Service during a Plan
Year (commencing with the Plan Year during which the Employee's first
anniversary of his date of hire occurs).
3.03 Participation and Rehire.
(a) Status as a Participant. A Participant's participation in
the Plan shall continue until the Participant's Termination of
Employment. On or after his Termination of Employment, the Employee
shall be known as a "Former Participant" and his benefits shall
thereafter be governed by the provisions of Article 8. The
individual's status as a Former Participant shall cease as of the
date the individual ceases to have any balance in his Account. If a
Participant ceases to be an Eligible Employee but does not have a
Termination of Employment, then such person shall continue to be
known as a "Participant," but shall not be eligible to receive
Employer Contributions.
(b) Rehire of Person who was a Participant in this Plan. An
Eligible Employee who was a Participant in this Plan at the time of
his Termination of Employment and who is subsequently rehired by an
Employer, shall be eligible to participate in this Plan on the Entry
Date coinciding with or immediately following the later of (i) the
Employee's date of rehire or (ii) the date the Employee again
becomes an Eligible Employee.
- 10 -
<PAGE> 17
(c) Rehire of Person who Was Not a Participant in this Plan. If
a former Eligible Employee is no longer employed or is no longer an
Eligible Employee on the earliest Entry Date on or after which such
Employee would have satisfied the requirements described in Section
3.01(a) above, such Employee shall commence participation in the
Plan on the first Entry Date coincident with or immediately
following the date such Employee is rehired or again becomes an
Eligible Employee, as applicable, provided that such Employee has
not incurred a Break in Service. However, if such Employee has
incurred a Break in Service, then such Employee must again satisfy
the requirements of Section 3.01(a) in order to participate in the
Plan.
3.04 Not Contract for Employment. Participation in the Plan shall not give
any Employee the right to be retained in the Employer's employ, nor shall
any Employee, upon dismissal from or voluntary termination of his
employment, have any right or interest in the Fund, except as herein
provided.
3.05 Acquisitions; Predecessor Employers. If a group of persons becomes
employed by an Employer (or any of its subsidiaries or divisions) as a
result of an acquisition of another employer, the Committee shall
determine whether and to what extent employment with such prior employer
shall be treated as eligibility service for purposes of Section 3.01, the
applicable Entry Date (or special entry date) for such acquired
employees, and any other terms and conditions which apply to eligibility
to participate in this Plan. Such terms and conditions shall be set
forth in a schedule to this Plan by action of the Committee. In
addition, the Committee may provide for past service credit to other
Employees to the extent permitted by Treasury Regulations, as set forth
in Schedule A to this Plan. Except to the extent required by law,
employees of an acquired business which is not identified in a schedule
to this Plan shall be treated as having first accrued an Hour of Service
as of the date of the Employer's acquisition of such business.
- 11 -
<PAGE> 18
ARTICLE 4
PRE-TAX CONTRIBUTIONS; ROLLOVERS
4.01 Pre-Tax Contributions.
(a) Effective April 3, 1996, a Participant may (except during periods of
suspension as set forth in Section 4.03(b)) elect to make Pre-Tax
Contributions to the Plan by means of payroll deduction. A
Participant may contribute as a Pre-Tax Contribution any whole
percentage from 1% to 14% of his Earnings during any Plan Year. For
this purpose, "Earnings" means Compensation, as defined in paragraph
(a) of the definition set forth in Article 2, but disregarding
paragraphs (b) and (c) of such definition.
(b) The Committee may establish guidelines and rules in order to
effectuate the provisions of this Section.
4.02 Elections Regarding Pre-Tax Contributions.
(a) Procedure for Making Elections. Elections by a Participant to make
Pre-Tax Contributions to the Plan shall be made in writing on a form
prescribed by the Committee (or in any other manner approved by the
Committee) and by designating the percentage of Earnings that will
be contributed as a Pre-Tax Contribution during each pay period.
The election to make Pre-Tax Contributions shall be effective as
soon as is administratively feasible after such election is
communicated to the Committee.
(b) Treatment as 401(k) Contributions. It is expressly intended
that, to the extent allowable by law, Pre-Tax Contributions shall
not be included in the gross income of the Participant for income
tax purposes and shall be deemed contributions under a cash or
deferred arrangement pursuant to Code Section 401(k).
(c) Additional Limitations of Pre-Tax Contributions. Pre-Tax
Contributions shall be subject to the limitations described in
Section 15.02 (maximum dollar contribution limit), Section 15.03
(ADP non-discrimination test) and Article 13 (Code Section 415
limit).
4.03 Change in Employee Contribution Percentage or Suspension of Contributions.
(a) Change of Contribution Percentage. A Participant may increase or
decrease the percentage of his Earnings contributed as a Pre-Tax
Contribution at any time by delivery of written notice to the
Committee (or in any other manner approved by the Committee). In
order to be effective, the Participant must notify the
- 12 -
<PAGE> 19
Committee (or its designee) prior to the date that the increase or
decrease will become effective.
(b) Suspension of Contributions. A Participant may suspend his
Pre-Tax Contributions at any time by properly completing a form
prescribed by the Committee (or in any other manner approved by the
Committee). The suspension of Pre-Tax Contributions will be
effective as soon as is administratively feasible after the
Participant properly communicates his election to suspend Pre-Tax
Contributions. A Participant may resume making Pre-Tax
Contributions on the first day of any pay period which is after the
effective date of such suspension of contributions and only after
informing the Committee in writing (or its designee in any other
manner approved by the Committee) prior to the date on which the
Pre-Tax Contributions are to resume. A Participant's Pre-Tax
Contributions shall automatically be suspended beginning on the
first payroll period that commences after the Participant is not in
receipt of Earnings, the Participant's layoff or the Participant's
Authorized Leave of Absence without pay.
(c) Other Rules.
(1) In order to satisfy the provisions of Articles 13 and 15,
the Committee may from time to time either temporarily
suspend the Pre-Tax Contributions of Employees or reduce the
maximum permissible Pre-Tax Contribution that may be made to
the Plan by Employees.
(2) Any reduction, increase, or suspension of Pre-Tax
Contributions described in this Section 4.03 shall be made in
such manner as the Committee may prescribe from time to time
consistent with the provisions of this Article.
4.04 Deadline for Contribution and Allocation of Pre-Tax Contributions.
Pre-Tax Contributions shall be deducted by the Employer from the
Participant's Earnings and paid to the Trustee as promptly as possible
after the end of each regular pay period but in no event later than any
time period established under applicable law.
4.05 Rollover Contribution.
(a) Without regard to any limitation on contributions set forth
in this Article, an Eligible Employee shall be permitted, if the
Committee consents (based on non-discriminatory criteria), to
transfer to the Trustee during any Plan Year additional property
acceptable to the Trustee, provided such property:
(1) was received by the Eligible Employee from a Qualified Plan
maintained by a previous employer and qualifies as a rollover
contribution within the meaning of Code Section 402(a)(5) or
- 13 -
<PAGE> 20
(2) was received by the Eligible Employee from an individual
retirement account or individual retirement annuity and
qualifies as a rollover contribution within the meaning of
Code Section 408(d)(3)(A)(ii).
(b) Such property shall be held in the Employee's Rollover Account.
All such amounts so held shall at all times be fully vested and
nonforfeitable. Such amounts shall be distributed to the Eligible
Employee upon Termination of Employment in the manner provided in
Article 8.
(c) See Section 8.06 regarding the right of an Eligible Employee to
request a direct rollover of the Eligible Employee's Account in
lieu of a distribution of such Account.
4.06 No After-Tax Employee Contributions. Employees shall not be permitted to
make after-tax contributions to the Plan.
- 14 -
<PAGE> 21
ARTICLE 5
EMPLOYER CONTRIBUTIONS
5.01 Employer Matching Contribution. The Employer shall contribute and
allocate to the Employer Matching Contribution Account of each
Participant who during such Plan Year made a Pre-Tax Contribution. A
Participant's Employer Matching Contribution shall be equal to 50% of the
Participant's Pre-Tax Contributions for the Plan Year; provided, however,
only Pre-Tax Contributions of up to 4% of Compensation shall be matched.
5.02 Employer Retirement Contributions.
(a) Amount and Timing. The Employer shall make an Employer
Retirement Contribution on behalf of each Participant who is an
Eligible Employee during the Plan Year. The amount of any Employer
Retirement Contribution shall be determined annually by the Board.
However, if the Board fails to determine the amount of an Employer
Retirement Contribution for a given Plan Year, then such Employer
Retirement Contribution shall be an amount equal to 3% of each
Participant's Compensation for such Plan Year.
(b) Allocation of Employer Retirement Contribution. Employer
Retirement Contributions shall be allocated among the Employer
Contribution Accounts of all Participants who complete at least
1,000 Hours of Service during the Plan Year and who are employed on
the last regularly scheduled work day of the Plan Year. The
Employer Retirement Contribution, if any, shall be allocated in the
proportion that such Participant's Compensation bears to the total
such Compensation for all Participants for that Plan Year.
(c) Employment on Last Regularly Scheduled Work Day of Plan Year.
For purposes of allocating the Employer Retirement Contribution,
any Participant who either has a Termination of Employment on
account of Retirement, death, Permanent Disability, commencement of
an Authorized Leave of Absence or transfer to an Affiliate shall be
deemed to be employed on the last regularly scheduled work day of
the Plan Year in which such Termination of Employment occurred. In
addition, certain Participants who have a Termination of Employment
during the Plan Year may be treated as being employed on the last
day of the Plan Year for purposes of receiving an allocation of
Employer Contributions if such treatment is necessary to enable the
Plan to satisfy the requirements of Code Section 410(b). Any such
allocation must be done in a nondiscriminatory manner.
5.03 Qualified Nonelective Contributions. In the sole discretion of the
Executive Committee, an additional Employer Contribution may be made to
the Plan which shall be known as a "Qualified Nonelective Contribution."
Such contribution shall be made in order to satisfy the requirements of
Article 15 or any other purpose designated by the Committee, and
- 15 -
<PAGE> 22
shall be allocated to the Qualified Nonelective Contribution Accounts of
those Non-highly Compensated Employees selected by the Committee at the
time such Qualified Nonelective Contribution is made, or as soon
thereafter as possible.
5.04 Form and Timing of Contributions.
(a) Employer Contributions shall be made in cash. Employer
Contributions shall be delivered to the Trustee on or before the
date prescribed by the Code for filing the Employer's federal
income tax return, including authorized extensions. The Trustee
shall not be liable for the Employer's failure to deliver Employer
Contributions to the Trustee on or before such date.
(b) Except as provided in this Section 5.04, all Employer
Contributions shall be irrevocable, shall never inure to the
benefit of any Employer, shall be held for the exclusive purpose of
providing benefits to Participants and their Beneficiaries (and
contingently for defraying reasonable expenses of administering the
Plan), and shall be held and distributed by the Trustees only in
accordance with this Plan.
(c) Upon an Employer's request and to the extent permitted by
the Code and other applicable laws and regulations thereunder, a
contribution which was made by a mistake in fact, or conditioned
upon the initial qualification of the Plan under Code Section
401(a) or upon the deductibility of the contribution under Code
Section 404 shall be returned to the Employer within one year after
the payment of the contribution, the denial of the Plan's initial
qualification, or the disallowance of the deduction (to the extent
disallowed) whichever is applicable. All contributions to this
Plan are conditioned upon the initial qualification of this Plan
under Code Section 401(a) and upon the deductibility of the
contribution under Code Section 404.
5.05 Forfeitures.
(a) Forfeitures shall first be applied to restore amounts previously
forfeited pursuant to Section 7.06(b).
(b) If any Forfeitures remain after the application of Section
7.06(b), Forfeitures shall be applied to reduce Employer
Contributions under Sections 5.01 and 5.02.
(c) Section 7.06 describes the method to determine when a
Forfeiture of a Participant's Account occurs.
- 16 -
<PAGE> 23
ARTICLE 6
ACCOUNTS AND ALLOCATIONS
6.01 Participant Accounts.
(a) Individual Account Plan. This Plan is an "individual account
plan," as that term is used in ERISA. A separate Account shall be
maintained for each Participant, Former Participant or Beneficiary,
so long as he has an interest in the Trust Fund.
(b) Sub-Accounts. Each Account shall be divided (as appropriate
for accounting purposes) into the following sub-accounts:
(1) The Employer Retirement Contribution Account, which shall
reflect the Employer Retirement Contributions contributed to
this Plan and any Adjustments thereto.
(2) The Pre-Tax Contribution Account, which shall reflect Pre-Tax
Contributions contributed to this Plan and any Adjustments
thereto.
(3) The Employer Matching Contribution Account, which shall
reflect Employer Matching Contributions contributed to this
Plan and any Adjustments thereto.
(4) The Qualified Nonelective Contribution Account, which shall
reflect Qualified Nonelective Contributions contributed to
this Plan and any Adjustments thereto.
(5) The Rollover Account, which shall reflect the value of all
investments derived from the Participant's Rollover
Contributions under this Plan and any Adjustments thereto.
In addition, the Committee may divide such sub-accounts into such
sub-portions as the Committee deems to be necessary or advisable
under the circumstances or to establish other accounts or
sub-accounts as needed.
(c) Value of Account as of Valuation Date. As of each Valuation
Date, each Participant's Account shall equal:
(1) his total Account as determined on the immediately preceding
Valuation Date, plus
(2) his Pre-Tax Contributions added to his Account since the
immediately preceding Valuation Date, plus
- 17 -
<PAGE> 24
(3) his Employer Contributions added to his Account since the
immediately preceding Valuation Date, plus
(4) his Rollover Contributions since the immediately preceding
Valuation Date, minus
(5) his Distributions, if any, since the immediately preceding
Valuation Date, plus or minus
(6) his allocable share of Adjustments.
6.02 Valuation.
(a) The Adjustment for each Investment Fund shall be calculated as of
each Valuation Date. The Adjustment for a given Investment Fund
shall be allocated to each Account invested in such Investment
Fund in the proportion that each such Account bears to the total of
all such Accounts.
(b) The Committee may direct that expenses attributable to general plan
administration be charged to the Accounts of all Participants in
proportion to their Account balances, determined in accordance with
this Section 6.02.
6.03 Investment Funds and Elections.
(a) Election of Investment Funds. Each Participant shall direct,
following such procedures as may be specified by the Committee, to
have his Account allocated or reallocated among the Investment
Funds.
(b) Initial Investment Direction. A Participant's initial investment
election must allocate his entire Account in 1% increments among the
Investment Funds, as of the date of the directive, and all
subsequent contributions to each sub-account for so long as the
election remains in effect. An Employee who fails to make a proper
investment election by the deadline established by the Committee
for such purpose, shall be deemed to have elected to allocate his
Account in a money market fund or any other Investment Fund that,
in the Committee's determination, best provides for the least
volatility in the value of principal.
(c) Subsequent Elections. Investment elections will remain in effect
until changed by a new election. New elections may be made by a
Participant in 1% increments among the Investment Funds as of any
Valuation Date upon prior written notice to the Committee (or in
any other manner designated by the Committee) delivered by the
deadline established by the Committee for such purpose.
- 18 -
<PAGE> 25
(d) Investment Options. The Committee shall select such Investment
Funds as are deemed appropriate and shall notify affected
Participants of such Investment Funds. The Committee may modify,
eliminate or select new Investment Funds from time to time and shall
notify affected Participants of such changes and solicit new
investment elections, if appropriate.
6.04 Errors. Where an error or omission is discovered in any Participant's
Account, the Committee shall make appropriate corrective adjustments as
of the end of the Plan Year in which the error or omission is discovered.
If it is not practical to correct the error retroactively, then the
Committee shall take such action in its sole discretion as may be
necessary to make such corrective adjustments, provided that any such
actions shall treat similarly situated Participants alike and shall not
discriminate in favor of Highly Compensated Employees.
6.05 Valuation for Purposes of Distributions. For the purposes of Articles 7
and 8, each Participant's Account shall be valued as of the Valuation
Date immediately preceding Distribution of the Participant's Account.
- 19 -
<PAGE> 26
ARTICLE 7
VESTING AND BENEFITS
7.01 Normal Retirement. A Participant who remains employed with the Employer
until his Normal Retirement Age shall be 100% vested in his Account.
Upon such Participant's subsequent Termination of Employment, such
Account will be distributed in accordance with Article 8.
7.02 Permanent Disability. A Participant who has a Termination of Employment
on account of Disability shall become 100% vested in his Account as of
the date of such Permanent Disability and shall be entitled to a
Distribution of his Account in accordance with Article 8.
7.03 Death. A Participant who has a Termination of Employment on account of
death shall become 100% vested in his Account. The Participant's
Beneficiary shall receive a Distribution of such Account in accordance
with Article 8.
7.04 Other Termination of Employment.
(a) In General. Upon a Participant's Termination of Employment
for any reason other than Normal Retirement, Permanent Disability or
death, the Participant shall be entitled to the vested portion of
his Account, which shall be distributed in accordance with Article
8.
(b) Vesting Schedule. A Participant shall be 100% vested in his
Employer Contribution Account after completing five (5) Years of
Vesting Service. If a Participant has less than five (5) Years of
Vesting Service at the time he has a Termination of Employment, the
Participant shall forfeit all amounts held in his Employer
Contribution Account pursuant to Section 7.06.
(c) 100% Vesting in Pre-Tax Contribution and Rollover Account. A
Participant shall always be 100% vested in his Pre-Tax Contribution
Account and Rollover Account.
(d) Amended Vesting Schedule. If the Plan's vesting schedule is
amended or if the Plan is deemed amended by an automatic change to
or from a top-heavy vesting schedule, each Participant with at least
three (3) Years of Vesting Service with the Employer may elect,
within a reasonable period after the adoption of the amendment or
change, to have the nonforfeitable percentage computed under the
Plan without regard to such amendment or change.
The period during which the election may be made shall commence
with the date the amendment is adopted or deemed to be made and
shall end on the latest of:
- 20 -
<PAGE> 27
(A) 60 days after the amendment is adopted,
(B) 60 days after the amendment becomes effective, or
(C) 60 days after the Participant is issued written notice of
the amendment by the Employer or Plan Administrator.
However, no election is required to be provided to any Participant
whose vested percentage, as amended, cannot at any time be less
than the Participant's vested percentage under the prior vesting
schedule.
7.05 Year of Vesting Service.
(a) Vesting Credit. An Employee shall receive one Year of Vesting
Service for any Plan Year during which the Employee is credited with
1,000 or more Hours of Service. An Employee shall not receive a
Year of Vesting Service for any period of Employment during any Plan
Year if the Employee is credited with less than 1,000 Hours of
Service during such Plan Year.
(b) Forfeiture of Vesting Service. A Year of Vesting Service shall not
include any period of Employment which precedes a Break in Service
if as of the first day of the Break in Service, the Employee does
not have a vested interest in his Employer Contributions.
(c) Employment with Affiliates. Any period of employment with an
Affiliate shall be considered service with the Employer for purposes
of determining whether the Employee has a Year of Vesting Service.
(d) Authorized Leave of Absence. A Year of Vesting Service shall not
include any period of Authorized Leave of Absence or service in the
military except to the extent such service is required to be
credited under applicable federal law.
(e) Employment with Affiliate; Predecessor Businesses. Years of Vesting
Service shall not include any period of Employment with any
Affiliate prior to its becoming an Affiliate or any period of
Employment with a predecessor business prior to its acquisition by
Employer except to the extent provided in a schedule to this Plan.
In addition, the Committee may provide for past service credit to
other Employees to the extent permitted by Treasury Regulations, as
set forth in Schedule A.
7.06 Forfeitures.
(a) Distribution of Vested Account Prior to Break in Service. A
Participant who incurs a Termination of Employment and receives a
Distribution of his entire vested Account prior to incurring a Break
in Service, shall, upon such Distribution,
- 21 -
<PAGE> 28
forfeit the non-vested portion of his Account. A Participant who
is not vested in his Account shall be deemed to have received a
Distribution of his entire vested Account upon his Termination of
Employment, and the Participant's non-vested Account shall be
immediately forfeited.
(b) Repayment of Account; Restoration of Non-Vested Account.
Except as provided below, a Participant who is rehired by the
Employer shall have the right to repay to the Plan the portion of
the Participant's Account which was previously distributed to him.
In the event the Participant repays the entire Distribution he
received from the Plan, the Employer shall restore the non-vested
portion of the Participant's Account. A Participant's Account shall
first be restored, to the extent possible, out of Forfeitures under
the Plan in the Plan Year in which the Participant repays his prior
Distribution. To the extent such Forfeitures are insufficient to
restore the Participant's Account, restoration shall be made from
Employer Contributions. A Participant who was deemed to have
received a Distribution of his vested Account (see subsection (b)
above) shall be deemed to have repaid such vested Account if such
Participant is rehired before incurring a Break in Service.
(c) Restrictions of Repayment Account. Notwithstanding anything
to the contrary in this Plan, a Participant shall not have the right
to repay to the Plan the portion of his Account which was previously
distributed to him after any of the following events: (i) the
Participant incurs a Break in Service before returning to
Employment, (ii) the Participant fails to repay the prior
Distribution within five years after the Participant is re-employed
by the Employer, or (iii) the Participant received a Distribution of
his entire Account balance at the time of such earlier Distribution.
- 22 -
<PAGE> 29
ARTICLE 8
DISTRIBUTIONS
8.01 Methods of Distributions. A Participant's Account shall be payable as a
lump sum or in installment payments payable in monthly installments of
substantially equal amounts over a period certain not to exceed ten
years. Hardship distributions and loans under Article 9 shall be made in
the form of a lump sum payment only.
8.02 Commencement of Distribution.
(a) A Participant's Account shall not be distributed without the
consent of the Participant. However, under the following
circumstances, the Committee shall direct the Trustee to distribute
the Participant's vested Account regardless of whether the
Participant or Spouse consents to such Distribution:
(i) Small Accounts. If a Participant incurs a Termination of
Employment and the Participant's vested Account Balance did
not exceed $3,500 at the time of any Distribution, benefits
shall be distributed in one lump sum no later than the sixty
(60) days after the end of the Plan Year in which occurred
the Participant's Termination of Employment. However, if
the Employer rehires the Participant prior to the date of
Distribution, no Distribution shall be made under this
Section 8.02(a)(i).
(ii) Attainment of Normal Retirement Age. A Participant's Account
shall commence to be distributed within 60 days after the end
of the Plan Year coincident with or immediately following the
Participant's attainment of his Normal Retirement Age, or if
later, the Participant's Termination of Employment.
(iii) Death of Participant. If the Participant dies, the
Participant's Account balance shall be made available for
distribution to the Participant's Beneficiary within 90 days
after such death, unless the particular facts and
circumstances require a longer waiting period.
(iv) Attainment of Age 70-1/2. If the Participant attains age 70-
1/2 and distribution is required under Section 8.03, the
Participant's Account shall commence to be distributed as
provided in such Section.
(b) In the event of a Participant's request for a hardship
distribution, distribution shall be made no later than 90 days
after the request is approved by the Committee.
(c) The Committee may, in accordance with policies uniformly applied,
require written application as a precondition to the payment of
benefits hereunder.
- 23 -
<PAGE> 30
(d) The Committee shall issue directions to the Trustee concerning the
recipient and distribution date of benefits which are to be paid
from the Trust pursuant to the Plan.
8.03 Special Distribution Rules.
(a) Scope of Section. To the extent that the distribution rules
described in this Section provide a limitation upon distribution
rules stated elsewhere in this Plan, the distribution rules stated
in this Section shall take precedence over such conflicting rules.
However, under no circumstances shall the rules stated in this
Section be deemed to provide distribution rights to Participants or
their Beneficiaries which are more expansive or greater than the
distribution rights stated elsewhere in this Plan.
(b) Distributions Must Commence Before Age 70-1/2. In no event may the
Distribution of a Participant's Account commence later than April 1
following the calendar year in which the Participant attains age
70-1/2 (the "required beginning date").
(c) Distributions Pursuant to Qualified Domestic Relations Orders.
Notwithstanding anything to the contrary in this Plan, a "qualified
domestic relations order," as defined in Code Section 414(p), may
provide that any amount to be distributed to an alternate payee may
be distributed immediately even though the Participant is not yet
entitled to a distribution under the Plan. The intent of this
Section is to provide for the distribution of benefits to an
alternate payee as permitted by Treasury Regulation Section
1.401(a)-13(g)(3).
(d) Method of Distribution. The entire Account of each Participant shall
be distributed, beginning not later than the required beginning
date, in the manner elected by the Participant. However, if the
Participant fails to elect a distribution option by the required
beginning date, the Participant's vested Account will be distributed
in a lump sum.
8.04 Application for Benefits. The Committee may require a Participant or
Beneficiary to complete and file with the Committee certain forms as a
condition precedent to the payment of benefits. The Committee may rely
upon all such information given to it, including the Participant's
current mailing address. It is the responsibility of all persons
interested in distributions from the Trust Fund to keep the Committee
informed of their current mailing addresses.
8.05 Direct Rollovers.
(a) In General. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a Distributee's election under
this Section, a Distributee may elect, at the time and in the manner
prescribed by the Plan Administrator, to have any
- 24 -
<PAGE> 31
portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the Distributee in a direct
rollover.
(b) Definitions.
Eligible Rollover Distribution. An Eligible Rollover Distribution
is any distribution of all or any portion of the balance to the
credit of the Distributee, except that an Eligible Rollover
Distribution does not include (i) 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; (ii) any distribution to the
extent such distribution is required under Code Section 401(a)(9);
and (iii) the portion of any distribution that is not includible
in gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities.
Eligible Retirement Plan. An Eligible Retirement Plan is an
individual retirement account described in Code Section 408(a), an
individual retirement annuity described in Code Section 408(b), an
annuity plan described in Code Section 403(a), or a qualified trust
described in Code Section 401(a), that accepts the Distributee's
Eligible Rollover Distribution. However, in the case of an Eligible
Rollover Distribution to the surviving spouse, an Eligible
Retirement Plan is an individual retirement account or individual
retirement annuity.
Distributee. A Distributee includes an Employee or former
Employee. In addition, the Employee's or former Employee's
surviving Spouse and the Employee's or former Employee's Spouse or
former Spouse who is an 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.
Direct Rollover. A Direct Rollover is a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.
(c) Waiver. If a distribution is one to which Code Section Section
401(a)(11) and 417 do not apply, such distribution may commence less
than 30 days after the notice required under Section 1.411(a)-11(c)
of the Income Tax Regulations is given, provided that:
(1) the Plan Administrator clearly informs the Participant that
the Participant has a right to a period of at least 30 days
after receiving the notice to consider the decision of whether
or not to elect a distribution (and, if applicable, a
particular distribution option), and
(2) the Participant, after receiving this notice, affirmatively
elects a distribution.
- 25 -
<PAGE> 32
ARTICLE 9
IN-SERVICE WITHDRAWALS; LOANS
9.01 Hardship Withdrawal of Account.
(a) In General. Any Participant may request the Committee to
distribute to him part or all of his Pre-Tax Contributions Account.
Notwithstanding the above, income or gain that is allocated to the
Participant's Pre-Tax Contribution Account may not be distributed
in a hardship withdrawal.
(b) Definition of Hardship. Hardship shall mean an immediate and heavy
financial need experienced by reason of:
(1) expenses of any accident to or sickness of such Participant,
his Spouse or his dependents or expenses necessary to provide
medical care for such Participant, his Spouse or his
dependents;
(2) purchase of a primary residence for such Participant;
(3) payment of tuition and related educational fees
(including room and board) for the next twelve months of
post-secondary education for the Participant, his Spouse,
children or dependents; or
(4) the need to prevent the eviction of the Participant from his
principal residence or foreclosure on the Participant's
principal residence.
(c) Maximum Hardship Distribution. A hardship distribution cannot
exceed the amount required to meet the immediate financial need
created by the hardship (after taking into account applicable
federal, state, or local income taxes and penalties) and not
reasonably available from other resources of the Participant. A
Participant may not request a hardship withdrawal unless the
Participant has a loan outstanding under this Plan.
In order to ensure compliance with the requirement that the
hardship cannot be met by other resources, the Committee shall
require the Participant to certify on a form provided by the
Committee for such purpose that the financial need cannot be
relieved (1) through reimbursement or payment by insurance; (2) by
reasonable liquidation of the Participant's assets; (3) by ceasing
Pre-Tax Contributions under the Plan; (4) by other in-service
distributions (including loans) under the Plan and under any other
plan maintained by the Employer; or (5) by borrowing from
commercial lenders on reasonable commercial terms.
- 26 -
<PAGE> 33
(d) Procedure to Request Hardship. The request to receive a
hardship distribution shall be made in writing to the Committee
explaining the nature of the financial hardship and stating the
amount needed to meet the immediate need. Under no circumstances
shall the Committee permit a Participant to repay to the Plan the
amount of any hardship withdrawal by a Participant under this
Section.
9.02 Other In-Service Distributions.
(a) Attainment of Age 59 1/2. If a Participant attains age 59 1/2
while employed by an Employer, the Participant shall be entitled to
receive a distribution of his vested Account balance determined as
if the Participant had experienced a Termination of Employment on
the date of the withdrawal.
(b) Withdrawal of Rollover Contributions. Upon written request to the
Plan Administrator, any Participant who is an Employee may withdraw
amounts held in his Rollover Account.
(c) Repayment of Withdrawals. In no event shall a Participant be
permitted to repay the amount of his in-service withdrawal. The
Committee may establish uniform and nondiscriminatory administrative
procedures concerning requests for in-service withdrawals.
9.03 Loans.
(a) Authority to Establish Loan Program. The Committee and its
designated agent is authorized and directed to administer the loan
program.
(b) Eligibility for Loans. Loans shall be available to all
Participants who (i) have met the eligibility requirements of
Section 3.01 of this Plan and (ii) are actively employed by the
Employer. Loans shall be made available to such Participants on
a reasonably equivalent basis. To request a loan, a Participant
must make application on such forms and follow such procedures as
the Committee may prescribe.
(c) Loan Amount. A loan to any Participant (determined immediately
after the origination of the loan) shall not exceed the lesser of:
(1) Fifty percent (50%) of the Participant's vested Account
balance as of the Valuation Date with respect to which the
loan is processed; or
(2) $50,000 reduced by the excess (if any) of (A) the highest
outstanding balance of loans from the plan during the one-
year period ending on the day before the date on which such
loan was made, over (B) the outstanding loan balance of loans
from the Plan on the date on which the loan was made.
- 27 -
<PAGE> 34
In addition, the minimum amount of any loan shall be Five Hundred
Dollars ($500.00).
(d) Assignment of Account. Each loan shall be supported by the
Participant's promissory note for the amount of the loan, including
interest, payable to the order of the Trust. In addition, each
loan shall be supported by an assignment of 50% of the
Participant's right, title and interest in and to his Account. The
Participant must obtain the consent of his or her Spouse, if any,
within the 90-day period before the time his or her account balance
is used as security for the loan. A new consent is required if the
account balance is used for any increase in the amount of the
security.
(e) Interest. Interest shall be charged on any such loan at a rate
established from time to time by the Trustee provided such rate is
equivalent to a rate that would be charged by a commercial lender
for a similar loan.
(f) Term of Loan. The maximum repayment term of any loan is five (5)
years, unless the loan is used to acquire any dwelling unit which
within a reasonable time after the loan is made is to be used by
the principal residence of the Participant. The maximum repayment
term for a loan used to acquire a dwelling unit shall be a
reasonable time, as determined by the Committee, that may exceed
five (5) years but shall not exceed thirty (30) years. The term of
the loan may not exceed beyond the Participant's Termination of
Employment. The Committee may, in its discretion, establish a
shorter repayment term than the maximum repayment term otherwise
permitted under the Plan.
(f) Level Amortization. Each loan shall provide for level
amortization with payments to be made at such regular intervals as
the Committee determines in its discretion, but not less frequently
than once every three months over the term of the loan.
(g) Form of Loan Payments. Loan payments shall be made by payroll
deduction; provided, however, that Participants on an unpaid
Authorized Leave of Absence may make loan payments by personal
check.
(h) Directed Investment. A Participant who requests a loan shall be
deemed to have directed the Committee to reduce his Investment
Funds by the amount of the loan, and until such loan is repaid, such
loan shall be considered a directed investment of the Participant's
Account hereunder. The Plan monies which are used to fund the
Participant loan shall be withdrawn from the Participant's Account
on a pro rata basis according to the value of the Investment Funds
in which such Account was invested, determined in the manner set
forth in Section 9.04. Principal and interest payments on the loan
will be allocated to the
- 28 -
<PAGE> 35
Participant's Investment Funds according to the Participant's
investment election at the time of the repayment.
(i) Distribution of Loan. Loan proceeds will be distributed as
soon as practicable after the loan is approved and after the
Participant completes all documentation necessary to make such
loan.
(j) Default.
(1) If a default occurs, all unpaid amounts
under the loan (including principal, accrued interest and
unpaid expenses) shall become due and payable on the 5th
business day following the default, without further
notice.
(2) A loan shall be in default if one of the following events
occurs:
(a) Failure by the borrower to pay the full amount of
any payment on the date when it is due (or if such
date is not a regular business day, on the next
following business day);
(b) Any other note of the borrower to the Plan becomes
or is deemed to be due and payable prior to its
maturity;
(c) The borrower, if an employee of the Company at the
time the loan is made, terminates his or her
employment with the Company for any reason,
including death;
(d) Any property that the borrower pledges as security
for the loan is subject to attachment or
garnishment or is otherwise disposed of, unless the
borrower provides adequate substitute security
approved by the Plan Administrator;
(e) The borrower (i) makes an assignment for the
benefit of creditors, (ii) files a petition in
bankruptcy, (iii) is adjudicated insolvent or
bankrupt, or (iv) becomes the subject of any wage
earner plan under the Federal Bankruptcy Code as
now or hereafter in effect, or under any applicable
state insolvency law;
(f) If there is started against the borrower any
bankruptcy, insolvency, or other similar proceeding
which has not been dismissed by the 60th day after
the date on which the proceeding was started, or
the borrower consents to or approves of any such
proceeding or the appointment of any receiver for
the borrower or any substantial part of the
- 29 -
<PAGE> 36
borrower's property, or the appointment of any
such receivers not discharged within 60 days.
(3) If a default occurs and the borrower fails to pay the
outstanding balance (including principal, unpaid
accrued interest, and any related expenses) under the
loan within 5 business days after the occurrence of the
default, the Plan Administrator shall take such action as
it deems necessary or desirable to preserve the Plan's
assets. These actions may include demand for payment
served upon any guarantor of the borrower's obligation,
commencement of legal proceedings against the borrower or
any guarantor, foreclosure and disposition of so much of
the assets pledged as security for the loan as is
necessary to retire the entire amount thereof and to pay
all reasonable costs associated with collection of the
unpaid loan balance, or a combination of legal action and
disposition of assets pledged as security for loan
repayment. If permitted under ERISA and related
Department of Labor regulations, the Plan shall not be
required to commence any of the foregoing actions upon
the occurrence of a default. Instead, the Plan
Administrator may wait to foreclose until such time as a
distribution of the borrower's vested account balance
occurs or, if earlier, when enforcement action is
necessary to comply with the terms of ERISA or to prevent
the Plan's disqualification under the terms of the Code.
(k) Other Requirements. Loans shall generally be made available for
the reasons set forth in Section 9.01(b). However, the Committee
may establish such additional guidelines and rules as it deems
necessary. Such guidelines and rules shall be set forth in the
loan application and the terms specified in such loan application
are hereby incorporated by reference in the Plan. The Committee
may amend or modify the loan application as it deems necessary to
carry out the provisions of this Section 9.03.
9.04 Valuation for Purposes of Loans and Withdrawals. The Participant's
Account for purposes of determining the amount of a loan or withdrawal
shall be determined as of the Valuation Date preceding the date the
Committee approves the loan or withdrawal.
- 30 -
<PAGE> 37
ARTICLE 10
ADMINISTRATION OF THE PLAN
10.01 Named Fiduciaries. The following parties are named as Fiduciaries of
the Plan and shall have the authority to control and manage the operation
and administration of the Plan:
(a) The Company;
(b) The Board;
(c) The Trustee;
(d) The Committee; and
(e) The Executive Committee.
The Fiduciaries named above shall have only the powers and duties
expressly allocated to them in the Plan and in the Trust Agreement and
shall have no other powers and duties in respect of the Plan; provided,
however, that if a power or responsibility is not expressly allocated to
a specific named fiduciary, the power or responsibility shall be that of
the Company. No Fiduciary shall have any liability for, or
responsibility to inquire into, the acts and omissions of any other
Fiduciary in the exercise of powers or the discharge of responsibilities
assigned to such other Fiduciary under this Plan or the Trust Agreement.
10.02 Board of Directors. The Board shall have the power to appoint and
remove the Trustee and the members of the Executive Committee. The Board
shall have no other responsibilities with respect to the Plan.
10.03 Executive Committee. The Executive Committee shall have the power to
amend or terminate the Plan. The Executive Committee may, by resolution,
grant power to the Committee to amend all or any portion of this Plan
without Executive Committee's approval. The Executive Committee shall
have no other responsibilities with respect to the Plan.
10.04 Trustee. The Trustee shall exercise all of the powers and duties
assigned to the Trustee as set forth in the Trust Agreement. The Trustee
shall have no other responsibilities with respect to the Plan.
10.05 Committee.
(a) A Committee of one or more individuals shall be appointed by and
serve at the pleasure of the Executive Committee to administer the
Plan. Any Participant, officer, or director of the Employer shall
be eligible to be appointed a member of
- 31 -
<PAGE> 38
the Committee and all members shall serve as such without
compensation. Upon termination of his employment with the
Employer, or upon ceasing to be an officer or director, if not an
employee, he shall cease to be a member of the Committee. The
Executive Committee shall have the right to remove any member of
the Committee at any time, with or without cause. A member may
resign at any time by written notice to the Committee and the
Executive Committee. If a vacancy in the Committee should occur, a
successor shall be appointed by the Executive Committee. The
Committee shall by written notice keep the Trustee notified of
current membership of the Committee, its officers and agents. The
Committee shall furnish the Trustee a certified signature card for
each member of the Committee and for all purposes hereunder the
Trustee shall be conclusively entitled to rely upon such certified
signatures.
(b) The Executive Committee shall appoint a Chairman and a Secretary
from among the members of the Committee. All resolutions,
determinations and other actions shall be by a majority vote of all
members of the Committee. The Committee may appoint such agents,
who need not be members of the Committee, as it deems necessary for
the effective performance of its duties, and may delegate to such
agents such powers and duties, whether ministerial or
discretionary, as the Committee deems expedient or appropriate.
The compensation of such agents shall be fixed by the Committee;
provided, however, that in no event shall compensation be paid if
such payment violates the provisions of ERISA Section 408 and is
not exempted from such prohibitions by ERISA Section 408.
(c) The Committee shall have complete control of the administration of
the Plan with all powers necessary to enable it to properly
carry out the provisions of the Plan. The Committee also may
delegate certain aspects of Plan administration to a designated
agent as the Committee deems necessary or desirable. In addition
to all implied powers and responsibilities necessary to carry out
the objectives of the Plan and to comply with the requirements of
ERISA, the Committee shall have the following specific powers and
responsibilities:
(1) to construe the Plan and Trust Agreement and to determine all
questions arising in the administration, interpretation and
operation of the Plan;
(2) to amend any or all of the provisions of the Plan pursuant to
the procedures provided hereunder (but only if the Executive
Committee has delegated such authority to the Committee);
(3) to decide all questions relating to the eligibility of
Employees to participate in the benefits of the Plan and
Trust Agreement;
(4) to determine the benefits of the Plan to which any
Participant, Beneficiary or other person may be entitled;
- 32 -
<PAGE> 39
(5) to keep records of all acts and determinations of the
Committee, and to keep all such records, books of accounts,
data and other documents as may be necessary for the proper
administration of the Plan;
(6) to prepare and distribute to all Plan Participants and
Beneficiaries information concerning the Plan and their
rights under the Plan, including, but not limited to, all
information which is required to be distributed by ERISA, the
regulations thereunder, or by any other applicable law;
(7) to file with the Secretary of Labor such reports and
additional documents as may be required by ERISA and
regulations issued thereunder, including, but not limited
to, summary plan description, modifications and changes,
annual reports, terminal reports and supplementary reports;
(8) to file with the Secretary of the Treasury all reports and
information required to be filed by the Code, ERISA and
regulations issued under each; and
(9) to do all things necessary to operate and administer the Plan
in accordance with the Plan's provisions and in compliance
with applicable provisions of federal law.
(d) To enable the Committee to perform its functions, the Employer
shall supply full and timely information of all matters relating to
the compensation and length of service of all Participants, their
Retirement, death or other cause of termination of employment, and
such other pertinent facts as the Committee may require. The
Committee shall advise the Trustee of such facts and issue to the
Trustee such instructions as may be required by the Trustee in the
administration of the Plan. The Committee and the Employer shall
be entitled to rely upon all certificates and reports made by a
Certified Public Accountant selected or approved by the Employer.
The Committee, the Employer and its officers shall be fully
protected in respect of any action suffered by them in good faith
in reliance upon the advice or opinion of any accountant or
attorney, and all action so taken or suffered shall be conclusive
upon each of them and upon all other persons interested in the
Plan.
10.06 Standard of Fiduciary Duty. Any Fiduciary, or any person designated by
a Fiduciary to carry out fiduciary responsibilities with respect to the
Plan, shall discharge his duties solely in the interests of the
Participants and Beneficiaries for the exclusive purpose of providing
them with benefits and defraying the reasonable expenses of administering
the Plan. Any Fiduciary shall discharge his duties with the care,
skill, prudence and diligence under the circumstances then prevailing
that a prudent man acting in a like capacity and familiar with such
matter would use in the conduct of an enterprise of a like character and
with like aims. Any Fiduciary shall discharge his duties in accordance
with the documents and instruments governing the Plan insofar as such
documents and
- 33 -
<PAGE> 40
instruments are consistent with the provisions of ERISA. Notwithstanding
any other provisions of the Plan, no Fiduciary shall be authorized to
engage in any transaction which is prohibited by Section Section 408 and
2003(a) of ERISA or Code Section 4975 in the performance of its duties
hereunder.
10.07 Claims Procedure. Any Participant, former Participant, Beneficiary, or
Spouse or authorized representative thereof (hereinafter referred to as
"Claimant"), may file a claim for benefits under the Plan by submitting
to the Committee a written statement describing the nature of the claim
and requesting a determination of its validity under the terms of the
Plan. Within ninety (90) days after the date such claim is received by
the Committee, it shall issue a ruling with respect to the claim. If
special circumstances require an extension of time for processing the
claim, the Committee shall send the Claimant written notice of the
extension prior to the termination of the 90-day period. The written
notice shall indicate the special circumstances requiring an extension
and the date by which the Committee believes a decision will be made. In
no case, however, shall the extension of time delay the Committee's
decision on such appeal request beyond 180 days following receipt of the
claim for benefits. If the claim is wholly or partially denied, written
notice shall be furnished to the Claimant, which notice shall set forth
in a manner calculated to be understood by the Claimant:
(1) The specific reason or reasons for denial;
(2) Specific reference to pertinent Plan provisions on which the denial
is based;
(3) 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
(4) An explanation of the claims review procedures.
Any Claimant whose claim for benefits has been denied, may appeal such
denial by resubmitting to the Committee a written statement requesting a
further review of the decision within sixty (60) days of the date the
Claimant receives notice of such denial. Such statement shall set forth
the reasons supporting the claim, the reasons such claim should not have
been denied, and any other issues or comments which the Claimant deems
appropriate with respect to the claim.
If the Claimant shall request in writing, the Committee shall make
copies of the Plan documents pertinent to his claim available for
examination of the Claimant.
Within sixty (60) days after the request for further review is received,
the Committee shall review its determination of benefits and the reasons
therefor and notify the Claimant in writing of its final decision. Such
written notice shall include specific reasons for the decision, written
in a manner calculated to be understood by the Claimant, with specific
references to the pertinent Plan provisions on which the decision is
based. If special
- 34 -
<PAGE> 41
circumstances require an extension of time for processing the appeal, the
Committee shall send the Claimant written notice of the extension prior
to the termination of the 60-day period. In no case, however, shall the
extension of time delay the Committee's decision on such appeal request
beyond 120 days following receipt of the appeal request.
The Committee's decision of appeal may be reviewed by the Executive
Committee, which shall have the right to overrule the Committee. If the
Committee's decision is not reviewed by the Executive Committee, the
Committee's determination shall be conclusive as to all persons.
10.08 Indemnification of Committee. To the extent permitted under ERISA, the
Plan shall indemnify the Executive Committee and the Committee against
any cost or liability which they may incur in the course of administering
the Plan and executing the duties assigned pursuant to the Plan. The
Employer shall indemnify the Committee and the members of the
Executive Committee against any personal liability or cost not provided
for in the preceding sentence which they may incur as a result of any act
or omission in relation to the Plan or its Participants. Notwithstanding
the foregoing, however, no person shall be indemnified for any act or
omission which results from that person's intentional or willful
misconduct, or illegal activity. The Employer may purchase fiduciary
liability insurance to insure its obligation under this Section. The
Employer shall have the right to select counsel to defend the Executive
Committee or Committee in connection with any litigation arising from the
execution of their duties under the Plan.
- 35 -
<PAGE> 42
ARTICLE 11
AMENDMENT AND TERMINATION
11.01 Right to Amend. The Company intends for the Plan to be permanent so
long as the corporation exists; however, it reserves the right to modify,
alter, or amend this Plan or the Trust Agreement, from time to time, to
any extent that it may deem advisable, including, but not limited to any
amendment deemed necessary to insure the continued qualification of the
Plan under Code Section 40l(a) or to insure compliance with ERISA;
provided, however, that the Company shall not have the authority to amend
this Plan in any manner which will:
(a) permit any part of the Fund (other than such part as is required to
pay taxes and administrative expenses) to be used for or diverted
to purposes other than for the exclusive benefit of the
Participants or their Beneficiaries;
(b) cause or permit any portion of the funds to revert to or become the
property of the Employer; or
(c) change the duties, liabilities, or responsibilities of the Trustee
without its prior written consent.
11.02 Termination and Discontinuance of Contributions. The Company shall have
the right at any time to terminate this Plan or to discontinue
permanently its contributions hereunder (hereinafter referred to as
"Plan Termination"). Upon Plan Termination, the Committee shall direct
the Trustee with reference to the disposition of the Fund, after payment
of any expenses properly chargeable against the Fund. The Trustee shall
distribute all amounts held in Trust to the Participants and others
entitled to distributions in proportion to the Accounts of such
Participants and other distributees as of the date of such Plan
Termination. In the event that this Plan is partially terminated, the
provisions of this Section 11.02 shall apply solely with respect to the
Employees affected by the partial termination. If the Plan is terminated
or partially terminated, or if the Employer permanently discontinues its
contributions to the Plan, then all Participants (in the case of complete
Plan termination or permanent discontinuance of contributions) or the
affected Participants (in the event of partial Plan termination), shall
become 100% vested in all of their Accounts under the Plan immediately
upon such event.
11.03 IRS Approval of Termination. Notwithstanding Section 11.02, the Trustee
shall not be required to make any distribution from this Plan in the event
of complete or partial termination until the Internal Revenue Service has
issued a favorable determination with respect to the Plan's termination.
- 36 -
<PAGE> 43
ARTICLE 12
HIGHLY COMPENSATED EMPLOYEES
12.01 In General. For the purposes of this Plan, the term "Highly Compensated
Employee" is any active Employee described in Section 12.02 below and any
Former Employee described in Section 12.03 below. Various definitions
used in this Article are contained in Section 12.05. A Non-Highly
Compensated Employee is an Employee who is neither a Highly Compensated
Employee nor a Family Member of a Highly Compensated Employee.
12.02 Highly Compensated Employees.
(a) An Employee is a Highly Compensated Employee if during the
Determination Year the Employee:
(1) is a 5 Percent Owner;
(2) receives Compensation in excess of $75,000;
(3) receives Compensation in excess of $50,000 and is a member of
the Top Paid Group; or
(4) is an Includable Officer.
The dollar amounts described above shall be increased annually as
provided in Code Section 414(q)(1).
(b) Calendar Year Election. The Employer hereby elects the
calendar year calculation election described in Temporary
Regulation Section 1.414(q)-1T, Q&A-14(b) or any successor
regulation thereto. Because the Plan uses the calendar year as its
Plan Year, there is no separate Look Back Year calculation. This
election is binding on all other qualified retirement Plans
maintained by the Employer until the election is withdrawn.
12.03 Former Highly Compensated Employee. A Former Employee is a Highly
Compensated Employee if (applying the rules of Section 12.02) the Former
Employee was a Highly Compensated Employee during a Separation Year or
during any Determination Year ending on or after the Former Employee's
55th birthday.
12.04 Family Aggregation Rules.
(a) For purposes of this Article 12, an Employee who is, for a given
Determination Year, either (i) a 5 Percent Owner, or (ii) a Highly
Compensated Employee who
- 37 -
<PAGE> 44
is one of the ten most highly compensated Employees ranked on the
basis of Compensation paid during such year, shall be aggregated
with such Employee's Family Members.
(b) For purposes of this Section 12.04, the term "Family Member" means,
with respect to an Employee described in Section 12.04(a), a person
who is, on any day during the given Determination Year:
(1) his spouse; or
(2) his lineal ascendant or descendant; or
(3) the spouse of his lineal ascendant or descendant.
(c) The determination of Employees and Family Members who must
be aggregated for purposes of this Article 12 shall be made in
accordance with Temporary Regulation Section 1.414(q)-1T, Q&A-11
and Q&A-12.
(d) For purposes of applying the limits of Code Section 401(a)(17) (as
adjusted) with respect to Compensation under Article 13 Section 415
limits), the Compensation for any Employee described in Section 12.
04(a) and for any Family Member who is such Employee's spouse or
lineal descendant under age 19, shall be aggregated. In such
event, the deemed Compensation for each such Employee shall be
an amount equal to the Section 401(a)(17) limit for the Plan Year
(as adjusted) multiplied by a fraction, the numerator of which is
the Employee's actual Compensation for the Plan Year, and the
denominator of which is the aggregate Compensation of the Employee
and the aggregated Family Member for the Plan Year. The same
procedure shall then be used to determine the deemed Compensation
of the aggregated Family Member.
12.05 Definitions. The following special definitions shall apply to this
Article 12:
Compensation for purposes of this Article 12 shall have the same meaning
as defined in Article 2.
Determination Year shall mean the portion of the Plan Year for which an
individual's status as a Highly Compensated Employee is determined.
Employer for purposes of this Article 12 shall mean the Employer and its
Affiliates.
5 Percent Owner shall mean any Employee who owns or is deemed to own
(within the meaning of Code Section 318), more than five percent of the
value of the outstanding stock of the Employer or stock possessing more
than five percent of the total combined voting power of the Employer.
- 38 -
<PAGE> 45
Former Employee shall mean an Employee (i) who has incurred a
Termination of Employment or (ii) who remains employed by the Employer
but who has not performed services for the Employer during the
Determination Year (e.g., an Employee on Authorized Leave of Absence).
Includable Officer shall mean any officer of the Employer who, during
the applicable year, receives Compensation in excess of 50% of the
dollar limitations under Code Section 415(b)(1)(A)(as adjusted by the
Secretary of the Treasury for cost of living increases). The Employer
shall be deemed to have a minimum of 3 officers or, if greater, a number
equal to 10 percent of all Employees. However, no more than 50 officers
shall be considered Includable Officers under this Article 12. If the
Employer does not have any Includable Officers because no officer
receives Compensation in excess of the dollar limitations of Code
Section 415(b)(1)(A), the Employer's highest paid officer shall be
considered an Includable Officer.
Look Back Year shall mean the Plan Year preceding the Determination
Year, or if the Employer elects, the calendar year ending with or within
the determination year.
Separation Year shall mean any of the following years:
(1) An Employee who incurs a Termination of Employment shall have a
Separation Year in the Determination Year in which such Termination
of Employment occurs;
(2) An Employee who remains employed by the Employer but who
temporarily ceases to perform services for the Employer (e.g., an
Employee on Authorized Leave of Absence) shall have a Separation
Year in the calendar year in which he last performs services for
the Employer;
(3) An Employee who remains employed by the Employer but whose
Compensation for a calendar year is less than 50% of the Employee's
average annual Compensation for the immediately preceding three
calendar years (or the Employee's total years of employment, if
less) shall have a Separation Year in such calendar year. However,
such Separation Year shall be ignored if the Employee remains
employed by the Employer and the Employee's Compensation returns to
a level comparable to the Employee's Compensation immediately prior
to such Separation Year.
Top Paid Group shall mean the top 20% of all Employees ranked on the
basis of Compensation received from the Employer during the applicable
year. The number of Employees in the Top Paid Group shall be determined
by ignoring Employees who are non-resident aliens and Employees who do
not perform services for the Employer during the applicable year. The
Employer elects to compute the Top Paid Group without the age and
service exclusion provided in applicable Treasury Regulations.
- 39 -
<PAGE> 46
12.06 Other Methods Permissible. To the extent permitted by the Code,
judicial decisions, Treasury Regulations and IRS pronouncements, the
Committee may (without further amendment to this Plan) take such other
steps and actions or adopt such other methods or procedures (in addition
to those methods and procedures described in this Article 12) to determine
and identify Highly Compensated Employees (including adopting alternative
definitions of Compensation which satisfy Code Section 414(q)(7) and are
uniformly applied).
- 40 -
<PAGE> 47
ARTICLE 13
MAXIMUM BENEFITS
13.01 General Rule.
(a) Notwithstanding any other provision of this Plan, for any Plan
Year, the Annual Additions to a Participant's Account, when
combined with the Annual Additions to the Participant's Account
under all other Qualified individual account plans maintained by
the Employer or its Affiliates shall not exceed the lesser of (i)
$30,000 or (ii) twenty-five percent (25%) of the Participant's
Compensation for such Plan Year (the "maximum permissible amount").
(b) The Employer hereby elects that the Limitation Year for purposes of
Code Section 415 shall be the Plan Year.
(c) For purposes of determining the limit on Annual Additions under
paragraph (a) of this Section, the dollar limit described therein,
to wit, $30,000, shall be increased for each Plan Year to the
extent permitted by law.
(d) If the amount to be allocated to a Participant's Account
exceeds the maximum permissible amount (and for this purpose
Employer Contributions shall be deemed to be allocated after
Pre-Tax Contributions), the excess will be disposed of as follows.
First, if the Participant's Annual Additions exceed the maximum
permissible amount as a result of (i) a reasonable error in
estimating the Participant's Compensation, (ii) a reasonable error
in estimating the amount of Pre-Tax Contributions that the
Participant could make under Code Section 415 or (iii) other facts
and circumstances that the Internal Revenue Service finds
justifiable, the Committee may direct the Trustee to return to the
Participant his Pre-Tax Contributions (and allocable earnings) for
such Plan Year to the extent necessary to reduce the excess amount.
Such returned Pre-Tax Contributions shall be ignored in performing
the discrimination tests of Article 15. Second, any excess Annual
Additions still remaining after the return of Pre-Tax
Contributions, the excess shall be reallocated as determined by the
Committee among the Participants whose Accounts have not exceeded
the limit in the proportion that the Compensation of each such
Participant bears to the Compensation of all such Participants. If
such reallocation would result in an addition to another
Participant's Account which exceeds the permitted limit, that
excess shall likewise be reallocated among the Participants whose
Accounts do not exceed the limit. However, if the allocation or
reallocation of the excess amounts pursuant to these provisions
causes the limitations of Code Section 415 to be exceeded with
respect to each Participant for the limitation year, then any such
excess shall be held unallocated in a 415 Suspense Account. If the
415 Suspense Account is in existence at any time during a
limitation year, other than the limitation year
- 41 -
<PAGE> 48
described in the preceding sentence, all amounts in the 415
Suspense Account shall be allocated and reallocated to
Participants' Accounts (subject to the limitations of Code Section
415) before any Contributions which would constitute annual
additions may be made to the Plan for that limitation year.
(e) If the Participant is covered under another qualified
defined contribution plan maintained by an Employer during any
limitation year, the annual additions which may be credited to a
Participant's account under this Plan for any such limitation year
shall not exceed the maximum permissible amount reduced by the
annual additions credited to a Participant's account under all such
plans for the same limitation year. If a Participant's annual
additions under this Plan and such other plans would result in an
excess amount for a limitation year, the excess amount will be
deemed to consist of the annual additions last allocated (and for
this purpose, Employer Contributions shall be deemed to be
allocated after Pre-Tax Contributions). If an excess amount is
allocated to a Participant on an allocation date of this Plan which
coincides with an allocation date of another plan, the excess
amount attributed to this Plan will be the product of
(i) the total excess amount as of such date, times
(ii) the ratio of (A) the annual additions allocated to the
Participant for the limitation year as of such date under this
Plan to (B) the total annual additions allocated to the
Participant for the limitation year as of such date under this
and all the other qualified defined contribution plans
maintained by the Employer.
Any excess amount attributed to this Plan will be disposed in the manner
described in this Section 13.01 above.
13.02 Combined Plan Limitation. If the Employer or its Affiliates maintains,
or at any time maintained, a Qualified defined benefit plan covering any
Participant in this Plan, the sum of the Participant's defined benefit
plan fraction and defined contribution plan fraction shall not exceed 1.0
in any limitation year and the annual benefit otherwise payable to the
Participant under such defined benefit plan shall be frozen or reduced to
the extent necessary so that the sum of such fractions shall not exceed
1.0.
13.03 Definitions.
For the purposes of this Article 13, the following definitions shall
apply:
(a) "Annual Addition" shall mean the sum of:
(i) Employee Contributions;
(ii) Employer Contributions;
- 42 -
<PAGE> 49
(iii) Forfeitures; and
(iv) Amounts allocated to an individual medical account, as defined
in Code Section 415(l)(2), which is part of a pension or
annuity plan maintained by the Employer. Also, amounts
derived from contributions paid or accrued after December 31,
1985, in taxable years ending after such date, which are
attributable to post-retirement medical benefits allocated to
the separate account of a key employee, as defined in Code
Section 419A(d)(3), under a welfare benefit fund, as defined
in Code Section 419(e), maintained by the Employer, are
treated as Annual Additions.
Annual Additions shall not include any amounts credited to the
Participant's Account resulting from Rollover Contributions.
(b) "Affiliates" shall have that meaning contained in Article 2
except that for purposes of determining who is an Affiliate the
phrase "more than 50 percent" shall be substituted for the phrase
"at least 80 percent" each place it appears in Code Section
1563(a)(1).
(c) "Compensation" shall have the same meaning as defined in Article 2
except that Compensation for purposes of Article 13 shall not
include salary deferrals under a Code Section 401(k) Plan or under
a Code Section 125 Cafeteria Plan.
(d) "Defined Benefit Fraction" means a fraction, the numerator of which
is the sum of the Participant's projected annual benefits under all
the defined benefit plans (whether or not terminated) maintained by
the Employer or its Affiliates, and the denominator of which is the
lesser of (i) 125 percent of the dollar limitation in effect for
the limitation year under Code Section 415(b)(1)(A) or (ii) 140
percent of the Highest Average Compensation.
(e) "Defined Contribution Fraction" means a fraction, the numerator of
which is the sum of the Annual Additions to the Participant's
account under all the defined contribution plans (whether or not
terminated) maintained by the Employer or its Affiliates for the
current and all prior limitation years, and the denominator of
which is the sum of the Maximum Aggregate Amounts for the current
and all prior limitation years of service with the Employer or its
Affiliates (regardless of whether a defined contribution plan was
maintained by the Employer or its Affiliates). The Maximum
Aggregate Amount in any limitation year is the lesser of (i) 125
percent of the dollar limitation in effect under Code Section
415(c)(1)(A); or (ii) 35 percent of the Participant's compensation
for such year.
(f) "Highest Average Compensation" means the average compensation for
the three consecutive years of service with the employer that
produces the highest average.
- 43 -
<PAGE> 50
(g) "Projected Annual Benefit" means the annual retirement benefit
(adjusted to an actuarially equivalent straight life annuity if
such benefit is expressed in a form other than a straight life
annuity or qualified joint and survivor annuity) to which the
Participant would be entitled under the terms of the plan assuming
(i) the Participant will continue employment until normal
retirement age under the plan (or current age, if later), and (ii)
the Participant's compensation for the current limitation year and
all other relevant factors used to determine benefits under the
plan will remain constant for all future limitation years.
- 44 -
<PAGE> 51
ARTICLE 14
TOP HEAVY RULES
14.01 General. The provisions of this Article of the Plan shall become
effective in any Plan Year in which the Plan is determined to be Top
Heavy and shall supersede any conflicting provision of this Plan.
14.02 Definitions.
(a) Top Heavy. The Plan shall be Top Heavy for the Plan Year if, as of
the Valuation Date which coincides with or immediately precedes
the Determination Date, the value of the Participant Accounts of Key
Employees exceeds 60% of the value of all Participant Accounts. If
the Employer maintains more than one plan, all plans in which any
Key Employee participates and all plans which enable this Plan to
satisfy the anti-discrimination requirements of Code Section
Section 401(a)(4) or 410 must be combined with this Plan ("Required
Aggregation Group") for the purposes of applying the 60% test
described in the preceding sentence. Plans maintained by the
Employer which are not in the required aggregation group may be
combined at the Employer's election with this Plan for the purposes
of determining Top Heavy status if the combined plan satisfies the
requirements of Code Section Section 401(a)(4) and 410 ("Permissive
Aggregation Group"). In determining the value of Participant
Accounts, all distributions made during the five-year period ending
on the Determination Date shall be included and any unallocated
Employer Contributions or forfeitures attributable to the Plan Year
in which the Determination Date falls shall also be included. The
Account of (i) any Employee who at one time was a Key Employee but
who is not a Key Employee for any of the five Plan Years ending on
the Determination Date; and (ii) any Employee who has not performed
services for the Employer or a related employer maintaining a plan
in the aggregation group for the five Plan Years ending on the
Determination Date, shall be disregarded in determining Top Heavy
status.
If the Employer maintains a defined benefit plan during the Plan
Year which is subject to aggregation with this Plan, the 60% test
shall be applied after calculating the present value of the
Participants' accrued benefits under the defined benefit plan in
accordance with the rules set forth in that plan and combining the
present value of such accrued benefits with the Participant's
account balances under this Plan.
Solely for the purpose of determining if the Plan, or any other
plan included in the Required Aggregation Group, is Top-Heavy, a
Non-Key Employee's accrued benefit in a defined benefit plan shall
be determined under (i) the method, if any, that uniformly applies
for accrual purposes under all plans maintained by the
- 45 -
<PAGE> 52
Affiliates, or (ii) if there is no such method, as if such benefit
accrued not more rapidly than the slowest accrual rate permitted
under the fractional accrual rate of Code Section 411(b)(1)(C).
(b) Key Employee. Any employee of the Employer who, during the
Plan Year or the four preceding Plan Years was an officer receiving
Compensation in excess of 50% of the limit described in Code
Section 415(b)(1)(A), one of the ten employees of the Employer
owning the largest interests in the Employer and receiving
Compensation equal to or greater than the dollar limit described in
Code Section 415(c)(1)(A), a greater than 5% owner of the
Employer, a greater than 1% owner of the Employer receiving
Compensation in excess of $150,000, or the Beneficiary of a Key
Employee. The Code Section 415(b)(1)(A) and 415(c)(1)(A) limits
referred to in the preceding sentence shall be the specified dollar
limit plus any increases reflecting cost of living adjustments
specified by the Secretary of the Treasury.
(c) Determination Date. The last day of the Plan Year immediately
preceding the Plan Year for which Top Heavy status is determined.
For the first Plan Year, the Determination Date shall be the last
day of the first Plan Year.
(d) Non-Key Employee. Any Participant who is not a Key Employee.
(e) Employer. The term "Employer" shall include any Affiliate of such
Employer.
(f) Compensation. The term "Compensation" shall have that meaning as
defined in Article 13.
14.03 Minimum Benefit.
(a) Except as provided below, the Employer Contributions allocated on
behalf of any Non-Key Employee who is employed by the Employer on
the Determination Date shall not be less than the lesser of (i) 3%
of such Non-Key Employee's Compensation or (ii) the largest
percentage of Employer Contributions, as a percentage of the Key
Employee's Compensation, allocated on behalf of any Key Employee
for such Plan Year.
(b) The minimum allocation is determined without regard to any
Social Security contribution and shall be made even though, under
other Plan provisions, the Non-Key Employee would have received a
lesser allocation or no allocation for the Plan Year because of the
Non-Key Employee's failure to complete 1,000 Hours of Service, his
failure to make mandatory employee contributions, or his earning
compensation less than a stated amount.
(c) If the Employer maintains a defined benefit plan in addition to
this Plan, the minimum contribution and benefit requirements for
both plans in a Top Heavy
- 46 -
<PAGE> 53
Plan Year may be satisfied by an allocation of Employer
Contributions to the Account of each Non-Key Employee in the
amount of 5% of the Non-Key Employee's compensation.
(d) If a Participant's Employment is terminated while the Plan is Top
Heavy, the following vesting schedule shall be applied with respect
to such Participant, notwithstanding any provisions in this Plan to
the contrary:
<TABLE>
<CAPTION>
Years of Vesting Service
at Termination of Employment Vested Percentage
---------------------------- -----------------
<S> <C>
Less Than 3 Years 0%
3 Years or More 100%
</TABLE>
14.04 Combined Plan Limitation For Top Heavy Years. In any Plan Year during
which more than 90% of the Participant Account balances are attributable
to Key Employees, 100% or an equivalent factor shall be substituted for
125% or an equivalent factor in the combined plan fraction denominators
set forth in the Section of this Plan which limits maximum benefits
pursuant to Code Section 415. In any Plan Year during which more than
60% but not more than 90% of the Participant Account balances are
attributable to Key Employees, 100% or an equivalent factor shall be
substituted for 125% or an equivalent factor in the combined plan
fraction denominators unless the Account of each Non-Key Employee
participating in the Plan receives an allocation which satisfies Section
14.03 above, except that for this purpose the figure "4%" shall be
substituted for "3%" where it appears in Section 14.03(a) and the figure
"7.5%" shall be substituted for "5%" where it appears in Section
14.03(c).
- 47 -
<PAGE> 54
ARTICLE 15
SPECIAL DISCRIMINATION RULES
15.01 Definitions.
Actual Contribution Percentage or ACP shall mean the ratio (expressed as a
percentage) of (i) the sum of the Employer Matching Contributions on
behalf of the Participant for the Plan Year and, to the extent permitted
in Treasury Regulations and elected by the Employer, the Participant's
Qualified Elective Deferrals and Qualified Nonelective Contributions to
(ii) the Participant's Compensation for the Plan Year. The Employer, on
an annual basis, may elect to include or not to include Qualified Elective
Deferrals and Qualified Nonelective Contributions in computing the ACP for
a Plan Year. An Employer may elect on an annual basis to count a
Participant's Employer Matching Contribution or Qualified Nonelective
Contribution toward satisfying the required minimum contribution under
Section 15.03 (minimum contribution for Non-Key Employees in a top-heavy
plan) in lieu of including such contributions in the ACP. If a
Participant (as defined below) does not receive an allocation of Employer
Contributions for a Plan Year, such Participant's ACP for the Plan Year
shall be zero.
Actual Deferral Percentage or ADP shall mean the ratio (expressed as a
percentage) of (i) the sum of Pre-Tax Contributions on behalf of a
Participant for the Plan Year (excluding any Excess Deferrals by a
Non-highly Compensated Employee) and, to the extent permitted in Treasury
Regulations and elected by the Employer, the Participant's Qualified
Nonelective Contributions and Qualified Matching Contributions to (ii) the
Participant's Compensation for the Plan Year. The Employer, on an annual
basis, may elect to include or not to include Qualified Nonelective
Contributions and Qualified Matching Contributions in computing the ADP
for a Plan Year. In the case of a Participant (as defined below) who does
not make a Pre-Tax Contribution for a Plan Year and is not allocated a
Qualified Nonelective Contribution for such Plan Year, such Participant's
ADP for the Plan Year shall be zero.
Average Actual Contribution Percentage shall mean the average (expressed
as a percentage) of the Actual Contribution Percentages of the
Participants in a group. The percentage shall be rounded to the nearest
one-hundredth of one percent (four decimal places).
Average Actual Deferral Percentage shall mean the average (expressed as a
percentage) of the Actual Deferral Percentages of the Participants in a
group. The percentage shall be rounded to the nearest one-hundredth of
one percent (four decimal places).
Combined ADP and ACP Test shall have the meaning as defined in Section
15.09.
- 48 -
<PAGE> 55
Compensation for purposes of this Article 15 shall be that definition
selected by the Committee that satisfies the requirements of Code
Section Section 414(s) and 401(a)(17). Such definition may change from
year to year but must apply uniformly among all Eligible Employees being
tested under the Plan for a given Plan Year and among all Employees being
tested under any other plan that is aggregated with this Plan during the
Plan Year. If the Committee fails to select a definition of Compensation
for purposes of this Article 15, Compensation (for purposes of Article 15
shall have the same meaning as defined in Article 2).
Employer Matching Contributions shall mean, for purposes of this Article
15, an Employer Matching Contribution for a particular Plan Year includes
only those contributions that are (i) allocated to the Participant's
Account under the Plan as of any date within such Plan Year, (ii)
contributed to the Trust no later than the end of the 12-month period
following the close of such Plan Year, and (iii) made on account of such
Participant's Pre-Tax Contributions for the Plan Year.
Excess Deferrals shall have that meaning as defined in Section 15.02.
Excess ACP Contributions shall have that meaning as defined in Section
15.08.
Excess ADP Deferrals shall have that meaning as defined in Section 15.05.
Family Member. See Section 12.04(b).
Highly Compensated Employee. See Article 12.
Maximum Combined Percentage shall have the meaning as defined in Section
15.09(c).
Non-highly Compensated Employee. See Article 12.
Participant shall mean, for purposes of this Article 15, a Participant
shall mean any Eligible Employee who (i) is eligible to receive an
allocation of an Employer Matching Contribution, even if no Employer
Matching Contribution is allocated due to the Eligible Employee's failure
to make a required Pre-Tax Contribution, (ii) is eligible to make a
Pre-Tax Contribution, including an Eligible Employee whose right to make
Pre-Tax Contribution has been suspended because of an election not to
participate, and (iii) is unable to receive an Employer Matching
Contribution or make a Pre-Tax Contribution because his Compensation is
less than a stated amount.
Pre-Tax Contributions shall mean, for purposes of this Article 15, a
Pre-Tax Contribution is taken into account only if the contribution (i)
is allocated to the Participant's Account under the terms of the Plan as
of any date within the Plan Year, and (ii) relates to Compensation that
would have been received by the Participant during the Plan Year or within
2-1/2 months after the Plan Year but for the deferral election. A Pre-Tax
Contribution is considered to be allocated as of a date within a Plan Year
only if the
- 49 -
<PAGE> 56
allocation is not contingent on participation in the Plan or performance
of service after the Plan Year to which the Pre-Tax Contribution relates.
Qualified Elective Deferral shall mean Pre-Tax Contributions designated
by the Committee as Qualified Elective Deferrals in order to meet the ACP
testing requirements of Section 15.06. In addition, the following
requirements must be satisfied:
(1) The aggregate of all Pre-Tax Contributions for the Plan Year
(including the Qualified Elective Deferrals) must satisfy the ADP
testing requirements set forth in Section 15.03(a).
(2) The aggregate of all Pre-Tax Contributions for the Plan Year
(excluding the Qualified Elective Deferrals) must satisfy the ADP
testing requirements set froth in Section 15.03(a).
(3) Qualified Elective Deferrals must satisfy all other
provisions of this Plan applicable to Pre-Tax Contributions and
shall remain part of the Participant's Pre-Tax Contribution Account.
(4) Except as provided by this definition, Qualified Elective
Deferrals shall be excluded in determining whether any other
contribution or benefit satisfies the nondiscrimination requirements
of Code Section Section 401(a)(4) and 401(k)(3).
Qualified Matching Contribution shall mean an Employer Matching
Contribution that the Committee designates as a Qualified Matching
Contribution to meet the ADP testing requirements of Section 15.03. In
addition, all of the following requirements must be satisfied:
(1) The Employer Matching Contribution for a Plan Year (including any
Qualified Matching Contributions for such Plan Year) must satisfy
the requirements of Code Section 401(a)(4).
(2) The Employer Matching Contributions for a Plan Year (excluding any
Qualified Matching Contributions for such Plan year that are used
to satisfy the ADP testing requirements of Section 15.03) must
satisfy the requirements of Code Section 401(a)(4).
(3) The Qualified Matching Contribution for a given Plan Year satisfies
the requirements of an Employer Matching Contribution for such Plan
Year as defined in this Section 15.01.
(4) The Qualified Matching Contribution, at the time it was contributed
to the Plan, was 100% vested at all times and was subject to the
distribution restrictions applicable to Pre-Tax Contributions
(except that the Qualified Matching Contribution cannot be
distributed as a hardship distribution).
- 50 -
<PAGE> 57
(5) Qualified Matching Contributions shall, if deemed necessary, be held
in a sub-account of the Participant's Employer Matching Contribution
Account.
Qualified Nonelective Contribution shall mean an Employer contribution
designated by the Committee as a Qualified Nonelective Contribution in
order to meet the ADP testing requirements of Section 15.03 or the ACP
testing requirements of Section 15.06. In addition, the following
requirements must be satisfied:
(1) The Qualified Nonelective Contribution, whether or not used to
satisfy the requirements of Sections 15.03 or 15.06, must meet
the requirements of Code Section 401(a)(4).
(2) Qualified Nonelective Contributions which are taken into account in
order to meet the requirements of Section 15.03 or 15.06 (as
applicable) shall not be counted in determining whether the testing
requirements of any of such other Sections are met.
(3) The Qualified Nonelective Contributions shall be subject to all
provisions of this Plan applicable to Pre-Tax Contributions.
(4) Except as provided in this paragraph, the Qualified Nonelective
Contributions shall be excluded in determining whether any other
contribution or benefit satisfies the nondiscrimination
requirements of Code Section Section 401(a)(4) and 401(k)(3).
15.02 Limit on Pre-Tax Contributions.
(a) Notwithstanding any other provision of the Plan to the
contrary, the aggregate of a Participant's Pre-Tax Contributions
during a calendar year may not exceed the amount established by the
Secretary of the Treasury pursuant to Code Section 402(g). Any
Pre-Tax Contributions in excess of the foregoing limit ("Excess
Deferral"), plus any income and minus any loss allocable thereto,
may be distributed to the applicable Participant no later than April
15 following the calendar year in which the Pre-Tax Contributions
were made.
(b) Any Participant who has an Excess Deferral during a calendar
year may receive a distribution of the Excess Deferral during such
calendar year plus any income or minus any loss allocable thereto,
provided (1) the Participant requests (or is deemed to request) the
distribution of the Excess Deferral, (2) the distribution occurs
after the date the Excess Deferral arose, and (3) the Committee
designates the distribution as a distribution of an Excess Deferral.
(c) If a Participant makes a Pre-Tax Contribution under this Plan and
in the same calendar year makes a contribution to a Code Section
401(k) plan containing a cash or deferred arrangement (other than
this Plan), a Code Section 408(k) plan (simplified employee pension
plan) or a Code Section 403(b) plan (tax sheltered annuity) and,
after
- 51 -
<PAGE> 58
the return of any Excess Deferral pursuant to Section 15.02(a) and
(b) the aggregate of all such Pre-Tax Contributions and
contributions exceed the limitations contained in Code Section
402(g), then such Participant may request that the Committee return
all or a portion of the Participant's Pre-Tax Contributions for the
calendar year plus any income and minus any loss allocable thereto.
The amount by which such Pre-Tax Contributions and contributions
exceed the Code Section 402(g) limitations will also be known as an
Excess Deferral.
(d) Any request for a return of Excess Deferrals arising out of
contributions to a plan described in Section 15.02(c) above which is
maintained by an entity other than the Employer must:
(1) be made in writing;
(2) be submitted to the Committee not later than the March 1
following the Plan Year in which the Excess Deferral arose;
(3) specify the amount of the Excess Deferral; and,
(4) contain a statement that if the Excess Deferral is not
distributed, it will, when added to amounts deferred under
other plans or arrangements described in Code Section Section
401(k), 408(k),or 403(b), exceed the limit imposed on the
Participant by Code Section 402(g) for the year in which the
Excess Deferral occurred.
In the event an Excess Deferral arises out of contributions to a
plan (including this Plan) described in Section 15.02(c) above which
is maintained by the Employer, the Participant making the Excess
Deferral shall be deemed to have requested a return of the Excess
Deferral.
(e) Pre-Tax Contributions may only be returned to the extent
necessary to eliminate a Participant's Excess Deferral. Excess
Deferrals returned to the Participant under this Section 15.02 shall
not be treated as annual additions under the Plan. In no event
shall the returned Excess Deferrals for a particular calendar year
exceed the Participant's aggregate Pre-Tax Contributions for such
calendar year.
(f) The income or loss allocable to a Pre-Tax Contribution that
is returned to a Participant pursuant to Section 15.02(a) or (c)
shall be determined by multiplying the income or loss allocable to
the Participant's Account for the calendar year in which the Excess
Deferral arose by a fraction. The numerator of the fraction is the
Excess Deferral. The denominator of the fraction is the value of
the Participant's Account balance on the last day of the calendar
year in which the Excess Deferral arose reduced by any income
allocated to the Participant's Account for such calendar year and
increased by any loss allocated to the Participant's Account for
such calendar year.
- 52 -
<PAGE> 59
(g) The income or loss allocable to an Excess Deferral that is
returned to a Participant pursuant to Section 15.02(b) shall be
determined using any reasonable method adopted by the Plan to
measure income earned or loss incurred during the Plan Year or any
other method authorized by the Internal Revenue Service to compute
the income earned or loss incurred for the period commencing on
January 1 of the calendar year in which the Pre-Tax Contribution was
made and ending on the date the Excess Deferral was distributed.
(h) Any Employer Matching Contribution allocable to an Excess
Deferral that is returned to a Participant pursuant to this Section
15.02 shall be forfeited notwithstanding the provisions of Article 7
(vesting). For this purpose, however, the Pre-Tax Contributions
that are returned to the Participant as an Excess Deferral shall be
deemed to be first those Pre-Tax Contributions for which no Employer
Matching Contribution was made and second those Pre-Tax
Contributions for which an Employer Matching Contribution was made.
Accordingly, if the Pre-Tax Contributions that are returned to the
Participant as Excess Deferrals were not matched, no Employer
Matching Contribution will be forfeited.
15.03 Average Actual Deferral Percentage.
(a) The Average Actual Deferral Percentage for Highly Compensated
Employees for each Plan Year and the Average Actual Deferral
Percentage for Non-highly Compensated Employees for the same Plan
Year must satisfy one of the following tests:
(1) The Average Actual Deferral Percentage for Participants who
are Highly Compensated Employees for the Plan Year shall not
exceed the Average Actual Deferral Percentage for Participants
who are Non-highly Compensated Employees for the Plan Year
multiplied by 1.25; or
(2) The excess of the Average Actual Deferral Percentage for
Participants who are Highly Compensated Employees for the Plan
Year over the Average Actual Deferral Percentage for
Participants who are Non-highly Compensated Employees for the
Plan Year is not more than two percentage points, and the
Average Actual Deferral Percentage for Participants who are
Highly Compensated Employees is not more than the Average
Actual Deferral Percentage for Participants who are Non-highly
Compensated Employees multiplied by two.
(b) The permitted disparity between the Average Actual Deferral
Percentage for Highly Compensated Employees and the Average Actual
Deferral Percentage for Non-Highly Compensated Employees may be
further reduced as required by Section 15.09.
- 53 -
<PAGE> 60
(c) If at the end of the Plan Year, the Plan does not comply with
the provisions of Section 15.03(a), the Employer may do any or all
of the following, except as otherwise provided in the Code or
Treasury Regulations:
(1) Distribute Pre-Tax Contributions to certain Highly Compensated
Employees as provided in Section 15.05; or
(2) Make a Qualified Nonelective Contribution on behalf of any or
all of the Non-highly Compensated Employees and aggregate such
contributions with the Non-highly Compensated Employees' Pre-
Tax Contributions Deferrals as provided in Section 15.01
(definition of ADP); or
(3) Aggregate Qualified Matching Contributions with Pre-Tax
Contributions as provided in Section 15.01 (definition of ADP).
15.04 Special Rules For Determining Average Actual Deferral Percentage.
(a) The Actual Deferral Percentage for any Highly Compensated
Employee for the Plan Year who is eligible to have Pre-Tax
Contributions allocated to his Account under two or more
arrangements described in Code Section 401(k) that are maintained
by an Employer or its Affiliates shall be determined as if such
Pre-Tax Contributions were made under a single arrangement.
(b) If two or more plans maintained by the Employer or its Affiliates
are treated as one plan for purposes of the nondiscrimination
requirements of Code Section 401(a)(4) or the coverage requirements
of Code Section 410(b) (other than for purposes of the average
benefits test), all Pre-Tax Contributions that are made pursuant to
those plans shall be treated as having been made pursuant to one
plan.
(c) For purposes of determining the ADP of a Highly Compensated
Employee who is either a 5% or more owner of an Employer or one of
the ten highest paid Highly Compensated Employees during the Plan
Year, the Pre-Tax Contributions and Compensation of such Participant
shall include the Pre-Tax Contributions and Compensation of his
Family Members. Any person who is a Family Member shall not be
treated as a separate Employee in determining the Average Actual
Deferral Percentage for either Non-highly Compensated Employees or
for Highly Compensated Employees.
(d) The determination and treatment of the Pre-Tax Contributions
and Actual Deferral Percentage of any Participant shall be in
accordance with such other requirements as may be prescribed from
time to time in Treasury Regulations.
- 54 -
<PAGE> 61
15.05 Distribution of Excess ADP Deferrals.
(a) Pre-Tax Contributions exceeding the limitations of Section
15.03(a) ("Excess ADP Deferrals") and any income or loss allocable
to such Excess ADP Deferral shall be designated by the Committee as
Excess ADP Deferrals and shall be distributed to Highly Compensated
Employees whose Accounts were credited with Excess ADP Deferrals in
the preceding Plan Year. In determining the amount of Excess ADP
Deferrals for each Highly Compensated Employee, the Committee shall
reduce the ADP for each Highly Compensated Employee as follows:
(1) The ADP for the Highly Compensated Employee(s) with the
highest ADP will be reduced until equal to the second
highest ADPs under the Plan; then
(2) The ADP for the two (or more) Highly Compensated Employees
with the highest ADPs under the Plan will be reduced until
equal to the third highest ADP level under the Plan; then
(3) The steps described in (1) and (2) shall be repeated with
respect to the third and successive highest ADP levels under
the Plan until the Plan complies with one or both of the ADP
tests described in Section 15.03(a).
(b) To the extent administratively possible, the Committee shall
distribute all Excess ADP Deferrals and any income or loss allocable
thereto prior to 2-1/2 months following the end of the Plan Year in
which the Excess ADP Deferrals arose. In any event, however, the
Excess ADP Deferrals and any income or loss allocable thereto shall
be distributed prior to the end of the Plan Year following the Plan
Year in which the Excess ADP Deferrals arose. Excess ADP Deferrals
shall be treated as annual additions under the Plan.
(c) The income or loss allocable to Excess ADP Deferrals shall be
determined by multiplying the income or loss allocable to the
Participant's Account for the Plan Year in which the Excess ADP
Deferrals arose by a fraction. The numerator of the fraction is the
Excess ADP Deferral. The denominator of the fraction is the value
of the Participant's Account balance on the last day of the Plan
Year in which the Excess ADP Deferrals arose reduced by any income
allocated to the Participant's Account for such Plan Year and
increased by any loss allocated to the Participant's Account for the
Plan Year.
(d) If an Excess Deferral has been distributed to the Participant
pursuant to Section 15.02(a) or (b) for any taxable year of a
Participant, then any Excess ADP Deferral allocable to such
Participant for the same Plan Year in which such taxable year ends
shall be reduced by the amount of such Excess Deferral.
- 55 -
<PAGE> 62
(e) Distribution of Excess ADP Deferrals to Participants described in
Section 15.04(c) shall be made in accordance with the provisions of
Treasury Regulation Section 1.401(k)-1(f)(5)(ii) or any successor
Treasury Regulation thereto.
(f) Any Employer Matching Contribution allocable to an Excess ADP
Deferral that is returned to the Participant pursuant to this
Section 15.05 shall be forfeited notwithstanding the provisions of
Article 7 (vesting). For this purpose, however, the Pre-Tax
Contributions that are returned to the Participant shall be deemed
to be first those Pre-Tax Contributions for which no Employer
Matching Contribution was made and second those Pre-Tax
Contributions for which an Employer Matching Contribution was made.
Accordingly, unmatched Pre-Tax Contributions shall be returned as an
Excess ADP Deferral before matched Pre-Tax Contributions.
15.06 Average Actual Contribution Percentage.
(a) The Average Actual Contribution Percentage for Highly
Compensated Employees for each Plan Year and the Average Actual
Contribution Percentage for Non-highly Compensated Employees for the
same Plan Year must satisfy one of the following tests:
(1) The Average Actual Contribution Percentage for Participants
who are Highly Compensated Employees for the Plan Year shall
not exceed the Average Actual Contribution Percentage for
Participants who are Non-highly Compensated Employees for the
Plan Year multiplied by 1.25; or
(2) The excess of the Average Actual Contribution Percentage for
Participants who are Highly Compensated Employees for the Plan
Year over the Average Actual Contribution Percentage for
Participants who are Non-highly Compensated Employees for the
Plan Year is not more than two percentage points, and the
Average Actual Contribution Percentage for Participants who
are Highly Compensated Employees is not more than the Average
Actual Contribution Percentage for Participants who are
Non-highly Compensated Employees multiplied by two.
(b) If at the end of the Plan Year, the Plan does not comply with
the provisions of Section 15.06(a), the Employer may do any or all
of the following in order to comply with such provision as
applicable (except as otherwise provided in the Code or in Treasury
Regulations):
(1) Aggregate Qualified Elective Deferrals with the Employer
Matching Contributions of Non-highly Compensated Employees as
provided in Section 15.01 (definition of ACP).
- 56 -
<PAGE> 63
(2) Distribute Employer Matching Contributions to certain Highly
Compensated Employees as provided in Section 15.08.
(3) Make a Qualified Nonelective Contribution on behalf of any or
all of the Non-highly Compensated Employees and aggregate such
contributions with the Non-highly Compensated Employees'
Employer Matching Contributions as provided in Section 15.01
(definition of ACP).
15.07 Special Rules For Determining Average Actual Contribution Percentages.
(a) The Actual Contribution Percentage for any Highly Compensated
Employee for the Plan Year who is eligible to have Employer Matching
Contributions allocated to his Account under two or more
arrangements described in Code Section Section 401(a) or 401(m)
that are maintained by an Employer or its Affiliates shall be
determined as if such contributions were made under a single
arrangement.
(b) If two or more plans maintained by the Employer or its
Affiliates are treated as one plan for purposes of the
nondiscrimination requirements of Code Section 401(a)(4) or the
coverage requirements of Code Section 410(b) (other than for
purposes of the average benefits test), all Employer Matching
Contributions that are made pursuant to those plans shall be treated
as having been made pursuant to one plan.
(c) For purposes of determining the Actual Contribution Percentage of a
Highly Compensated Employee who is a 5% or more owner of an Employer
or one of the ten highest paid Highly Compensated Employees during
the Plan Year, the Employer Matching Contributions and Compensation
of such Participant shall include all Employer Matching
Contributions and Compensation of Family Members. Family Members
shall not be treated as separate Employees for purposes of
determining the Average Actual Contribution Percentage for either
Non-highly Compensated Employees or for Highly Compensated
Employees.
(d) The determination and treatment of the Actual Contribution
Percentage of any Participant shall satisfy such other requirements
as may be prescribed by the Secretary of the Treasury.
15.08 Distribution of Employer Matching Contributions.
(a) Employer Matching Contributions exceeding the limitations of
Section 15.06(a) ("Excess ACP Contributions") and any income or loss
allocable to such Excess ACP Contribution may be designated by the
Committee as Excess ACP Contributions and may be distributed in the
Plan Year following the Plan Year in which the Excess ACP
Contributions arose to those Highly Compensated Employees whose
Accounts were credited with Excess ACP Contributions in the
preceding Plan Year. The amount of Excess ACP Contributions to be
distributed
- 57 -
<PAGE> 64
to a Highly Compensated Employee shall be determined using the
procedure described in Section 15.05(a).
(b) To the extent administratively possible, the Committee shall
distribute all Excess ACP Contributions and any income or loss
allocable thereto prior to 2-1/2 months following the end of the
Plan Year in which the Excess ACP Contributions arose. In any
event, however, the Excess ACP Contributions and any income or loss
allocable thereto shall be distributed prior to the end of the Plan
Year following the Plan Year in which the Excess ACP Contributions
arose.
(c) The income or loss allocable to Excess ACP Contributions
shall be determined by multiplying the income or loss allocable to
the Participant's Account for the Plan Year in which the Excess ACP
Contribution arose by a fraction. The numerator of the fraction is
the Excess ACP Contributions. The denominator of the fraction is
the value of the Participant's Account on the last day of the Plan
Year reduced by any income allocated to the Participant's Account by
such Plan Year and increased by any loss allocated to the
Participant's Account for the Plan Year.
(d) Amounts distributed to Highly Compensated Employees under
this Section 15.08 shall be treated as annual additions with respect
to the Employee who received such amount.
(e) Distribution of Excess ACP Contributions to Participants
described in Section 15.08(c) shall be made in accordance with the
provisions of Treasury Regulation Section 1.401(m)-1(e)(2)(iii) or
any successor Treasury Regulations thereto.
15.09 Combined ACP and ADP Test.
(a) The Plan must satisfy the Combined ACP and ADP Test described
in this Section 15.09 only if (1) the Average Actual Deferral
Percentage of the Highly Compensated Employees exceeds 125% of the
Average Actual Deferral Percentage of the Non-highly Compensated
Employees and (2) the Average Actual Contribution Percentage of the
Highly Compensated Employees exceeds 125% of the Average Actual
Contribution Percentage of the Non-highly Compensated Employees.
(b) The Combined ACP and ADP Test is satisfied if the sum of the
Highly Compensated Employees' Average Actual Deferral Percentage and
Average Actual Contribution Percentage is equal to or less than the
Maximum Combined Percentage defined in paragraph (c) below.
(c) The Maximum Combined Percentage shall be determined by adjusting the
Non-highly Compensated Employees' Average Actual Deferral Percentage
and Average Actual Contribution Percentage in the following manner:
- 58 -
<PAGE> 65
(1) The greater of the two percentages shall be multiplied by
1.25; and
(2) The lesser of the two percentages shall be increased by two
percentage points; however, in no event shall such adjusted
percentage exceed twice the original percentage.
The sum of (1) and (2) shall be the Maximum Combined Percentage.
Notwithstanding the foregoing, the Maximum Combined Percentage
shall be determined in the following manner if such calculation
results in a higher Maximum Combined Percentage than the formula
specified above:
(1) The lesser of the Average Actual Deferral Percentage and
Average Actual Contribution Percentage of the Non-Highly
Compensated Employees shall be multiplied by 1.25; and
(2) The greater of such two percentages shall be increased by two
percentage points; however, in no event shall such percentage
exceed twice the original percentage.
(d) In the event the Plan does not satisfy the Combined ADP and
ACP Test, the Highly Compensated Employees' Average Actual
Contribution Percentage shall be decreased by either distributing
Employer Matching Contributions to certain Highly Compensated
Employees by using the procedures described in Section 15.08 or by
making a Qualified Nonelective Contribution as provided in Section
15.06(b)(3) until the sum of such percentage and the Highly
Compensated Employees' Average Actual Deferral Percentage equals the
Maximum Combined Percentage.
(e) If Employer Matching Contributions are distributed to certain
Highly Compensated Employees in order to satisfy the Combined ADP
and ACP Test, income or loss allocable to such Employer Matching
Contributions shall also be distributed.
(f) To the extent administratively possible, the Committee shall
distribute the Employer Matching Contributions (if applicable) and
allocable income or loss prior to 2-1/2 months following the end of
the Plan Year for which the Combined ADP and ACP Test is computed.
In any event, however, such Employer Matching Contributions (if
applicable) and allocable income or loss shall be distributed by the
end of the Plan Year following the Plan Year for which the Combined
ADP and ACP Test is computed. Employer Matching Contributions that
are distributed pursuant to this Section 15.09 shall be treated as
annual additions under the Plan.
(g) The income or loss allocable to returned Employer Matching
Contributions shall be determined using the same procedures as
Section 15.05(c).
- 59 -
<PAGE> 66
15.10 Order of Applying Certain Sections of Article. In applying the
provisions of this Article 15, the determination and distribution of
Excess Deferrals shall be made first, the determination and elimination
of Excess ACP Contributions shall be made second, the determination and
elimination of Excess ADP Deferrals shall be made third and finally the
determination and any necessary adjustment related to the Combined ADP
and ACP Test shall be made.
- 60 -
<PAGE> 67
ARTICLE 16
TRUST FUND AND TRUSTEE
16.01 General Nature of Trustee's Responsibilities.
(a) To the extent acceptable to it, the Trustee shall receive such
sums of money or other property as shall from time to time be paid
or delivered by the Employer to hold for management and
distribution under the terms of the Plan. All such money and
property so held, together with all investments made therewith and
proceeds thereof, and such earnings, profits, increments, and
accruals thereon as may occur from time to time, less any payments
which the Trustee, from time to time, may be authorized to make
therefrom, shall constitute the Trust Fund.
(b) The Fund shall be held by the Trustee in trust and shall be
administered, controlled and invested in accordance with the Plan,
the Trust and investment objectives established by the Committee.
In the management of the Fund and the discharge of its duties
hereunder, the Trustee shall act solely in the interests of the
Participants, Former Participants and their Spouses or
Beneficiaries. The Trustee shall discharge its duties in
accordance with this Plan and Trust with the care, skill, prudence
and diligence under the circumstances then prevailing that a
prudent man acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like
character and with like aims. The Trustee's obligations relate
solely to the Trust Fund and it shall have no responsibility
whatsoever for the control, management, administration or revision
of the Plan itself or for procuring contributions required in the
Plan.
(c) Anything contained in this Plan and Trust to the contrary
notwithstanding, it shall be impermissible at any time prior to the
satisfaction of all liabilities with respect to Participants,
Former Participants and their Spouses, except for payments of
benefits under the terms of the Plan for any part of this Fund to
be used for or diverted to any purpose other than the exclusive
benefit of such Participants, Former Participants and their Spouses
or Beneficiaries, except for payments of expenses and charges
properly payable out of the Fund as set forth herein.
16.02 Investment Powers.
(a) Any investment determinations made by the Trustee shall be
made in conformity with the standard of fiduciary duty (especially
the prudent man rule) set forth in ERISA.
(b) The Trustee shall cause the investments of the Trust Fund to be
diversified to the extent necessary to minimize the risk of
large losses (unless such diversification would be imprudent).
- 61 -
<PAGE> 68
(c) In no event shall the Trustee maintain the indicia of ownership of
any assets of the Fund outside the jurisdiction of the United
States District Courts.
(d) The Trustee shall exercise its investment discretion so as to
provide sufficient cash assets as the Committee may suggest will
be necessary from time to time to meet the liquidity requirements
for the administration of the Plan.
(e) The foregoing paragraphs of this Section 16.02 are limitations on
the investment powers of the Trustee and (except as expressly
provided) take precedence over the powers set forth in this
paragraph (e). Except as specifically limited above, the Trustee
is authorized and empowered to retain, invest and reinvest any and
all of the trust funds as it shall deem to be in the best interests
of the Participants and there shall be no other additional
restrictions--whether by law or otherwise--on the investment powers
of the Trustee. Consequently the Trustee may invest the Fund in
property (or a part interest therein) which is real or personal,
tangible or intangible, wherever located, whether or not productive
of income or consisting of wasting assets, as the Trustee shall
deem best for the Participants, former Participants and their
spouses and Beneficiaries. Furthermore, the Trustee may, without
regard to any law now or hereafter in force limiting investments by
fiduciaries, invest in a range of investments which includes, inter
alia, real estate (whether income-producing or not); securities
issued by any Employer which has adopted the Plan or any other
corporation; speculative common stocks; any common trust fund or
mutual fund held or administered by the Trustee, any of its
subsidiaries, or any other corporation; any real estate investment
trust in which the Trustee or any other corporation may have any
interest whatsoever; low risk bonds; mortgages on real or personal
property wherever situated; equipment trust certificates; notes or
other evidence of indebtedness; shares of investment companies and
mutual funds; interests in partnerships and trusts; insurance
policies and contracts; option contracts such as those traded on an
option exchange; and any other property or joint or other part
interest in property (including without limitation, part interests
in bonds and mortgages or notes and mortgages), real or personal,
of any kind, class or character, which the Trustee may in its
discretion deem suitable for the Fund, and irrespective (except to
the extent specifically set forth above) of whether any Trustee,
individually or as Trustee, is acting as a participator of any part
interest in property that may be acquired.
(i) The Trustee is explicitly authorized and directed, in
accordance with the terms of the Plan, to acquire and hold
"qualifying employer securities" and "qualifying employer
real property", as those terms are defined in ERISA, to the
maximum of such amounts and percentages allowed by ERISA.
- 62 -
<PAGE> 69
(ii) The Trustee is explicitly authorized to invest all or part of
the Fund in deposits which bear a reasonable rate of interest
in any bank, or trust company or other financial institution,
(including the Trustee, if applicable).
(iii) The Trustee is explicitly authorized to engage in a
transaction with a common or collective trust fund or pooled
investment fund maintained now or created and maintained at a
future time by any bank or trust company (including the
Trustee, if applicable) supervised by a State or Federal
agency provided that such transaction is a sale or a purchase
of an interest in such common or collective trust and further
provided that such bank or trust company receives not more
than reasonable compensation. This general power is meant to
be broad enough to avoid specific identification of all such
funds in this document; and any officer of the Employer, is
authorized (A) to certify to bank examiners and other parties
which specific funds are included in this general power and
(B) to adopt any declarations or enter into any agreements
required so that the Trustee may make investments in such
funds.
16.03 Valuation. The fair market value of the Fund shall be determined by the
Trustee as of each Valuation Date and on such other dates as the Trustee
is directed by the Committee.
16.04 Other Powers. In the management, care and disposition of the Fund, the
Trustee, and its successors, may do all things and execute such
instruments as may be deemed necessary or proper in order to carry out the
provisions of the Plan and this Article, including the following powers
(in addition to the investment powers set forth above), all of which may
be exercised without order of or report to any court and without giving
bond:
(a) To sell, exchange, or otherwise dispose of any property at any time
held in the Fund at public or private sale, for cash or on terms
without advertisement; and no person dealing with the Trustee shall
be bound to see to the application of monies paid;
(b) To retain, manage, operate, repair and improve and to mortgage
and/or lease and/or grant options to sell (for any period
whatsoever) any real or personal property held by the Trustee;
(c) To compromise, compound, and settle any debt or obligation due to
or from it as Trustee hereunder and to reduce the rate of interest
on, to extend or otherwise modify, or to foreclose upon default or
otherwise enforce, and to abandon, if it shall deem it advisable,
any property, whether real or personal, which may at any time be
held by it, and in general to protect in every way the interest of
the Fund, either before or after default;
- 63 -
<PAGE> 70
(d) To vote in person or by proxy on any stocks or other securities
held by it, unless by law or regulatory authority the right to vote
be proscribed as to it but vested in Participants of the Fund, in
which latter event the vote shall be only by the Participants or
as directed by them;
(e) To join in, or to dissent from or oppose, the reorganization,
capitalization, consolidation, sale or merger of corporations or
properties in which the Trustee may be interested as Trustee, upon
such terms and conditions as it may deem wise, and to accept any
securities which may be issued upon any such reorganization,
recapitalization, consolidation, sale or merger and thereafter to
hold the same;
(f) To register any stocks, bonds, or other securities except
interests in real property, held in the Fund in its own name as
Trustee or in the name of a nominee and to hold any investment in
bearer form, or to combine certificates representing such
investments with certificates of the same issue held by the Trustee
in other fiduciary capacities, or to deposit or to arrange for the
deposit of such securities in a qualified central depository even
though, when so deposited such securities may be merged and held in
bulk in the name of the nominee of such depository with other
securities deposited therein by any other person, or to deposit or
to arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with a
federal reserve bank, provided that the books and records of the
Trustee shall at all times show that all such investments are part
of the Fund;
(g) To borrow or raise monies for purposes deemed appropriate
by the Trustee, including the making of distributions under the
Plan in such amount and upon such terms and conditions as in its
absolute discretion the Trustee may deem advisable; and for any
sums so borrowed to issue its promissory note as Trustee and to
secure the repayment thereof by pledging all or any part of the
Fund; and no person lending money to the Trustee shall be bound to
see to the application of the money loaned or to inquire into the
validity, expediency or propriety of any such borrowing;
(h) To employ agents from time to time, at the expense of the
Fund, and to delegate to them such ministerial and limited duties
as the Trustee sees fit;
(i) To consult with counsel, who may be counsel to the undersigned
Employer, actuaries and other professional advisors, and to act
upon the legal advice of such counsel;
(j) To make, execute, and acknowledge and deliver any and all deeds,
leases, assignments and instruments and to do all acts which they
may deem necessary or proper to carry out the investment
provisions of the Plan;
- 64 -
<PAGE> 71
(k) To make distributions wholly or partly in cash or in kind;
and
(l) To reserve from investment and keep unproductive of income
any amounts or part of the Fund as it may from time to time deem
advisable.
16.05 Prohibited Transaction. Anything in this Plan and Trust to the contrary
notwithstanding (and especially the powers granted to the Trustee herein),
the Trustee shall not be authorized to engage in any transaction which is
prohibited by Section Section 406 and/or 2003(a) of ERISA or Code Section
4975, unless the Trustee determines that such transaction is exempt under
the terms of ERISA and the Code therefrom.
16.06 Administration of the Plan; Payments of Benefits; Reliance on Committee.
The Committee shall have the exclusive authority and responsibility for
communicating to the Trustee any and all decisions and directions
concerning the administration of the Plan and the payment of benefits
thereunder (including payees, amounts, addresses, dates of payments,
etc.). In the event the Trustee shall deem it necessary to withhold any
payments or distributions pending compliance with legal requirements with
respect to probate of Wills, appointment of personal representative,
payment of or provision for estate or inheritance taxes, or for death
duties or otherwise, the Trustee shall notify the Committee and shall
thereafter take no action pending compliance, or pending receipt of the
Committee's instructions to distribute. Orders and directions from the
Committee need not specify the purpose of the payment so ordered, and the
Trustee shall not be responsible in any way respecting the purpose or
propriety of such payments or for the administration of the Plan and
Trust. The Trustee shall not be responsible in any respect for the
adequacy of the Fund to meet or discharge any payments or liabilities
under the Plan; and payments shall be limited to amounts available in the
Fund. Any order or direction from the Committee shall constitute a
certification to the Trustee that the action directed is one which is in
conformity with the provisions of the Plan and of ERISA. To the extent
permitted by law, the Trustee shall not be liable for any action taken
(especially any payment made from the Fund) at the direction of the
Committee or for any failure to act, if such action can under the terms of
the Plan and Trust be taken only after receipt from the Committee of
specific directions or for failure to act pending receipt of directions
from the Committee when direction is required or is requested in writing
by the Trustee.
16.07 Directing the Trustee.
(a) The Committee may from time to time direct the Trustee as to the
investment of all or part of the Trust Fund. The Committee may
also from time to time appoint an Investment Manager or Managers
for all, or any part, of the Trust Fund; provided that no
Investment Manager shall be appointed unless it qualifies as an
Investment Manager within the meaning of Section 3(38) of ERISA.
Any such Investment Manager shall be a named fiduciary of the Plan
and shall qualify by accepting its appointment as Investment
Manager in writing.
- 65 -
<PAGE> 72
(b) Upon the appointment and qualification of an Investment
Manager, the Investment Manager shall have, subject to any
guidelines issued by the Committee, exclusive power and authority
for the investment and reinvestment of the portion of the Trust
Fund designated by the Committee and shall have the power to direct
the acquisition and disposition of any and all assets and
investment of the Trust Fund. The Trustee shall be relieved from
any liability for the making, retention, or sale of any investment
by or at the direction of an Investment Manager appointed in the
manner herein set forth or by or at the direction of the Employer.
If the Committee and the Trustee consist of the same individuals,
nothing herein shall be construed to relieve the Committee of its
obligation to review the performance of the Investment Manager from
time to time.
16.08 Records and Reports.
(a) The Trustee shall keep accurate and detailed accounts of
all investments, receipts and disbursements, and other transactions
hereunder. Within ninety (90) days following the close of each
fiscal year, the Trustee shall file a written report with the
Employer or the Committee setting forth all investments, receipts
and disbursements, and other transactions effected by the Trustee
during such fiscal year. Upon the expiration of ninety (90) days
from the date of filing such annual or other account, the Trustee
shall be forever released and discharged from any liability or
accountability to the Employer as respects the propriety of its
acts or transactions shown in such accounts (other than liability
for acts of fraud or willful misconduct), except with respect to
any such acts or transactions as to which the Employer shall within
such ninety (90) day period file with the Trustee a written
statement claiming a breach of the Trustee's fiduciary duties or
failure to fulfill the Trustee's obligations under the Plan and
Trust. The Trustee shall never be required to file any inventory
or appraisals, or any annual or other returns to any court or to
post bond.
(b) The Trustee shall be entitled to have a judicial settlement
of any account for which it is responsible. In any such proceeding
or for any judicial instructions required in connection with the
Fund, the only necessary parties thereto in addition to the Trustee
will be the Employer and the Committee. However, the Trustee may
bring in other persons as a party or party defendant.
(c) Any party entitled to written notice or accounting may
waive such notice or accounting required under this Section. To
the extent the Trustee is also a member of the Committee, the
Employer and the Committee shall be deemed to waive the notice and
accounting requirements unless the Employer or Committee notifies
the Trustee, within the required notice period, that it intends to
enforce the writing and accounting requirement.
- 66 -
<PAGE> 73
16.09 Notification to Trustee.
(a) Any notice, direction, order, request, certification or
instruction of the Committee to the Trustee shall be in writing
signed by a member of the Committee or shall be presented at a
meeting with the Trustee. To the extent that the Trustee and the
Committee are the same individuals this requirement shall not be
applicable. Any action by the Employer pursuant to any of the
provisions of the Plan or of this Article 15 shall be authorized or
evidenced by a resolution of the Executive Committee or by an
officer of the Employer authorized by resolution of the Executive
Committee to take actions in connection with this Plan and Trust.
The Trustee and every other person shall be entitled to rely
conclusively upon any and all such notices, directions, orders,
requests, certifications and instructions received from the
Committee or from the Employer and reasonably believed to be
properly executed, and shall act and be fully protected in acting
in accordance therewith.
(b) The Trustee from time to time may request and be entitled
to certified copies of resolutions of the Employer, evidencing the
appointment and termination of office of any members of the
Committee and of successors to such members together with specimens
of their signatures, and the Trustee shall be entitled to rely
conclusively upon such resolutions and signatures as evidence of
the identity of the members of the Committee and shall not be
charged with notice of any change with respect thereto until the
Employer shall have furnished the Trustee with certified copies of
resolutions relative to such change.
16.10 Expenses.
(a) In General. All expenses of the Employer, the Committee, and the
Trust shall be paid from the Trust to the extent they constitute
reasonable expenses of administering the Plan; provided that, the
obligation of the Trust to pay such expenses shall cease to exist
to the extent such expenses are paid by the Employer. This
provision shall be deemed a part of any contract to provide for
expenses of plan administration, whether or not the signatory to
such contract is, as a matter of convenience, the Employer.
(b) Trust Expenses. The Trustee shall compute all expenses of the
Trust and submit a statement setting forth such expenses to the
Employer. The Employer or its designee shall have thirty (30) days
from the receipt of the statement to object to the inclusion or
computation of any item on such statement. At the conclusion of
the thirty (30) day period, the Trustee is authorized to pay
expenses shown on the statement from the Trust Fund unless the
Employer either objects to the statement or the Employer has
previously satisfied the liability by payment to the Trustee from
the Employer's corporate assets. If the Employer objects to only a
portion of the statement, the Trustee is authorized to pay
expenses from that portion of the statement for which no objection
was
- 67 -
<PAGE> 74
entered. To the extent an objection is entered, the Trustee and
Employer shall work together in an effort to resolve any dispute
as promptly as possible.
(c) Other Expenses. The Trustee shall pay out of the Trust Fund such
other expenses of administering the Plan, including but not limited
to, accounting, actuarial and legal expenses, as the Committee may
direct and as are permissible under the provisions of ERISA.
(d) Charge to Participant Accounts. To the extent expenses of
the Trustee relating to the acquisition and disposition of
investments of the Trust are paid out of the Trust Fund, such
expenses shall be a charge against and paid from the Plan
participant's account for which such acquisition or disposition
relates. All other expenses which are not directly attributable to
a participant's account shall be charged against the accounts of
participants in the manner provided by the Plan.
16.11 Trustee's Tenure and Succession.
(a) Any Trustee may be removed at any time upon sixty (60) days
notice in writing to the Trustee signed by an authorized member of
the Committee.
(b) Any Trustee may resign at any time upon sixty (60) days
notice in writing to an authorized officer of the Committee.
Within ninety (90) days after such removal or resignation of a
Trustee, the removed or resigning Trustee shall file with the
Employer or the Committee a written account setting forth all
investments, receipts and disbursements, and other transactions in
which such Trustee has participated since the end of the latest
fiscal year in which such an accounting was filed with the Employer
or Committee and containing an exact description of all securities
purchased and sold, the cost or net proceeds of sale, and showing
the securities and investments held at the date of such removal or
resignation and the cost of each item thereof as carried on the
books of the Trustee. Except with respect to any such acts or
transactions as to which the Employer or Committee shall within
such ninety (90) day period file with the Trustee a written
statement claiming a breach of fiduciary duty or failure to observe
the terms of this Article 15, upon the expiration of ninety (90)
days from the date of filing such report, the Trustee participating
in such accounting shall be forever released and discharged from
any liability or accountability to the Employer as respects the
propriety of the Trustee's acts or transactions shown in such
report (other than liability for acts of fraud or willful
misconduct) and the Employer shall thereafter reimburse, indemnify,
and hold harmless the Trustee of and from any and all costs,
claims, losses, demands, or liabilities in respect of its acts,
transactions, duties, obligations or responsibilities as Trustee
during the period covered by such account except those arising from
the Trustee's breach of its fiduciary responsibility under ERISA.
- 68 -
<PAGE> 75
(c) Any party entitled to written notice or accounting may waive
the written notice and accounting required under this Section. If
the removed or resigning Trustee was a member of the Committee at
the time of such removal or resignation, the Employer and the
Committee shall be deemed to waive the notice and accounting
requirements unless the Employer or Committee notifies the removed
or resigning Trustee, within the required notice period, that it
intends to enforce the notice and accounting requirements.
16.12 Successor Trustee. Upon the removal or resignation of a Trustee acting
under this Plan and Trust, a successor Trustee may be appointed as
provided herein. The Trustee who has resigned or has been removed shall
do anything required so that the successor Trustee shall be able to carry
out the rights, duties and obligations of the Trustee set forth herein.
A successor Trustee shall not be responsible for any act or omission of a
predecessor Trustee, and shall not be required to make any claim or
demand against a predecessor Trustee unless the Committee shall in
writing request the successor Trustee to participate in a claim against a
predecessor Trustee. A successor Trustee shall have and may exercise all
the rights, powers and duties given to an original Trustee named herein,
as such rights, powers and duties may be amended from time to time. Such
rights, powers and duties attach to the office of Trustee and are not
personal to any specific Trustee which may be serving as Trustee under
this Plan and Trust at any given time.
16.13 Bond and Security. The Trustee shall not be required to give any bond
or any other security for the faithful performance of the Trustee's duties
under this Plan and Trust, except such as may be required by any law which
prohibits the waiver thereof.
16.14 Commingling. If the Committee consents or directs, the Fund which is
held by the Trustee may be commingled with the trust assets of any
Affiliate which adopts this Plan and Trust. No individual Employer shall
at any time own any specific assets in such commingled Fund, its interest
being an undivided interest of its pro rata portion of the entire Fund.
- 69 -
<PAGE> 76
ARTICLE 17
MISCELLANEOUS
17.01 Headings. The headings and sub-headings in this Plan have been inserted
for convenience of reference only and are to be ignored in any
construction of the provisions hereof.
17.02 Action by Employer. Any action by an Employer under this Plan shall be
by resolution of its Executive Committee of Directors, or by any person or
persons duly authorized by resolution of the Board to take such action.
17.03 Spendthrift Clause. Except as otherwise required by a "qualified
domestic relations order" as defined in Code Section 414(p), none of the
benefits, payments, proceeds or distributions under this Plan shall be
subject to the claim of any creditor of any Participant or Beneficiary, or
to any legal process by any creditor of such Participant or Beneficiary,
and none of them shall have any right to alienate, commute, anticipate or
assign any of the benefits, payments, proceeds or distributions under this
Plan except for the extent expressly provided herein to the contrary.
17.04 Discrimination. The Employer, the Committee, the Trustee and all other
persons involved in the administration and operation of the Plan shall
administer and operate the Plan and Trust in a uniform and consistent
manner with respect to all Participants similarly situated and shall not
permit discrimination in favor of Highly Compensated Employees.
17.05 Release. Any payment to a Participant or Beneficiary, or to their legal
representatives, in accordance with the provisions of this Plan, shall to
the extent thereof be in full satisfaction of all claims hereunder against
the Trustee, Plan Administrator, Committee and the Employer, any of whom
may require such Participant, Beneficiary, or legal representative, as a
condition precedent to such payment, to execute a receipt and release
therefor in such form as shall be determined by the Trustee, the
Committee, or the Employer, as the case may be.
17.06 Compliance with Applicable Laws. The Company, through the Plan
Administrator, shall interpret and administer the Plan in such manner that
the Plan and Trust shall remain in compliance with the Code, with ERISA,
and all other applicable laws, regulations, and rulings.
17.07 Merger. In the event of any merger or consolidation of the Plan with
any other Plan, or the transfer of assets or liabilities by the Plan to
another Plan, each Participant must receive (assuming that the Plan would
terminate) the benefit immediately after the merger, consolidation, or
transfer which is equal to or greater than the benefit such Participant
would have been entitled to receive immediately before the merger,
- 70 -
<PAGE> 77
consolidation, or transfer (assuming that the Plan had then terminated),
provided such merger, consolidation, or transfer took place after the
date of enactment of ERISA.
17.08 Governing Law. The Plan shall be governed by the laws of the State of
Georgia to the extent that such laws are not preempted by federal law.
17.09 Legally Incompetent. If any Participant, former Employee or Beneficiary
is a minor or, in the judgment of the Committee is otherwise legally
incapable of personally receiving and giving a valid receipt for any
payment due him hereunder, the Committee may, unless and until a claim
shall have been made by a duly appointed guardian or committee of such
person, direct that such payment or any part thereof be made to such
person's spouse, child, parent, brother, sister, or such other person
deemed by the Committee to have incurred expense for or assumed
responsibility for the expense of such person. Such payment shall fully
discharge the Trustee, Employer, Committee and Plan Administrator from
further liability on account thereof.
17.10 Location of Participant or Beneficiary Unknown. In the event that all
or any portion of the distribution payable to a Participant or his
Beneficiary shall remain unpaid solely by reason of the Committee's
inability to ascertain the whereabouts of such Participant or Beneficiary,
the amount unpaid shall be forfeited. However, such forfeiture shall not
occur until five (5) years after the amount first became payable. The
Committee shall make a diligent effort to locate the Participant or
Beneficiary including the mailing of a registered letter, return receipt
requested, to the last known address of such Participant or Beneficiary.
In the event a Participant or Beneficiary is located subsequent to his
benefit being forfeited, such benefit shall be restored and distributed.
17.1 Distributions Upon Special Occurrences.
(a) Subject to Section 11.03, Pre-Tax Contributions and any income
attributable thereto, shall be distributed to Participants or their
Beneficiaries as soon as administratively feasible after the
termination of the Plan, provided that neither the Employer nor its
Affiliates maintain a successor plan.
(b) Pre-Tax Contributions and any income attributable thereto
shall be distributed to Participants as soon as administratively
feasible after the sale, to an entity that is not an Affiliate, of
substantially all of the assets used by the Employer in the trade
or business in which the Participant is employed.
(c) After the sale of an incorporated Affiliate's interest in a
subsidiary to an entity that is not an Affiliate, Pre-Tax
Contributions and any income attributable thereto of a Participant
who continues to work for such subsidiary shall be distributed as
soon as administratively feasible.
(d) The provisions of this Section 17.13 including the definitions of
terms such as "successor plan" and "substantially all of the
assets" shall be governed by
- 71 -
<PAGE> 78
Treasury Regulation Section 1.401(k)-1(d)(1)(iii) or any
successor Treasury Regulation thereto.
- 72 -
<PAGE> 79
IN WITNESS WHEREOF, the Company has caused this Plan to be duly executed
and adopted on behalf of the Company effective as of April 3, 1996.
COMPANY:
FUQUA ENTERPRISES, INC.
By: L. P. Klamon
-------------------------------
Title: President
----------------------------
Date: 4-3-96
-----------------------------
TRUSTEE:
SUNTRUST BANK, ATLANTA
By: Patrick Paparelli
-------------------------------
Title: Group Vice President
----------------------------
Date: 4-4-96
-----------------------------
- 73 -
<PAGE> 80
SCHEDULE A
PAST SERVICE CREDITS
On April 3, 1996, Fuqua Enterprises, Inc. acquired all of the assets of the
Lumex Division of Lumex, Inc. To the extent permitted by Treasury Regulations,
former employees of such Lumex Division who commenced Employment with an
Employer during 1996 shall be given Years of Eligibility Service and Years of
Vesting Service under this Plan for their prior period of employment with
Lumex, Inc.
<PAGE> 1
EXHIBIT 10(b)
FUQUA ENTERPRISES, INC.
SAVINGS AND RETIREMENT PLAN AND TRUST
FOR UNION EMPLOYEES
(Effective as of April 3, 1996)
<PAGE> 2
TABLE OF CONTENTS
ARTICLE 1 INTRODUCTION .............................. 1
1.01 In General ................................. 1
1.02 Purpose .................................... 1
ARTICLE 2 DEFINITIONS ............................... 2
Account .......................................... 2
Adjustment ....................................... 2
Affiliate ........................................ 2
Authorized Leave of Absence ...................... 2
Beneficiary ...................................... 2
Board ............................................ 3
Break in Service ................................. 3
Code ............................................. 3
Committee ........................................ 3
Company .......................................... 3
Compensation ..................................... 3
Distribution ..................................... 4
Earnings ......................................... 4
Effective Date ................................... 4
Eligible Employee ................................ 4
Employee ......................................... 4
Employer ......................................... 4
Employer Contribution ............................ 4
Employer Contribution Account .................... 4
Employer Matching Contributions .................. 5
Employer Retirement Contribution ................. 5
Entry Date ....................................... 5
ERISA ............................................ 5
Executive Committee .............................. 5
Fiduciary ........................................ 5
Forfeiture ....................................... 5
Former Participant ............................... 5
Hour of Service .................................. 5
Investment Fund .................................. 6
Normal Retirement Age ............................ 6
Normal Retirement Date ........................... 6
One-Year Break in Service ........................ 6
Participant ...................................... 6
Permanent Disability ............................. 7
<PAGE> 3
Plan ............................................. 7
Plan Administrator or Administrator .............. 7
Plan Year ........................................ 7
Pre-Tax Contribution ............................. 7
Pre-Tax Contribution Account ..................... 7
Qualified ........................................ 7
Qualified Nonelective Contribution Account ....... 7
Qualified Nonelective Contribution ............... 7
Retirement ....................................... 7
Rollover Account ................................. 7
Rollover Contribution ............................ 7
Spouse ........................................... 7
Termination of Employment ........................ 8
Trust or Trust Agreement ......................... 8
Trust Fund or Fund ............................... 8
Trustee .......................................... 8
Valuation Date ................................... 8
Year of Eligibility Service ...................... 8
Year of Vesting Service .......................... 8
Defined Terms .................................... 8
ARTICLE 3 PARTICIPATION ............................. 9
3.01 Participation .............................. 9
3.02 Year of Eligibility Service ................ 9
3.03 Participation and Rehire ................... 9
3.04 Not Contract for Employment ................ 10
3.05 Acquisitions; Predecessor Employers ........ 10
ARTICLE 4 PRE-TAX CONTRIBUTIONS; ROLLOVERS .......... 11
4.01 Pre-Tax Contributions ...................... 11
4.02 Elections Regarding Pre-Tax Contributions .. 11
4.03 Change in Employee Contribution Percentage or
Suspension of Contributions 11
4.04 Deadline for Contributions and Allocation of
Pre-Tax Contributions....................... 12
4.05 Rollover Contribution ...................... 12
4.06 No After-Tax Employee Contributions ........ 13
ARTICLE 5 EMPLOYER CONTRIBUTIONS .................... 14
5.01 Employer Matching Contribution ............. 14
- ii -
<PAGE> 4
5.02 Employer Retirement Contributions .................. 14
5.03 Qualified Nonelective Contributions ................ 14
5.04 Form and Timing of Contributions ................... 15
5.05 Forfeitures ........................................ 15
ARTICLE 6 ACCOUNTS AND ALLOCATIONS ............................ 16
6.01 Participant Accounts ............................... 16
6.02 Valuation .......................................... 17
6.03 Investment Funds and Elections ..................... 17
6.04 Errors ............................................. 18
6.05 Valuation for Purposes of Distributions ............ 18
ARTICLE 7 VESTING AND BENEFITS ................................. 19
7.01 Normal Retirement .................................. 19
7.02 Permanent Disability ............................... 19
7.03 Death .............................................. 19
7.04 Other Termination of Employment .................... 19
7.05 Year of Vesting Service ............................ 20
7.06 Forfeitures ........................................ 20
ARTICLE 8 DISTRIBUTIONS ....................................... 22
8.01 Methods of Distributions ........................... 22
8.02 Commencement of Distribution ....................... 22
8.03 Special Distribution Rules ......................... 23
8.04 Application for Benefits ........................... 23
8.05 Direct Rollovers ................................... 23
ARTICLE 9 IN-SERVICE WITHDRAWALS; LOANS ....................... 25
9.01 Hardship Withdrawal of Account ..................... 25
9.02 Other In-Service Distributions ..................... 26
9.03 Loans .............................................. 26
9.04 Valuation for Purposes of Loans and Withdrawals .... 29
ARTICLE 10 ADMINISTRATION OF THE PLAN ......................... 30
10.01 Named Fiduciaries ................................. 30
10.02 Board of Directors ................................ 30
10.03 Executive Committee ............................... 30
10.04 Trustee ........................................... 30
10.05 Committee ......................................... 30
10.06 Standard of Fiduciary Duty ........................ 32
- iii -
<PAGE> 5
10.07 Claims Procedure .................................. 33
10.08 Indemnification of Committee ...................... 34
ARTICLE 11 AMENDMENT AND TERMINATION .......................... 35
11.01 Right to Amend .................................... 35
11.02 Termination and Discontinuance of Contributions ... 35
11.03 IRS Approval of Termination ....................... 35
ARTICLE 12 MAXIMUM BENEFITS ................................... 36
12.01 General Rule ...................................... 36
12.02 Combined Plan Limitation .......................... 37
13.02 Definitions ....................................... 37
ARTICLE 13 SPECIAL DISCRIMINATION RULES ....................... 40
13.01 Definitions ....................................... 40
13.02 Limit on Pre-Tax Contributions .................... 43
13.03 Average Actual Deferral Percentage ................ 45
13.04 Special Rules For Determining Average Actual
Deferral Percentage ............................... 46
13.05 Distribution of Excess ADP Deferrals .............. 47
13.06 Average Actual Contribution Percentage ............ 48
13.07 Special Rules For Determining Average Actual
Contribution Percentages .......................... 49
13.08 Distribution of Employer Matching Contributions ... 49
13.09 Combined ACP and ADP Test ......................... 50
13.10 Order of Applying Certain Sections of Article ..... 52
ARTICLE 14 TRUST FUND AND TRUSTEE ............................. 53
14.01 General Nature of Trustee's Responsibilities ...... 53
14.02 Investment Powers ................................. 53
14.03 Valuation ......................................... 55
14.04 Other Powers ...................................... 55
14.05 Prohibited Transaction ............................ 57
14.06 Administration of the Plan, Payments of
Benefits, Reliance on Committee ................... 57
14.07 Directing the Trustee ............................. 57
14.08 Records and Reports ............................... 58
14.09 Notification to Trustee ........................... 59
14.10 Expenses .......................................... 59
14.11 Trustee's Tenure and Succession ................... 60
- iv -
<PAGE> 6
14.12 Successor Trustee ................................ 61
14.13 Bond and Security ................................ 61
14.14 Commingling ...................................... 61
ARTICLE 15 MISCELLANEOUS ..................................... 62
15.01 Headings ......................................... 62
15.02 Action by Employer ............................... 62
15.03 Spendthrift Clause ............................... 62
15.04 Discrimination ................................... 62
15.05 Release .......................................... 62
15.06 Compliance with Applicable Laws .................. 62
15.07 Merger ........................................... 62
15.08 Governing Law .................................... 63
15.09 Legally Incompetent .............................. 63
15.10 Location of Participant or Beneficiary Unknown ... 63
15.11 Distributions Upon Special Occurrences ........... 63
- v -
<PAGE> 7
FUQUA ENTERPRISES, INC
SAVINGS AND RETIREMENT PLAN AND TRUST
FOR UNION EMPLOYEES
(Effective as of April 3, 1996)
ARTICLE 1
INTRODUCTION
1.01 In General. The Board of Directors of Fuqua Enterprises, Inc. hereby
establishes the Fuqua Enterprises, Inc. Savings and Retirement Plan for
Union Employees effective as of April 3, 1996. The Plan is intended to
comply with the qualification requirements of Section 401(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), and the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
1.02 Purpose. The purpose of the Plan and the Trust Agreement is to provide
the benefits of a qualified retirement plan for the exclusive benefit of
the Participants and their Beneficiaries. This Plan shall be administered
and interpreted in accordance with such purpose.
<PAGE> 8
ARTICLE 2
DEFINITIONS
Certain terms of this Plan have defined meanings which are set forth in this
Article 2 and which shall govern unless the context in which they are used
clearly indicates that some other meaning is intended.
Account shall mean the account established and maintained by the Committee for
each Participant or Beneficiary to which shall be allocated each Participant's
interest in the Fund. Each Account shall be comprised of the sub-accounts
described in Section 6.01.
Adjustment shall mean, for any Valuation Date, the aggregate earnings, realized
or unrealized appreciation, losses, expenses, and realized or unrealized
depreciation of the Fund since the immediately preceding Valuation Date. For
purposes of such Adjustment, all assets of the Trust Fund shall be valued at
their fair market value as of each Valuation Date. The determination of the
valuation of assets and the adjustment shall be made by the Trustee and shall
be final and binding.
Affiliate shall mean any corporation which is a member of a controlled group of
corporations (as defined in Code Section 414(b)) of which the Employer is a
member; any trade or business which is under common control (as defined in Code
Section 414(c)) with the Employer; any organization which is a member of an
affiliated service group (as defined in Code Section 414(m)) which includes the
Employer; and any other entity required to be aggregated with the Employer
pursuant to regulations under Code Section 414(o).
Authorized Leave of Absence shall mean any temporary layoff or any absence
authorized by the Employer under the Employer's standard personnel practices
provided that all persons under similar circumstances must be treated alike in
the granting of such Authorized Leaves of Absence and provided further that the
Participant returns within the period of authorized absence. An absence due to
service in the Armed Forces of the United States shall be considered an
Authorized Leave of Absence to the extent required by federal law.
Beneficiary
(a) Unmarried Participants. For unmarried Participants, any individual(s),
trust(s), estate(s), partnership(s), corporation(s) or other entity or
entities designated by the Participant in accordance with procedures
established by the Committee to receive any distribution to which the
Participant is entitled under the Plan in the event of the Participant's
death. The Committee may require certification of the Participant's
marital status in any form it deems appropriate prior to accepting or
honoring any Beneficiary designation. Any Beneficiary designation shall
be void if the Participant revokes the designation or marries. Any
Beneficiary designation shall be void to the extent it conflicts with the
terms of a "qualified domestic relations order," as defined in Code
Section 414(p).
- 2 -
<PAGE> 9
If an unmarried Participant fails to designate a Beneficiary or if the
designated Beneficiary fails to survive the Participant and the
Participant has not designated a contingent Beneficiary, the Beneficiary
shall be the Participant's estate.
(b) Married Participant. A married Participant's Beneficiary shall be his
Spouse at the time of his death unless the Participant has designated a
non-spouse Beneficiary (or Beneficiaries) with the written consent of his
Spouse given in the presence of a Notary Public on a form provided by the
Committee, or unless the terms of a qualified domestic relations order
require payment to a non-spouse Beneficiary. A married Participant's
designation of a non-spouse Beneficiary in accordance with the preceding
sentence shall remain valid until revoked by the Participant or until the
Participant marries a Spouse who has not consented to a designation in
accordance with the preceding sentence.
For the purposes of this Section, revocation of prior Beneficiary
designations will occur when a Participant (i) files a subsequent valid
designation with the Committee; or (ii) files a signed statement with the
Committee evidencing his intent to revoke any prior designations. Any
revocation of a Beneficiary designation shall be void to the extent it
conflicts with the terms of a "qualified domestic relations order," as
defined in Code Section 414(p).
Board shall mean the Board of Directors of the Company.
Break in Service shall mean five consecutive One-Year Breaks in Service.
Code shall mean the Internal Revenue Code of 1986, as now in effect or as
amended from time to time. A reference to a specific provision of the Code
shall include such provision and any applicable regulation pertaining thereto.
Committee shall mean the Committee appointed by the Executive Committee under
Article 10 to administer the Plan.
Company shall mean Fuqua Enterprises, Inc. and its successors and assigns which
adopt this Plan.
Compensation
(a) Except as provided below, Compensation shall mean the gross annual
earnings reported on a Participant's Form W-2 (Box 1 - Wages, Tips and
Compensation, or its comparable location as provided on Form W-2 in future
years) as required by Code Section Section 6041(d) and 6051(a)(3),
including overtime, bonuses and commissions). In addition, Compensation
shall include Pre-Tax Contributions under this Plan and salary reduction
pre-tax contributions to a Section 125 Plan maintained by the Employer.
Compensation shall be determined by ignoring any income exclusions under
Code Section 3401(a) based on the nature or location of employment. In
addition, Compensation shall be determined by ignoring reimbursements or
other expense allowances, fringe benefits (cash and non-cash), moving
- 3 -
<PAGE> 10
expenses, deferred compensation (and for this purpose benefits under a
stock option plan is "deferred compensation") and welfare benefits (and
for this purpose, worker's compensation payments of any type and severance
pay of any type shall be considered "welfare benefits," but sick pay,
short term disability and vacation pay are not considered "welfare
benefits").
(b) The annual Compensation of each employee taken into account under the
Plan shall not exceed $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 12 months, over which
compensation is determined (determination period) beginning in such
calendar year.
(c) Compensation shall not include amounts earned prior to the date an
Eligible Employee becomes a Participant in the Plan.
Distribution shall mean payment by the Trustee to or for the benefit of a
Participant or Former Participant, Spouse, Beneficiary or other person entitled
to benefits as provided in the Plan.
Earnings shall have that meaning as defined in Section 4.01.
Effective Date shall mean April 3, 1996.
Eligible Employee shall mean Employees who are members of the Local 422-S,
Production Service and Sales District Council, IUC, AFL-CIO union, except any
Employee who is a nonresident alien and who does not receive earned income from
the Employer which constitutes income from sources within the United States, or
who is a "leased employee," within the meaning of Code Section 414(n)(2), with
respect to the Employer.
Employee shall mean any person employed by or on Authorized Leave of Absence
from the Employer and any person who is a "leased employee" within the meaning
of Code Section 414(n)(2) with respect to the Employer. However, if such
"leased employees" constitute less than 20 percent of the Employer's combined
non-highly compensated work force, within the meaning of Code Section
414(n)(1)(C)(ii), the term "Employee" shall not include "leased employees"
covered by a plan described in Code Section 414(n)(5).
Employer shall mean the Company or any Affiliate whose Eligible Employees
benefit under the Plan.
Employer Contribution shall mean Matching Contributions, Retirement
Contributions and/or Qualified Nonelective Contributions.
Employer Contribution Account shall mean the portion of a Participant's Account
attributable to Employer Contributions and the total of the Adjustments
attributable to such Employer Contributions.
- 4 -
<PAGE> 11
Employer Matching Contributions. See Section 5.01.
Employer Retirement Contribution See Section 5.02.
Entry Date. January 1, April 1, July 1 and October 1 of each Plan Year.
ERISA shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time. Reference to a specific provision of ERISA shall
include such provision and any applicable regulation pertaining thereto.
Executive Committee shall mean the Executive Committee of the Board.
Fiduciary shall mean any party named as a Fiduciary in Article 10 of the Plan.
Any party shall be considered a Fiduciary of the Plan only to the extent of the
powers and duties specifically allocated to such party under the Plan.
Forfeiture. See Section 7.06.
Former Participant. See Section 3.03.
Highly Compensated Employee shall mean an Employee who during the Plan Year was
at any time a 5% owner, or received Compensation in excess of $75,000, or
received Compensation in excess of $50,000 and was in the top-paid group of
employees for such year, or was at any time an officer and received
Compensation greater than 50% of the amount in effect under Code Section
415(b)(1)(A) for such year, all as described in Code Section 414(q).
Hour of Service shall mean:
(a) Each hour for which an Employee is paid, or entitled to payment, for
performance of duties for an Employer.
(b) Each hour for which an Employee is paid, or entitled to payment, by an
Employer, on account of a period of time during which no duties are
performed (irrespective of whether the employment relationship is
terminated) due to vacation, holiday, illness, incapacity, layoff, jury
duty, military duty, or leave of absence; provided that in no event, shall
an Employee receive credit for more than 501 Hours of Service for any
single continuous period of non-working time.
(c) Each hour for which an Employee is absent from work by reason of: (i)
the pregnancy of the Employee, (ii) birth of a child of the Employee,
(iii) placement of a child with the Employee in connection with the
adoption of the child by the Employee, or (iv) caring for a child referred
to in paragraphs (i) through (iii) immediately following birth or
placement. Hours credited under this paragraph shall be credited at the
rate of 8 hours per day, but shall not, in the aggregate, exceed the number
of hours required to prevent the Employee from incurring a One-Year Break
in Service (a maximum of 501 hours) during the first
- 5 -
<PAGE> 12
computation period in which a One-Year Break in Service would otherwise
occur, provided, however, that this rule shall apply only during the Plan
Year in which the absence from work begins and the immediately following
Plan Year.
(d) Each hour for which back pay, irrespective of mitigation of damages, is
either awarded or agreed to by an Employer. These hours shall be credited
to the Employee for the computation period or period to which the award or
agreement pertains, rather than the computation period in which the award,
agreement, or payment is made.
(e) In lieu of the foregoing, an Employee who is not compensated on an hourly
basis (such as salary, commission or piecework employees) shall be
credited with 45 Hours of Service for each week in which such Employee
would be credited with Hours of Service in hourly pay. However, this
method of computing Hours of Service may not be used for any Employee
whose Hours of Service is required to be counted and recorded by any
Federal law, such as the Fair Labor Standards Act. Any such method must
yield an equivalency of at least 1,000 hours per computation period.
(f) The following rules shall apply in determining whether an Employee
completes an "Hour of Service:"
1. The same hours shall not be credited under paragraphs (a),
(b) or (c) above, as the case may be, and paragraph (d) above, nor
shall the same hours credited under paragraphs (a) through (d) above
be credited under paragraph (e) above.
2. The rules relating to determining hours of service for
reasons other than the performance of duties and for crediting hours
of service to particular periods of employment shall be those rules
stated in Department of Labor regulations Title 29, Chapter XXV,
subchapter C, part 2530, Sections 200b2(b) and 200b2(c),
respectively.
Investment Fund shall mean the separate funds under the Trust Fund which are
distinguished by their investment objectives.
Normal Retirement Age shall mean the date a Participant attains age 65.
Normal Retirement Date shall mean the last day of the month coinciding with or
next following the date the Participant attains Normal Retirement Age.
One-Year Break in Service shall mean any Plan Year during which the Participant
earns 500 or fewer Hours of Service. A One-Year Break in Service shall not
occur during any Plan Year in which the Employee is on an Authorized Leave of
Absence, but only if the Employee returns to active Employment at the
termination of such Authorized Leave of Absence.
Participant shall mean an Employee who becomes eligible to participate in the
Plan as provided in Article 3.
- 6 -
<PAGE> 13
Permanent Disability shall mean a physical or mental impairment which in the
opinion of the Plan Administrator is of such permanence and such degree that a
Participant is unable because of such impairment to perform any gainful
activity for which he is suited by virtue of his experience, training or
education. A determination of total and permanent disability by the Social
Security Administration of the United States shall be binding on the Plan
Administrator.
Plan shall mean the Fuqua Enterprises, Inc. Savings and Retirement Plan as set
forth in this document together with any subsequent amendments hereto.
Plan Administrator or Administrator, within the meaning of Section 3(16) of
ERISA, shall mean the Committee.
Plan Year shall mean the calendar year.
Pre-Tax Contribution shall mean contributions made to the Plan during the Plan
Year by the Employer, at the election of the Participant, in lieu of cash
compensation and that are made pursuant to a salary reduction agreement. Such
contributions are nonforfeitable when made.
Pre-Tax Contribution Account shall mean the portion of a Participant's Account
attributable to Pre-Tax Contributions, and the total of the Adjustments which
have been credited to or deducted from a Participant's Account with respect to
such Pre-Tax Contributions.
Qualified, as used in "qualified plan" or "qualified trust", shall mean a plan
and trust which are entitled to the tax benefits provided respectively under
Code Section Section 401 and 501, and related provisions.
Qualified Nonelective Contribution Account shall mean the portion of a
Participant's Account attributable to Qualified Nonelective Contributions, and
the total of the Adjustments which have been credited to or deducted from a
Participant's Account with respect to Qualified Nonelective Contributions.
Qualified Nonelective Contribution. See Section 5.03.
Retirement shall mean a Participant's Termination of Employment on or after the
Participant's Normal Retirement Age.
Rollover Account shall mean the portion of a Participant's Account attributable
to Rollover Contributions or the total of the Adjustments attributable to such
Rollover Contributions.
Rollover Contribution. See Section 4.05.
Spouse shall mean the person who was married to the Participant (in a civil or
religious ceremony recognized under the laws of the state where the marriage was
contracted) immediately prior to the date on which payments Participant from the
Plan begin and for a period of at least one
- 7 -
<PAGE> 14
year prior to the Participant's death. If the Participant dies prior to the
commencement of benefits, Spouse shall mean a person who is married to a
Participant (as defined in the immediately preceding sentence) on the date of
the Participant's death. A Participant shall not be considered married to
another person as a result of any common law marriage whether or not such common
law marriage is recognized by applicable state law.
Termination of Employment shall mean that an Employee has ceased to be employed
by the Employer for any of the following reasons:
(a) Voluntary resignation from the service of the Employer,
(b) Discharge from the service of the Employer by the Employer,
(c) Retirement,
(d) Death, or
(e) Permanent Disability.
Notwithstanding the foregoing, an Employee who ceases to be actively employed
by reason of an Authorized Leave of Absence shall not be considered as having a
Termination of Employment.
Trust or Trust Agreement. See Article 14.
Trust Fund or Fund shall mean the cash and other properties held and
administered by the Trustee in accordance with the Plan and the Trust Agreement
in accordance with Article 14.
Trustee shall mean the persons, corporation, association or a combination of
them acting as Trustee under the Trust Agreement.
Valuation Date shall mean each business day of the Plan Year for which plan
assets are traded on a national exchange or such other day as selected by the
Committee.
Year of Eligibility Service. See Section 3.02.
Year of Vesting Service. See Section 7.05.
Defined Terms. A defined term will normally govern the definitions of
derivatives therefrom even though such derivatives are not specifically defined
and even if they are or are not initially capitalized. The masculine gender,
where appearing in the Plan, shall be deemed to include the feminine gender,
unless the context clearly indicates the contrary. Singular and plural nouns
and pronouns shall be interchangeable as the factual context may allow or
require. The words "hereof", "herein", "hereunder" and other similar compounds
of the word "here" shall mean and refer to the entire Plan and not to any
particular provision or Section.
- 8 -
<PAGE> 15
ARTICLE 3
PARTICIPATION
3.01 Participation.
(a) General. An Eligible Employee shall become a Participant in
the Plan on the Entry Date coinciding with or next following the
date on which the Eligible Employee has both (i) attained age 21 and
(ii) completes one Year of Eligibility Service.
(b) Enrollment in Plan. An Eligible Employee who becomes
eligible to participate in this Plan will be asked to follow certain
procedures to enroll in the Plan, and pursuant to which he will
designate Beneficiaries. However, an Eligible Employee's
participation in the Plan shall not be contingent upon completion of
such enrollment process.
3.02 Year of Eligibility Service. A Year of Eligibility Service is determined
under the 1,000 Hours of Service method. Accordingly, an Employee shall
receive one Year of Eligibility Service upon completing a 12 consecutive
month period of Employment during which the Employee earns at least 1,000
Hours of Service. The initial twelve month period shall be the 12
consecutive month period commencing on the Employee's date of hire or
rehire. If the Employee fails to complete 1,000 Hours of Service during
this 12-month period, the Employee shall receive a Year of Eligibility
Service upon completing at least 1,000 Hours of Service during a Plan Year
(commencing with the Plan Year during which the Employee's first
anniversary of his date of hire occurs).
3.03 Participation and Rehire.
(a) Status as a Participant. A Participant's participation in
the Plan shall continue until the Participant's Termination of
Employment. On or after his Termination of Employment, the Employee
shall be known as a "Former Participant" and his benefits shall
thereafter be governed by the provisions of Article 8. The
individual's status as a Former Participant shall cease as of the
date the individual ceases to have any balance in his Account. If a
Participant ceases to be an Eligible Employee but does not have a
Termination of Employment, then such person shall continue to be
known as a "Participant," but shall not be eligible to receive
Employer Contributions.
(b) Rehire of Person who was a Participant in this Plan. An
Eligible Employee who was a Participant in this Plan at the time of
his Termination of Employment and who is subsequently rehired by an
Employer, shall be eligible to participate in this Plan on the Entry
Date coinciding with or immediately following the later of (i) the
Employee's date of rehire or (ii) the date the Employee again becomes
an Eligible Employee.
- 9 -
<PAGE> 16
(c) Rehire of Person who Was Not a Participant in this Plan. If
a former Eligible Employee is no longer employed or is no longer an
Eligible Employee on the earliest Entry Date on or after which such
Employee would have satisfied the requirements described in Section
3.01(a) above, such Employee shall commence participation in the
Plan on the first Entry Date coincident with or immediately
following the date such Employee is rehired or again becomes an
Eligible Employee, as applicable, provided that such Employee has
not incurred a Break in Service. However, if such Employee has
incurred a Break in Service, then such Employee must again satisfy
the requirements of Section 3.01(a) in order to participate in the
Plan.
3.04 Not Contract for Employment. Participation in the Plan shall not give
any Employee the right to be retained in the Employer's employ, nor shall
any Employee, upon dismissal from or voluntary termination of his
employment, have any right or interest in the Fund, except as herein
provided.
3.05 Acquisitions; Predecessor Employers. If a group of persons becomes
employed by an Employer (or any of its subsidiaries or divisions) as a
result of an acquisition of another employer, the Committee shall
determine whether and to what extent employment with such prior employer
shall be treated as eligibility service for purposes of Section 3.01, the
applicable Entry Date (or special entry date) for such acquired employees,
and any other terms and conditions which apply to eligibility to
participate in this Plan. Such terms and conditions shall be set forth in
a schedule to this Plan by action of the Committee. In addition, the
Committee may provide for past service credit to other Employees to the
extent permitted by Treasury Regulations, as set forth in Schedule A to
this Plan. Except to the extent required by law, employees of an acquired
business which is not identified in a schedule to this Plan shall be
treated as having first accrued an Hour of Service as of the date of the
Employer's acquisition of such business.
- 10 -
<PAGE> 17
ARTICLE 4
PRE-TAX CONTRIBUTIONS; ROLLOVERS
4.01 Pre-Tax Contributions.
(a) Effective January 1, 1997, a Participant may (except during
periods of suspension as set forth in Section 4.03(b)) elect to make
Pre-Tax Contributions to the Plan by means of payroll deduction. A
Participant may contribute as a Pre-Tax Contribution any whole
percentage from 1% to 14% of his Earnings during any Plan Year. For
this purpose, "Earnings" means Compensation, as defined in paragraph
(a) of the definition set forth in Article 2, but disregarding
paragraphs (b) and (c) of such definition.
(b) The Committee may establish guidelines and rules in order to
effectuate the provisions of this Section.
4.02 Elections Regarding Pre-Tax Contributions.
(a) Procedure for Making Elections. Elections by a Participant
to make Pre-Tax Contributions to the Plan shall be made in writing
on a form prescribed by the Committee (or in any other manner
approved by the Committee) and by designating the percentage of
Earnings that will be contributed as a Pre-Tax Contribution during
each pay period. The election to make Pre-Tax Contributions shall
be effective as soon as is administratively feasible after such
election is communicated to the Committee.
(b) Treatment as 401(k) Contributions. It is expressly intended
that, to the extent allowable by law, Pre-Tax Contributions shall
not be included in the gross income of the Participant for income
tax purposes and shall be deemed contributions under a cash or
deferred arrangement pursuant to Code Section 401(k).
(c) Additional Limitations of Pre-Tax Contributions. Pre-Tax
Contributions shall be subject to the limitations described in
Section 13.02 (maximum dollar contribution limit), Section 13.03
(ADP non-discrimination test) and Article 12 (Code Section 415
limit).
4.03 Change in Employee Contribution Percentage or Suspension of Contributions.
(a) Change of Contribution Percentage. A Participant may
increase or decrease the percentage of his Earnings contributed as a
Pre-Tax Contribution at any time by delivery of written notice to
the Committee (or in any other manner approved by the Committee).
In order to be effective, the Participant must notify the
- 11 -
<PAGE> 18
Committee (or its designee) prior to the date that the increase or
decrease will become effective.
(b) Suspension of Contributions. A Participant may suspend his
Pre-Tax Contributions at any time by properly completing a form
prescribed by the Committee (or in any other manner approved by the
Committee). The suspension of Pre-Tax Contributions will be
effective as soon as is administratively feasible after the
Participant properly communicates his election to suspend Pre-Tax
Contributions. A Participant may resume making Pre-Tax
Contributions on the first day of any pay period which is after the
effective date of such suspension of contributions and only after
informing the Committee in writing (or its designee in any other
manner approved by the Committee) prior to the date on which the
Pre-Tax Contributions are to resume. A Participant's Pre-Tax
Contributions shall automatically be suspended beginning on the
first payroll period that commences after the Participant is not in
receipt of Earnings, the Participant's layoff or the Participant's
Authorized Leave of Absence without pay.
(c) Other Rules.
(1) In order to satisfy the provisions of Articles
12 and 13, the Committee may from time to time either
temporarily suspend the Pre-Tax Contributions of Employees or
reduce the maximum permissible Pre-Tax Contribution that may
be made to the Plan by Employees.
(2) Any reduction, increase, or suspension of
Pre-Tax Contributions described in this Section 4.03 shall be
made in such manner as the Committee may prescribe from time
to time consistent with the provisions of this Article.
4.04 Deadline for Contribution and Allocation of Pre-Tax Contributions.
Pre-Tax Contributions shall be deducted by the Employer from the
Participant's Earnings and paid to the Trustee as promptly as possible
after the end of each regular pay period but in no event later than any
time period established under applicable law.
4.05 Rollover Contribution.
(a) Without regard to any limitation on contributions set forth
in this Article, an Eligible Employee shall be permitted, if the
Committee consents (based on non-discriminatory criteria), to
transfer to the Trustee during any Plan Year additional property
acceptable to the Trustee, provided such property:
(1) was received by the Eligible Employee from a
Qualified Plan maintained by a previous employer and
qualifies as a rollover contribution within the meaning of
Code Section 402(a)(5) or
- 12 -
<PAGE> 19
(2) was received by the Eligible Employee from an
individual retirement account or individual retirement
annuity and qualifies as a rollover contribution within the
meaning of Code Section 408(d)(3)(A)(ii).
(b) Such property shall be held in the Employee's Rollover
Account. All such amounts so held shall at all times be fully
vested and nonforfeitable. Such amounts shall be distributed to
the Eligible Employee upon Termination of Employment in the manner
provided in Article 8.
(c) See Section 8.06 regarding the right of an Eligible
Employee to request a direct rollover of the Eligible Employee's
Account in lieu of a distribution of such Account.
4.06 No After-Tax Employee Contributions. Employees shall not be permitted to
make after-tax contributions to the Plan.
- 13 -
<PAGE> 20
ARTICLE 5
EMPLOYER CONTRIBUTIONS
5.01 Employer Matching Contribution. The Employer shall contribute and
allocate to the Employer Matching Contribution Account of each Participant
who during such Plan Year made a Pre-Tax Contribution. A Participant's
Employer Matching Contribution shall be equal to 50% of the Participant's
Pre-Tax Contributions for the Plan Year; provided, however, only Pre-Tax
Contributions of up to 4% of Compensation shall be matched.
5.02 Employer Retirement Contributions.
(a) Amount and Timing. The Employer shall make an Employer
Retirement Contribution on behalf of each Participant who is an
Eligible Employee during the Plan Year. The amount of any Employer
Retirement Contribution shall be determined annually by the Board.
However, if the Board fails to determine the amount of an Employer
Retirement Contribution for a given Plan Year, then such Employer
Retirement Contribution shall be an amount equal to 3% of each
Participant's Compensation for such Plan Year.
(b) Allocation of Employer Retirement Contribution. Employer
Retirement Contributions shall be allocated among the Employer
Contribution Accounts of all Participants who complete at least
1,000 Hours of Service during the Plan Year and who are employed on
the last regularly scheduled work day of the Plan Year. The
Employer Retirement Contribution, if any, shall be allocated in the
proportion that such Participant's Compensation bears to the total
such Compensation for all Participants for that Plan Year.
(c) Employment on Last Regularly Scheduled Work Day of Plan Year.
For purposes of allocating the Employer Retirement Contribution,
any Participant who either has a Termination of Employment on
account of Retirement, death, Permanent Disability, commencement of
an Authorized Leave of Absence or transfer to an Affiliate shall be
deemed to be employed on the last regularly scheduled work day of
the Plan Year in which such Termination of Employment occurred. In
addition, certain Participants who have a Termination of Employment
during the Plan Year may be treated as being employed on the last
day of the Plan Year for purposes of receiving an allocation of
Employer Contributions if such treatment is necessary to enable the
Plan to satisfy the requirements of Code Section 410(b). Any such
allocation must be done in a nondiscriminatory manner.
5.03 Qualified Nonelective Contributions. In the sole discretion of the
Executive Committee, an additional Employer Contribution may be made to
the Plan which shall be known as a "Qualified Nonelective Contribution."
Such contribution shall be made in order to satisfy the requirements of
Article 13 or any other purpose designated by the Committee, and
- 14 -
<PAGE> 21
shall be allocated to the Qualified Nonelective Contribution Accounts of
those non-Highly Compensated Employees selected by the Committee at the
time such Qualified Nonelective Contribution is made, or as soon
thereafter as possible.
5.04 Form and Timing of Contributions.
(a) Employer Contributions shall be made in cash. Employer
Contributions shall be delivered to the Trustee on or before the
date prescribed by the Code for filing the Employer's federal
income tax return, including authorized extensions. The Trustee
shall not be liable for the Employer's failure to deliver Employer
Contributions to the Trustee on or before such date.
(b) Except as provided in this Section 5.04, all Employer
Contributions shall be irrevocable, shall never inure to the
benefit of any Employer, shall be held for the exclusive purpose of
providing benefits to Participants and their Beneficiaries (and
contingently for defraying reasonable expenses of administering the
Plan), and shall be held and distributed by the Trustees only in
accordance with this Plan.
(c) Upon an Employer's request and to the extent permitted by
the Code and other applicable laws and regulations thereunder, a
contribution which was made by a mistake in fact, or conditioned
upon the initial qualification of the Plan under Code Section
401(a) or upon the deductibility of the contribution under Code
Section 404 shall be returned to the Employer within one year after
the payment of the contribution, the denial of the Plan's initial
qualification, or the disallowance of the deduction (to the extent
disallowed) whichever is applicable. All contributions to this
Plan are conditioned upon the initial qualification of this Plan
under Code Section 401(a) and upon the deductibility of the
contribution under Code Section 404.
5.05 Forfeitures.
(a) Forfeitures shall first be applied to restore amounts
previously forfeited pursuant to Section 7.06(b).
(b) If any Forfeitures remain after the application of Section
7.06(b), Forfeitures shall be applied to reduce Employer
Contributions under Sections 5.01 and 5.02.
(c) Section 7.06 describes the method to determine when a
Forfeiture of a Participant's Account occurs.
- 15 -
<PAGE> 22
ARTICLE 6
ACCOUNTS AND ALLOCATIONS
6.01 Participant Accounts.
(a) Individual Account Plan. This Plan is an "individual account
plan," as that term is used in ERISA. A separate Account shall be
maintained for each Participant, Former Participant or Beneficiary,
so long as he has an interest in the Trust Fund.
(b) Sub-Accounts. Each Account shall be divided (as appropriate
for accounting purposes) into the following sub-accounts:
(1) The Employer Retirement Contribution Account,
which shall reflect the Employer Retirement Contributions
contributed to this Plan and any Adjustments thereto.
(2) The Pre-Tax Contribution Account, which shall
reflect Pre-Tax Contributions contributed to this Plan and any
Adjustments thereto.
(3) The Employer Matching Contribution Account, which
shall reflect Employer Matching Contributions contributed to
this Plan and any Adjustments thereto.
(4) The Qualified Nonelective Contribution Account,
which shall reflect Qualified Nonelective Contributions
contributed to this Plan and any Adjustments thereto.
(5) The Rollover Account, which shall reflect the
value of all investments derived from the Participant's
Rollover Contributions under this Plan and any Adjustments
thereto.
In addition, the Committee may divide such sub-accounts into such
sub-portions as the Committee deems to be necessary or advisable
under the circumstances or to establish other accounts or
sub-accounts as needed.
(c) Value of Account as of Valuation Date. As of each Valuation
Date, each Participant's Account shall equal:
(1) his total Account as determined on the
immediately preceding Valuation Date, plus
(2) his Pre-Tax Contributions added to his Account
since the immediately preceding Valuation Date, plus
- 16 -
<PAGE> 23
(3) his Employer Contributions added to his Account
since the immediately preceding Valuation Date, plus
(4) his Rollover Contributions since the immediately
preceding Valuation Date, minus
(5) his Distributions, if any, since the immediately
preceding Valuation Date, plus or minus
(6) his allocable share of Adjustments.
6.02 Valuation.
(a) The Adjustment for each Investment Fund shall be calculated
as of each Valuation Date. The Adjustment for a given Investment
Fund shall be allocated to each Account invested in such Investment
Fund in the proportion that each such Account bears to the total of
all such Accounts.
(b) The Committee may direct that expenses attributable to
general plan administration be charged to the Accounts of all
Participants in proportion to their Account balances, determined in
accordance with this Section 6.02.
6.03 Investment Funds and Elections.
(a) Election of Investment Funds. Each Participant shall direct,
following such procedures as may be specified by the Committee, to
have his Account allocated or reallocated among the Investment
Funds.
(b) Initial Investment Direction. A Participant's initial
investment election must allocate his entire Account in 1%
increments among the Investment Funds, as of the date of the
directive, and all subsequent contributions to each sub-account for
so long as the election remains in effect. An Employee who fails to
make a proper investment election by the deadline established by the
Committee for such purpose, shall be deemed to have elected to
allocate his Account in a money market fund or any other Investment
Fund that, in the Committee's determination, best provides for the
least volatility in the value of principal.
(c) Subsequent Elections. Investment elections will remain in
effect until changed by a new election. New elections may be made
by a Participant in 1% increments among the Investment Funds as of
any Valuation Date upon prior written notice to the Committee (or in
any other manner designated by the Committee) delivered by the
deadline established by the Committee for such purpose.
- 17 -
<PAGE> 24
(d) Investment Options. The Committee shall select such
Investment Funds as are deemed appropriate and shall notify affected
Participants of such Investment Funds. The Committee may modify,
eliminate or select new Investment Funds from time to time and shall
notify affected Participants of such changes and solicit new
investment elections, if appropriate.
6.04 Errors. Where an error or omission is discovered in any Participant's
Account, the Committee shall make appropriate corrective adjustments as of
the end of the Plan Year in which the error or omission is discovered. If
it is not practical to correct the error retroactively, then the Committee
shall take such action in its sole discretion as may be necessary to make
such corrective adjustments, provided that any such actions shall treat
similarly situated Participants alike and shall not discriminate in favor
of Highly Compensated Employees.
6.05 Valuation for Purposes of Distributions. For the purposes of Articles 7
and 8, each Participant's Account shall be valued as of the Valuation Date
immediately preceding Distribution of the Participant's Account.
- 18 -
<PAGE> 25
ARTICLE 7
VESTING AND BENEFITS
7.01 Normal Retirement. A Participant who remains employed with the Employer
until his Normal Retirement Age shall be 100% vested in his Account. Upon
such Participant's subsequent Termination of Employment, such Account will
be distributed in accordance with Article 8.
7.02 Permanent Disability. A Participant who has a Termination of Employment
on account of Disability shall become 100% vested in his Account as of the
date of such Permanent Disability and shall be entitled to a Distribution
of his Account in accordance with Article 8.
7.03 Death. A Participant who has a Termination of Employment on account of
death shall become 100% vested in his Account. The Participant's
Beneficiary shall receive a Distribution of such Account in accordance
with Article 8.
7.04 Other Termination of Employment.
(a) In General. Upon a Participant's Termination of Employment
for any reason other than Normal Retirement, Permanent Disability or
death, the Participant shall be entitled to the vested portion of
his Account, which shall be distributed in accordance with Article
8.
(b) Vesting Schedule. A Participant shall be 100% vested in his
Employer Contribution Account after completing five (5) Years of
Vesting Service. If a Participant has less than five (5) Years of
Vesting Service at the time he has a Termination of Employment, the
Participant shall forfeit all amounts held in his Employer
Contribution Account pursuant to Section 7.06.
(c) 100% Vesting in Pre-Tax Contribution and Rollover Account. A
Participant shall always be 100% vested in his Pre-Tax Contribution
Account and Rollover Account.
(d) Amended Vesting Schedule. If the Plan's vesting schedule is
amended, each Participant with at least three (3) Years of Vesting
Service with the Employer may elect, within a reasonable period
after the adoption of the amendment or change, to have the
nonforfeitable percentage computed under the Plan without regard to
such amendment or change.
The period during which the election may be made shall commence
with the date the amendment is adopted or deemed to be made and
shall end on the latest of:
- 19 -
<PAGE> 26
(A) 60 days after the amendment is adopted,
(B) 60 days after the amendment becomes effective,
or
(C) 60 days after the Participant is issued written
notice of the amendment by the Employer or Plan
Administrator.
However, no election is required to be provided to any Participant
whose vested percentage, as amended, cannot at any time be less
than the Participant's vested percentage under the prior vesting
schedule.
7.05 Year of Vesting Service.
(a) Vesting Credit. An Employee shall receive one Year of
Vesting Service for any Plan Year during which the Employee is
credited with 1,000 or more Hours of Service. An Employee shall not
receive a Year of Vesting Service for any period of Employment
during any Plan Year if the Employee is credited with less than
1,000 Hours of Service during such Plan Year.
(b) Forfeiture of Vesting Service. A Year of Vesting Service
shall not include any period of Employment which precedes a Break in
Service if as of the first day of the Break in Service, the Employee
does not have a vested interest in his Employer Contributions.
(c) Employment with Affiliates. Any period of employment with an
Affiliate shall be considered service with the Employer for purposes
of determining whether the Employee has a Year of Vesting Service.
(d) Authorized Leave of Absence. A Year of Vesting Service shall
not include any period of Authorized Leave of Absence or service in
the military except to the extent such service is required to be
credited under applicable federal law.
(e) Employment with Affiliate; Predecessor Businesses. Years of
Vesting Service shall not include any period of Employment with any
Affiliate prior to its becoming an Affiliate or any period of
Employment with a predecessor business prior to its acquisition by
Employer except to the extent provided in a schedule to this Plan.
In addition, the Committee may provide for past service credit to
other Employees to the extent permitted by Treasury Regulations, as
set forth in Schedule A.
7.06 Forfeitures.
(a) Distribution of Vested Account Prior to Break in Service. A
Participant who incurs a Termination of Employment and receives a
Distribution of his entire vested Account prior to incurring a Break
in Service, shall, upon such Distribution, forfeit the non-vested
portion of his Account. A Participant who is not vested in
- 20 -
<PAGE> 27
his Account shall be deemed to have received a Distribution of his
entire vested Account upon his Termination of Employment, and the
Participant's non-vested Account shall be immediately forfeited.
(b) Repayment of Account; Restoration of Non-Vested Account.
Except as provided below, a Participant who is rehired by the
Employer shall have the right to repay to the Plan the portion of
the Participant's Account which was previously distributed to him.
In the event the Participant repays the entire Distribution he
received from the Plan, the Employer shall restore the non-vested
portion of the Participant's Account. A Participant's Account shall
first be restored, to the extent possible, out of Forfeitures under
the Plan in the Plan Year in which the Participant repays his prior
Distribution. To the extent such Forfeitures are insufficient to
restore the Participant's Account, restoration shall be made from
Employer Contributions. A Participant who was deemed to have
received a Distribution of his vested Account (see subsection (b)
above) shall be deemed to have repaid such vested Account if such
Participant is rehired before incurring a Break in Service.
(c) Restrictions of Repayment Account. Notwithstanding anything
to the contrary in this Plan, a Participant shall not have the right
to repay to the Plan the portion of his Account which was previously
distributed to him after any of the following events: (i) the
Participant incurs a Break in Service before returning to
Employment, (ii) the Participant fails to repay the prior
Distribution within five years after the Participant is re-employed
by the Employer, or (iii) the Participant received a Distribution of
his entire Account balance at the time of such earlier Distribution.
- 21 -
<PAGE> 28
ARTICLE 8
DISTRIBUTIONS
8.01 Methods of Distributions. A Participant's Account shall be payable as a
lump sum or in installment payments payable in monthly installments of
substantially equal amounts over a period certain not to exceed ten years.
Hardship distributions and loans under Article 9 shall be made in the
form of a lump sum payment only.
8.02 Commencement of Distribution.
(a) A Participant's Account shall not be distributed without
the consent of the Participant. However, under the following
circumstances, the Committee shall direct the Trustee to distribute
the Participant's vested Account regardless of whether the
Participant or Spouse consents to such Distribution:
(i) Small Accounts. If a Participant incurs a
Termination of Employment and the Participant's vested
Account Balance did not exceed $3,500 at the time of any
Distribution, benefits shall be distributed in one lump sum
no later than the sixty (60) days after the end of the Plan
Year in which occurred the Participant's Termination of
Employment. However, if the Employer rehires the Participant
prior to the date of Distribution, no Distribution shall be
made under this Section 8.02(a)(i).
(ii) Attainment of Normal Retirement Age. A
Participant's Account shall commence to be distributed within
60 days after the end of the Plan Year coincident with or
immediately following the Participant's attainment of his
Normal Retirement Age, or if later, the Participant's
Termination of Employment.
(iii) Death of Participant. If the Participant dies,
the Participant's Account balance shall be made available for
distribution to the Participant's Beneficiary within 90 days
after such death, unless the particular facts and
circumstances require a longer waiting period.
(iv) Attainment of Age 70-1/2. If the Participant
attains age 70-1/2 and distribution is required under Section
8.03, the Participant's Account shall commence to be
distributed as provided in such Section.
(b) In the event of a Participant's request for a hardship
distribution, distribution shall be made no later than 90 days
after the request is approved by the Committee.
(c) The Committee may, in accordance with policies uniformly
applied, require written application as a precondition to the
payment of benefits hereunder.
- 22 -
<PAGE> 29
(d) The Committee shall issue directions to the Trustee
concerning the recipient and distribution date of benefits which
are to be paid from the Trust pursuant to the Plan.
8.03 Special Distribution Rules.
(a) Scope of Section. To the extent that the distribution rules
described in this Section provide a limitation upon distribution
rules stated elsewhere in this Plan, the distribution rules stated
in this Section shall take precedence over such conflicting rules.
However, under no circumstances shall the rules stated in this
Section be deemed to provide distribution rights to Participants or
their Beneficiaries which are more expansive or greater than the
distribution rights stated elsewhere in this Plan.
(b) Distributions Must Commence Before Age 70-1/2. In no event
may the Distribution of a Participant's Account commence later than
April 1 following the calendar year in which the Participant attains
age 70-1/2 (the "required beginning date").
(c) Distributions Pursuant to Qualified Domestic Relations Orders.
Notwithstanding anything to the contrary in this Plan, a "qualified
domestic relations order," as defined in Code Section 414(p), may
provide that any amount to be distributed to an alternate payee may
be distributed immediately even though the Participant is not yet
entitled to a distribution under the Plan. The intent of this
Section is to provide for the distribution of benefits to an
alternate payee as permitted by Treasury Regulation Section
1.401(a)-13(g)(3).
(d) Method of Distribution. The entire Account of each
Participant shall be distributed, beginning not later than the
required beginning date, in the manner elected by the Participant.
However, if the Participant fails to elect a distribution option by
the required beginning date, the Participant's vested Account will
be distributed in a lump sum.
8.04 Application for Benefits. The Committee may require a Participant or
Beneficiary to complete and file with the Committee certain forms as a
condition precedent to the payment of benefits. The Committee may rely
upon all such information given to it, including the Participant's current
mailing address. It is the responsibility of all persons interested in
distributions from the Trust Fund to keep the Committee informed of their
current mailing addresses.
8.05 Direct Rollovers.
(a) In General. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a Distributee's election under
this Section, a Distributee may elect, at the time and in the manner
prescribed by the Plan Administrator, to have any
- 23 -
<PAGE> 30
portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the
Distributee in a direct rollover.
(b) Definitions.
Eligible Rollover Distribution. An Eligible Rollover Distribution
is any distribution of all or any portion of the balance to the
credit of the Distributee, except that an Eligible Rollover
Distribution does not include (i) 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; (ii) any distribution
to the extent such distribution is required under Code Section
401(a)(9); and (iii) the portion of any distribution that is not
includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to employer
securities.
Eligible Retirement Plan. An Eligible Retirement Plan is an
individual retirement account described in Code Section 408(a), an
individual retirement annuity described in Code Section 408(b), an
annuity plan described in Code Section 403(a), or a qualified
trust described in Code Section 401(a), that accepts the
Distributee's Eligible Rollover Distribution. However, in the case
of an Eligible Rollover Distribution to the surviving spouse, an
Eligible Retirement Plan is an individual retirement account or
individual retirement annuity.
Distributee. A Distributee includes an Employee or former
Employee. In addition, the Employee's or former Employee's
surviving Spouse and the Employee's or former Employee's Spouse or
former Spouse who is an 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.
Direct Rollover. A Direct Rollover is a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.
(c) Waiver. If a distribution is one to which Code Section
Section 401(a)(11) and 417 do not apply, such distribution may
commence less than 30 days after the notice required under Section
1.411(a)-11(c) of the Income Tax Regulations is given, provided
that:
(1) the Plan Administrator clearly informs the
Participant that the Participant has a right to a period of at
least 30 days after receiving the notice to consider the
decision of whether or not to elect a distribution (and, if
applicable, a particular distribution option), and
(2) the Participant, after receiving this notice,
affirmatively elects a distribution.
- 24 -
<PAGE> 31
ARTICLE 9
IN-SERVICE WITHDRAWALS; LOANS
9.01 Hardship Withdrawal of Account.
(a) In General. Any Participant may request the Committee to
distribute to him part or all of his Pre-Tax Contributions Account.
Notwithstanding the above, income or gain that is allocated to the
Participant's Pre-Tax Contribution Account may not be distributed
in a hardship withdrawal.
(b) Definition of Hardship. Hardship shall mean an immediate
and heavy financial need experienced by reason of:
(1) expenses of any accident to or sickness of such
Participant, his Spouse or his dependents or expenses
necessary to provide medical care for such Participant, his
Spouse or his dependents;
(2) purchase of a primary residence for such
Participant;
(3) payment of tuition and related educational fees
(including room and board) for the next twelve months of
post-secondary education for the Participant, his Spouse,
children or dependents; or
(4) the need to prevent the eviction of the
Participant from his principal residence or foreclosure on
the Participant's principal residence.
(c) Maximum Hardship Distribution. A hardship distribution
cannot exceed the amount required to meet the immediate financial
need created by the hardship (after taking into account applicable
federal, state, or local income taxes and penalties) and not
reasonably available from other resources of the Participant. A
Participant may not request a hardship withdrawal unless the
Participant has a loan outstanding under this Plan.
In order to ensure compliance with the requirement that the
hardship cannot be met by other resources, the Committee shall
require the Participant to certify on a form provided by the
Committee for such purpose that the financial need cannot be
relieved (1) through reimbursement or payment by insurance; (2) by
reasonable liquidation of the Participant's assets; (3) by ceasing
Pre-Tax Contributions under the Plan; (4) by other in-service
distributions (including loans) under the Plan and under any other
plan maintained by the Employer; or (5) by borrowing from
commercial lenders on reasonable commercial terms.
- 25 -
<PAGE> 32
(d) Procedure to Request Hardship. The request to receive a
hardship distribution shall be made in writing to the Committee
explaining the nature of the financial hardship and stating the
amount needed to meet the immediate need. Under no circumstances
shall the Committee permit a Participant to repay to the Plan the
amount of any hardship withdrawal by a Participant under this
Section.
9.02 Other In-Service Distributions.
(a) Attainment of Age 59 1/2. If a Participant attains age 59
1/2 while employed by an Employer, the Participant shall be entitled
to receive a distribution of his vested Account balance determined
as if the Participant had experienced a Termination of Employment on
the date of the withdrawal.
(b) Withdrawal of Rollover Contributions. Upon written request
to the Plan Administrator, any Participant who is an Employee may
withdraw amounts held in his Rollover Account.
(c) Repayment of Withdrawals. In no event shall a Participant be
permitted to repay the amount of his in-service withdrawal. The
Committee may establish uniform and nondiscriminatory administrative
procedures concerning requests for in-service withdrawals.
9.03 Loans.
(a) Authority to Establish Loan Program. The Committee and its
designated agent is authorized and directed to administer the loan
program.
(b) Eligibility for Loans. Loans shall be available to all
Participants who (i) have met the eligibility requirements of
Section 3.01 of this Plan and (ii) are actively employed by the
Employer. Loans shall be made available to such Participants on a
reasonably equivalent basis. To request a loan, a Participant must
make application on such forms and follow such procedures as the
Committee may prescribe.
(c) Loan Amount. A loan to any Participant (determined
immediately after the origination of the loan) shall not exceed the
lesser of:
(1) Fifty percent (50%) of the Participant's vested
Account balance as of the Valuation Date with respect to
which the loan is processed; or
(2) $50,000 reduced by the excess (if any) of (A) the highest
outstanding balance of loans from the plan during the
one-year period ending on the day before the date on
which such loan was made, over (B) the outstanding loan
balance of loans from the Plan on the date on which the loan
was made.
- 26 -
<PAGE> 33
In addition, the minimum amount of any loan shall be Five Hundred
Dollars ($500.00).
(d) Assignment of Account. Each loan shall be supported by the
Participant's promissory note for the amount of the loan, including
interest, payable to the order of the Trust. In addition, each
loan shall be supported by an assignment of 50% of the
Participant's right, title and interest in and to his Account. The
Participant must obtain the consent of his or her Spouse, if any,
within the 90-day period before the time his or her account balance
is used as security for the loan. A new consent is required if the
account balance is used for any increase in the amount of the
security.
(e) Interest. Interest shall be charged on any such loan at a
rate established from time to time by the Trustee provided such
rate is equivalent to a rate that would be charged by a commercial
lender for a similar loan.
(f) Term of Loan. The maximum repayment term of any loan is
five (5) years, unless the loan is used to acquire any dwelling
unit which within a reasonable time after the loan is made is to be
used by the principal residence of the Participant. The maximum
repayment term for a loan used to acquire a dwelling unit shall be
a reasonable time, as determined by the Committee, that may exceed
five (5) years but shall not exceed thirty (30) years. The term of
the loan may not exceed beyond the Participant's Termination of
Employment. The Committee may, in its discretion, establish a
shorter repayment term than the maximum repayment term otherwise
permitted under the Plan.
(f) Level Amortization. Each loan shall provide for level
amortization with payments to be made at such regular intervals as
the Committee determines in its discretion, but not less frequently
than once every three months over the term of the loan.
(g) Form of Loan Payments. Loan payments shall be made by
payroll deduction; provided, however, that Participants on an
unpaid Authorized Leave of Absence may make loan payments by
personal check.
(h) Directed Investment. A Participant who requests a loan
shall be deemed to have directed the Committee to reduce his
Investment Funds by the amount of the loan, and until such loan is
repaid, such loan shall be considered a directed investment of the
Participant's Account hereunder. The Plan monies which are used to
fund the Participant loan shall be withdrawn from the Participant's
Account on a pro rata basis according to the value of the
Investment Funds in which such Account was invested, determined in
the manner set forth in Section 9.04. Principal and interest
payments on the loan will be allocated to the
- 27 -
<PAGE> 34
Participant's Investment Funds according to the Participant's
investment election at the time of the repayment.
(i) Distribution of Loan. Loan proceeds will be distributed as
soon as practicable after the loan is approved and after the
Participant completes all documentation necessary to make such
loan.
(j) Default.
(1) If a default occurs, all unpaid amounts under the loan
(including principal, accrued interest and unpaid
expenses) shall become due and payable on the 5th
business day following the default, without further
notice.
(2) A loan shall be in default if one of the following events
occurs:
(a) Failure by the borrower to pay the full amount of
any payment on the date when it is due (or if such
date is not a regular business day, on the next
following business day);
(b) Any other note of the borrower to the Plan becomes
or is deemed to be due and payable prior to its
maturity;
(c) The borrower, if an employee of the Company at the
time the loan is made, terminates his or her
employment with the Company for any reason,
including death;
(d) Any property that the borrower pledges as security
for the loan is subject to attachment or
garnishment or is otherwise disposed of, unless
the borrower provides adequate substitute security
approved by the Plan Administrator;
(e) The borrower (i) makes an assignment for the
benefit of creditors, (ii) files a petition in
bankruptcy, (iii) is adjudicated insolvent or
bankrupt, or (iv) becomes the subject of any wage
earner plan under the Federal Bankruptcy Code as
now or hereafter in effect, or under any
applicable state insolvency law;
(f) If there is started against the borrower any
bankruptcy, insolvency, or other similar proceeding
which has not been dismissed by the 60th day after
the date on which the proceeding was started, or
the borrower consents to or approves of any such
proceeding or the appointment of any receiver for
the borrower or any substantial part of the
- 28 -
<PAGE> 35
borrower's property, or the appointment of any
such receivers not discharged within 60 days.
(3) If a default occurs and the borrower fails to pay the
outstanding balance (including principal, unpaid accrued
interest, and any related expenses) under the loan within
5 business days after the occurrence of the default, the
Plan Administrator shall take such action as it deems
necessary or desirable to preserve the Plan's assets.
These actions may include demand for payment served upon
any guarantor of the borrower's obligation, commencement
of legal proceedings against the borrower or any
guarantor, foreclosure and disposition of so much of the
assets pledged as security for the loan as is necessary
to retire the entire amount thereof and to pay all
reasonable costs associated with collection of the unpaid
loan balance, or a combination of legal action and
disposition of assets pledged as security for loan
repayment. If permitted under ERISA and related
Department of Labor regulations, the Plan shall not be
required to commence any of the foregoing actions upon
the occurrence of a default. Instead, the Plan
Administrator may wait to foreclose until such time
as a distribution of the borrower's vested account
balance occurs or, if earlier, when enforcement action is
necessary to comply with the terms of ERISA or to prevent
the Plan's disqualification under the terms of the Code.
(k) Other Requirements. Loans shall generally be made available for
the reasons set forth in Section 9.01(b). However, the Committee
may establish such additional guidelines and rules as it deems
necessary. Such guidelines and rules shall be set forth in the
loan application and the terms specified in such loan application
are hereby incorporated by reference in the Plan. The Committee
may amend or modify the loan application as it deems necessary to
carry out the provisions of this Section 9.03.
9.04 Valuation for Purposes of Loans and Withdrawals. The Participant's
Account for purposes of determining the amount of a loan or withdrawal
shall be determined as of the Valuation Date preceding the date the
Committee approves the loan or withdrawal.
- 29 -
<PAGE> 36
ARTICLE 10
ADMINISTRATION OF THE PLAN
10.01 Named Fiduciaries. The following parties are named as Fiduciaries of
the Plan and shall have the authority to control and manage the operation
and administration of the Plan:
(a) The Company;
(b) The Board;
(c) The Trustee;
(d) The Committee; and
(e) The Executive Committee.
The Fiduciaries named above shall have only the powers and duties
expressly allocated to them in the Plan and in the Trust Agreement and
shall have no other powers and duties in respect of the Plan; provided,
however, that if a power or responsibility is not expressly allocated to
a specific named fiduciary, the power or responsibility shall be that of
the Company. No Fiduciary shall have any liability for, or
responsibility to inquire into, the acts and omissions of any other
Fiduciary in the exercise of powers or the discharge of responsibilities
assigned to such other Fiduciary under this Plan or the Trust Agreement.
10.02 Board of Directors. The Board shall have the power to appoint and
remove the Trustee and the members of the Executive Committee. The Board
shall have no other responsibilities with respect to the Plan.
10.03 Executive Committee. The Executive Committee shall have the power to
amend or terminate the Plan. The Executive Committee may, by resolution,
grant power to the Committee to amend all or any portion of this Plan
without Executive Committee's approval. The Executive Committee shall
have no other responsibilities with respect to the Plan.
10.04 Trustee. The Trustee shall exercise all of the powers and duties
assigned to the Trustee as set forth in the Trust Agreement. The Trustee
shall have no other responsibilities with respect to the Plan.
10.05 Committee.
(a) A Committee of one or more individuals shall be appointed
by and serve at the pleasure of the Executive Committee to
administer the Plan. Any Participant, officer, or director of the
Employer shall be eligible to be appointed a member of
- 30 -
<PAGE> 37
the Committee and all members shall serve as such without
compensation. Upon termination of his employment with the Employer,
or upon ceasing to be an officer or director, if not an employee, he
shall cease to be a member of the Committee. The Executive
Committee shall have the right to remove any member of the Committee
at any time, with or without cause. A member may resign at any time
by written notice to the Committee and the Executive Committee. If
a vacancy in the Committee should occur, a successor shall be
appointed by the Executive Committee. The Committee shall by
written notice keep the Trustee notified of current membership of
the Committee, its officers and agents. The Committee shall furnish
the Trustee a certified signature card for each member of the
Committee and for all purposes hereunder the Trustee shall be
conclusively entitled to rely upon such certified signatures.
(b) The Executive Committee shall appoint a Chairman and a
Secretary from among the members of the Committee. All
resolutions, determinations and other actions shall be by a
majority vote of all members of the Committee. The Committee may
appoint such agents, who need not be members of the Committee, as
it deems necessary for the effective performance of its duties, and
may delegate to such agents such powers and duties, whether
ministerial or discretionary, as the Committee deems expedient or
appropriate. The compensation of such agents shall be fixed by the
Committee; provided, however, that in no event shall compensation
be paid if such payment violates the provisions of ERISA Section
408 and is not exempted from such prohibitions by ERISA Section
408.
(c) The Committee shall have complete control of the
administration of the Plan with all powers necessary to enable it
to properly carry out the provisions of the Plan. The Committee
also may delegate certain aspects of Plan administration to a
designated agent as the Committee deems necessary or desirable. In
addition to all implied powers and responsibilities necessary to
carry out the objectives of the Plan and to comply with the
requirements of ERISA, the Committee shall have the following
specific powers and responsibilities:
(1) to construe the Plan and Trust Agreement and to
determine all questions arising in the administration,
interpretation and operation of the Plan;
(2) to amend any or all of the provisions of the
Plan pursuant to the procedures provided hereunder (but only
if the Executive Committee has delegated such authority to
the Committee);
(3) to decide all questions relating to the
eligibility of Employees to participate in the benefits of
the Plan and Trust Agreement;
(4) to determine the benefits of the Plan to which
any Participant, Beneficiary or other person may be entitled;
- 31 -
<PAGE> 38
(5) to keep records of all acts and determinations
of the Committee, and to keep all such records, books of
accounts, data and other documents as may be necessary for
the proper administration of the Plan;
(6) to prepare and distribute to all Plan
Participants and Beneficiaries information concerning the
Plan and their rights under the Plan, including, but not
limited to, all information which is required to be
distributed by ERISA, the regulations thereunder, or by any
other applicable law;
(7) to file with the Secretary of Labor such
reports and additional documents as may be required by ERISA
and regulations issued thereunder, including, but not limited
to, summary plan description, modifications and changes,
annual reports, terminal reports and supplementary reports;
(8) to file with the Secretary of the Treasury all
reports and information required to be filed by the Code,
ERISA and regulations issued under each; and
(9) to do all things necessary to operate and
administer the Plan in accordance with its provisions and in
compliance with applicable provisions of federal law.
(d) To enable the Committee to perform its functions, the
Employer shall supply full and timely information of all matters
relating to the compensation and length of service of all
Participants, their Retirement, death or other cause of termination
of employment, and such other pertinent facts as the Committee may
require. The Committee shall advise the Trustee of such facts and
issue to the Trustee such instructions as may be required by the
Trustee in the administration of the Plan. The Committee and the
Employer shall be entitled to rely upon all certificates and
reports made by a Certified Public Accountant selected or approved
by the Employer. The Committee, the Employer and its officers
shall be fully protected in respect of any action suffered by them
in good faith in reliance upon the advice or opinion of any
accountant or attorney, and all action so taken or suffered shall
be conclusive upon each of them and upon all other persons
interested in the Plan.
10.06 Standard of Fiduciary Duty. Any Fiduciary, or any person designated by
a Fiduciary to carry out fiduciary responsibilities with respect to the
Plan, shall discharge his duties solely in the interests of the
Participants and Beneficiaries for the exclusive purpose of providing them
with benefits and defraying the reasonable expenses of administering the
Plan. Any Fiduciary shall discharge his duties with the care, skill,
prudence and diligence under the circumstances then prevailing that a
prudent man acting in a like capacity and familiar with such matter would
use in the conduct of an enterprise of a like character and with like
aims. Any Fiduciary shall discharge his duties in accordance with the
documents and instruments governing the Plan insofar as such documents and
- 32 -
<PAGE> 39
instruments are consistent with the provisions of ERISA. Notwithstanding
any other provisions of the Plan, no Fiduciary shall be authorized to
engage in any transaction which is prohibited by Section Section 408 and
2003(a) of ERISA or Code Section 4975 in the performance of its duties
hereunder.
10.07 Claims Procedure. Any Participant, former Participant, Beneficiary, or
Spouse or authorized representative thereof (hereinafter referred to as
"Claimant"), may file a claim for benefits under the Plan by submitting to
the Committee a written statement describing the nature of the claim and
requesting a determination of its validity under the terms of the Plan.
Within ninety (90) days after the date such claim is received by the
Committee, it shall issue a ruling with respect to the claim. If special
circumstances require an extension of time for processing the claim, the
Committee shall send the Claimant written notice of the extension prior to
the termination of the 90-day period. The written notice shall indicate
the special circumstances requiring an extension and the date by which the
Committee believes a decision will be made. In no case, however, shall
the extension of time delay the Committee's decision on such appeal
request beyond 180 days following receipt of the claim for benefits. If
the claim is wholly or partially denied, written notice shall be furnished
to the Claimant, which notice shall set forth in a manner calculated to be
understood by the Claimant:
(1) The specific reason or reasons for denial;
(2) Specific reference to pertinent Plan provisions on which
the denial is based;
(3) 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
(4) An explanation of the claims review procedures.
Any Claimant whose claim for benefits has been denied, may appeal such
denial by resubmitting to the Committee a written statement requesting a
further review of the decision within sixty (60) days of the date the
Claimant receives notice of such denial. Such statement shall set forth
the reasons supporting the claim, the reasons such claim should not have
been denied, and any other issues or comments which the Claimant deems
appropriate with respect to the claim.
If the Claimant shall request in writing, the Committee shall make
copies of the Plan documents pertinent to his claim available for
examination of the Claimant.
Within sixty (60) days after the request for further review is received,
the Committee shall review its determination of benefits and the reasons
therefor and notify the Claimant in writing of its final decision. Such
written notice shall include specific reasons for the decision, written
in a manner calculated to be understood by the Claimant, with specific
references to the pertinent Plan provisions on which the decision is
based. If special
- 33 -
<PAGE> 40
circumstances require an extension of time for processing the appeal, the
Committee shall send the Claimant written notice of the extension prior
to the termination of the 60-day period. In no case, however, shall the
extension of time delay the Committee's decision on such appeal request
beyond 120 days following receipt of the appeal request.
The Committee's decision of appeal may be reviewed by the Executive
Committee, which shall have the right to overrule the Committee. If the
Committee's decision is not reviewed by the Executive Committee, the
Committee's determination shall be conclusive as to all persons.
10.08 Indemnification of Committee. To the extent permitted under ERISA, the
Plan shall indemnify the Executive Committee and the Committee against any
cost or liability which they may incur in the course of administering the
Plan and executing the duties assigned pursuant to the Plan. The Employer
shall indemnify the Committee and the members of the Executive Committee
against any personal liability or cost not provided for in the preceding
sentence which they may incur as a result of any act or omission in
relation to the Plan or its Participants. Notwithstanding the foregoing,
however, no person shall be indemnified for any act or omission which
results from that person's intentional or willful misconduct, or illegal
activity. The Employer may purchase fiduciary liability insurance to
insure its obligation under this Section. The Employer shall have the
right to select counsel to defend the Executive Committee or Committee in
connection with any litigation arising from the execution of their duties
under the Plan.
- 34 -
<PAGE> 41
ARTICLE 11
AMENDMENT AND TERMINATION
11.01 Right to Amend. The Company intends for the Plan to be permanent so
long as the corporation exists; however, it reserves the right to modify,
alter, or amend this Plan or the Trust Agreement, from time to time, to
any extent that it may deem advisable, including, but not limited to any
amendment deemed necessary to insure the continued qualification of the
Plan under Code Section 40l(a) or to insure compliance with ERISA;
provided, however, that the Company shall not have the authority to amend
this Plan in any manner which will:
(a) permit any part of the Fund (other than such part as is
required to pay taxes and administrative expenses) to be used for
or diverted to purposes other than for the exclusive benefit of the
Participants or their Beneficiaries;
(b) cause or permit any portion of the funds to revert to or
become the property of the Employer; or
(c) change the duties, liabilities, or responsibilities of the
Trustee without its prior written consent.
11.02 Termination and Discontinuance of Contributions. The Company shall have
the right at any time to terminate this Plan or to discontinue permanently
its contributions hereunder (hereinafter referred to as "Plan
Termination"). Upon Plan Termination, the Committee shall direct the
Trustee with reference to the disposition of the Fund, after payment of
any expenses properly chargeable against the Fund. The Trustee shall
distribute all amounts held in Trust to the Participants and others
entitled to distributions in proportion to the Accounts of such
Participants and other distributees as of the date of such Plan
Termination. In the event that this Plan is partially terminated, the
provisions of this Section 11.02 shall apply solely with respect to the
Employees affected by the partial termination. If the Plan is terminated
or partially terminated, or if the Employer permanently discontinues its
contributions to the Plan, then all Participants (in the case of complete
Plan termination or permanent discontinuance of contributions) or the
affected Participants (in the event of partial Plan termination), shall
become 100% vested in all of their Accounts under the Plan immediately
upon such event.
11.03 IRS Approval of Termination. Notwithstanding Section 11.02, the Trustee
shall not be required to make any distribution from this Plan in the event
of complete or partial termination until the Internal Revenue Service has
issued a favorable determination with respect to the Plan's termination.
- 35 -
<PAGE> 42
ARTICLE 12
MAXIMUM BENEFITS
12.01 General Rule.
(a) Notwithstanding any other provision of this Plan, for any
Plan Year, the Annual Additions to a Participant's Account, when
combined with the Annual Additions to the Participant's Account
under all other Qualified individual account plans maintained by
the Employer or its Affiliates shall not exceed the lesser of (i)
$30,000 or (ii) twenty-five percent (25%) of the Participant's
Compensation for such Plan Year (the "maximum permissible amount").
(b) The Employer hereby elects that the Limitation Year for
purposes of Code Section 415 shall be the Plan Year.
(c) For purposes of determining the limit on Annual Additions
under paragraph (a) of this Section, the dollar limit described
therein, to wit, $30,000, shall be increased for each Plan Year to
the extent permitted by law.
(d) If the amount to be allocated to a Participant's Account
exceeds the maximum permissible amount (and for this purpose
Employer Contributions shall be deemed to be allocated after
Pre-Tax Contributions), the excess will be disposed of as follows.
First, if the Participant's Annual Additions exceed the maximum
permissible amount as a result of (i) a reasonable error in
estimating the Participant's Compensation, (ii) a reasonable error
in estimating the amount of Pre-Tax Contributions that the
Participant could make under Code Section 415 or (iii) other facts
and circumstances that the Internal Revenue Service finds
justifiable, the Committee may direct the Trustee to return to the
Participant his Pre-Tax Contributions (and allocable earnings) for
such Plan Year to the extent necessary to reduce the excess amount.
Such returned Pre-Tax Contributions shall be ignored in performing
the discrimination tests of Article 13. Second, any excess Annual
Additions still remaining after the return of Pre-Tax
Contributions, the excess shall be reallocated as determined by the
Committee among the Participants whose Accounts have not exceeded
the limit in the proportion that the Compensation of each such
Participant bears to the Compensation of all such Participants. If
such reallocation would result in an addition to another
Participant's Account which exceeds the permitted limit, that
excess shall likewise be reallocated among the Participants whose
Accounts do not exceed the limit. However, if the allocation or
reallocation of the excess amounts pursuant to these provisions
causes the limitations of Code Section 415 to be exceeded with
respect to each Participant for the limitation year, then any such
excess shall be held unallocated in a 415 Suspense Account. If the
415 Suspense Account is in existence at any time during a
limitation year, other than the limitation year
- 36 -
<PAGE> 43
described in the preceding sentence, all amounts in the 415
Suspense Account shall be allocated and reallocated to
Participants' Accounts (subject to the limitations of Code Section
415) before any Contributions which would constitute annual
additions may be made to the Plan for that limitation year.
(e) If the Participant is covered under another qualified
defined contribution plan maintained by an Employer during any
limitation year, the annual additions which may be credited to a
Participant's account under this Plan for any such limitation year
shall not exceed the maximum permissible amount reduced by the
annual additions credited to a Participant's account under all such
plans for the same limitation year. If a Participant's annual
additions under this Plan and such other plans would result in an
excess amount for a limitation year, the excess amount will be
deemed to consist of the annual additions last allocated (and for
this purpose, Employer Contributions shall be deemed to be
allocated after Pre-Tax Contributions). If an excess amount is
allocated to a Participant on an allocation date of this Plan which
coincides with an allocation date of another plan, the excess
amount attributed to this Plan will be the product of
(i) the total excess amount as of such date, times
(ii) the ratio of (A) the annual additions allocated to the
Participant for the limitation year as of such date under
this Plan to (B) the total annual additions allocated to
the Participant for the limitation year as of such date under
this and all the other qualified defined contribution plans
maintained by the Employer.
Any excess amount attributed to this Plan will be disposed in the manner
described in this Section 12.01 above.
12.02 Combined Plan Limitation. If the Employer or its Affiliates maintains,
or at any time maintained, a Qualified defined benefit plan covering any
Participant in this Plan, the sum of the Participant's defined benefit
plan fraction and defined contribution plan fraction shall not exceed 1.0
in any limitation year and the annual benefit otherwise payable to the
Participant under such defined benefit plan shall be frozen or reduced to
the extent necessary so that the sum of such fractions shall not exceed
1.0.
13.02 Definitions.
For the purposes of this Article 13, the following definitions shall
apply:
(a) "Annual Addition" shall mean the sum of:
(i) Employee Contributions;
(ii) Employer Contributions;
- 37 -
<PAGE> 44
(iii) Forfeitures; and
(iv) Amounts allocated to an individual medical account, as
defined in Code Section 415(l)(2), which is part of a
pension or annuity plan maintained by the Employer. Also,
amounts derived from contributions paid or accrued after
December 31, 1985, in taxable years ending after such date,
which are attributable to post-retirement medical benefits
allocated to the separate account of a key employee, as
defined in Code Section 419A(d)(3), under a welfare
benefit fund, as defined in Code Section 419(e),
maintained by the Employer, are treated as Annual Additions.
Annual Additions shall not include any amounts credited to the
Participant's Account resulting from Rollover Contributions.
(b) "Affiliates" shall have that meaning contained in Article 2
except that for purposes of determining who is an Affiliate the
phrase "more than 50 percent" shall be substituted for the phrase
"at least 80 percent" each place it appears in Code Section
1563(a)(1).
(c) "Compensation" shall have the same meaning as defined in
Article 2 except that Compensation for purposes of Article 12 shall
not include salary deferrals under a Code Section 401(k) Plan or
under a Code Section 125 Cafeteria Plan.
(d) "Defined Benefit Fraction" means a fraction, the numerator
of which is the sum of the Participant's projected annual benefits
under all the defined benefit plans (whether or not terminated)
maintained by the Employer or its Affiliates, and the denominator
of which is the lesser of (i) 125 percent of the dollar limitation
in effect for the limitation year under Code Section 415(b)(1)(A)
or (ii) 140 percent of the Highest Average Compensation.
(e) "Defined Contribution Fraction" means a fraction, the
numerator of which is the sum of the Annual Additions to the
Participant's account under all the defined contribution plans
(whether or not terminated) maintained by the Employer or its
Affiliates for the current and all prior limitation years, and the
denominator of which is the sum of the Maximum Aggregate Amounts
for the current and all prior limitation years of service with the
Employer or its Affiliates (regardless of whether a defined
contribution plan was maintained by the Employer or its
Affiliates). The Maximum Aggregate Amount in any limitation year
is the lesser of (i) 125 percent of the dollar limitation in effect
under Code Section 415(c)(1)(A); or (ii) 35 percent of the
Participant's compensation for such year.
(f) "Highest Average Compensation" means the average compensation for
the three consecutive years of service with the employer that
produces the highest average.
- 38 -
<PAGE> 45
(g) "Projected Annual Benefit" means the annual retirement
benefit (adjusted to an actuarially equivalent straight life
annuity if such benefit is expressed in a form other than a
straight life annuity or qualified joint and survivor annuity) to
which the Participant would be entitled under the terms of the plan
assuming (i) the Participant will continue employment until normal
retirement age under the plan (or current age, if later), and (ii)
the Participant's compensation for the current limitation year and
all other relevant factors used to determine benefits under the
plan will remain constant for all future limitation years.
- 39 -
<PAGE> 46
ARTICLE 13
SPECIAL DISCRIMINATION RULES
13.01 Definitions.
Actual Contribution Percentage or ACP shall mean the ratio (expressed as
a percentage) of (i) the sum of the Employer Matching Contributions on
behalf of the Participant for the Plan Year and, to the extent permitted
in Treasury Regulations and elected by the Employer, the Participant's
Qualified Elective Deferrals and Qualified Nonelective Contributions to
(ii) the Participant's Compensation for the Plan Year. The Employer, on
an annual basis, may elect to include or not to include Qualified
Elective Deferrals and Qualified Nonelective Contributions in computing
the ACP for a Plan Year. An Employer may elect on an annual basis to
count a Participant's Employer Matching Contribution or Qualified
Nonelective Contribution toward satisfying the required minimum
contribution under Section 14.03 (minimum contribution for Non-Key
Employees in a top-heavy plan) in lieu of including such contributions in
the ACP. If a Participant (as defined below) does not receive an
allocation of Employer Contributions for a Plan Year, such Participant's
ACP for the Plan Year shall be zero.
Actual Deferral Percentage or ADP shall mean the ratio (expressed as a
percentage) of (i) the sum of Pre-Tax Contributions on behalf of a
Participant for the Plan Year (excluding any Excess Deferrals by a
Non-highly Compensated Employee) and, to the extent permitted in Treasury
Regulations and elected by the Employer, the Participant's Qualified
Nonelective Contributions and Qualified Matching Contributions to (ii)
the Participant's Compensation for the Plan Year. The Employer, on an
annual basis, may elect to include or not to include Qualified
Nonelective Contributions and Qualified Matching Contributions in
computing the ADP for a Plan Year. In the case of a Participant (as
defined below) who does not make a Pre-Tax Contribution for a Plan Year
and is not allocated a Qualified Nonelective Contribution for such Plan
Year, such Participant's ADP for the Plan Year shall be zero.
Average Actual Contribution Percentage shall mean the average (expressed
as a percentage) of the Actual Contribution Percentages of the
Participants in a group. The percentage shall be rounded to the nearest
one-hundredth of one percent (four decimal places).
Average Actual Deferral Percentage shall mean the average (expressed as
a percentage) of the Actual Deferral Percentages of the Participants in a
group. The percentage shall be rounded to the nearest one-hundredth of
one percent (four decimal places).
Combined ADP and ACP Test shall have the meaning as defined in Section
14.09.
- 40 -
<PAGE> 47
Compensation for purposes of this Article 13 shall be that definition
selected by the Committee that satisfies the requirements of Code Section
Section 414(s) and 401(a)(17). Such definition may change from year to
year but must apply uniformly among all Eligible Employees being tested
under the Plan for a given Plan Year and among all Employees being tested
under any other plan that is aggregated with this Plan during the Plan
Year. If the Committee fails to select a definition of Compensation for
purposes of this Article 13, Compensation for purposes of Article 13
shall have the same meaning as defined in Article 2).
Employer Matching Contributions shall mean, for purposes of this Article
13, an Employer Matching Contribution for a particular Plan Year includes
only those contributions that are (i) allocated to the Participant's
Account under the Plan as of any date within such Plan Year, (ii)
contributed to the Trust no later than the end of the 12-month period
following the close of such Plan Year, and (iii) made on account of such
Participant's Pre-Tax Contributions for the Plan Year.
Excess Deferrals shall have that meaning as defined in Section 13.02.
Excess ACP Contributions shall have that meaning as defined in Section
13.08.
Excess ADP Deferrals shall have that meaning as defined in Section 13.05.
Maximum Combined Percentage shall have the meaning as defined in Section
13.09(c).
Participant shall mean, for purposes of this Article 13, a Participant
shall mean any Eligible Employee who (i) is eligible to receive an
allocation of an Employer Matching Contribution, even if no Employer
Matching Contribution is allocated due to the Eligible Employee's failure
to make a required Pre-Tax Contribution, (ii) is eligible to make a
Pre-Tax Contribution, including an Eligible Employee whose right to make
Pre-Tax Contribution has been suspended because of an election not to
participate, and (iii) is unable to receive an Employer Matching
Contribution or make a Pre-Tax Contribution because his Compensation is
less than a stated amount.
Pre-Tax Contributions shall mean, for purposes of this Article 13, a
Pre-Tax Contribution is taken into account only if the contribution (i)
is allocated to the Participant's Account under the terms of the Plan as
of any date within the Plan Year, and (ii) relates to Compensation that
would have been received by the Participant during the Plan Year or
within 2-1/2 months after the Plan Year but for the deferral election. A
Pre-Tax Contribution is considered to be allocated as of a date within a
Plan Year only if the allocation is not contingent on participation in
the Plan or performance of service after the Plan Year to which the
Pre-Tax Contribution relates.
Qualified Elective Deferral shall mean Pre-Tax Contributions designated
by the Committee as Qualified Elective Deferrals in order to meet the ACP
testing requirements of Section 13.06. In addition, the following
requirements must be satisfied:
- 41 -
<PAGE> 48
(1) The aggregate of all Pre-Tax Contributions for the Plan Year
(including the Qualified Elective Deferrals) must satisfy the ADP
testing requirements set forth in Section 13.03(a).
(2) The aggregate of all Pre-Tax Contributions for the Plan Year
(excluding the Qualified Elective Deferrals) must satisfy the ADP
testing requirements set froth in Section 13.03(a).
(3) Qualified Elective Deferrals must satisfy all other
provisions of this Plan applicable to Pre-Tax Contributions and
shall remain part of the Participant's Pre-Tax Contribution Account.
(4) Except as provided by this definition, Qualified Elective
Deferrals shall be excluded in determining whether any other
contribution or benefit satisfies the nondiscrimination requirements
of Code Section Section 401(a)(4) and 401(k)(3).
Qualified Matching Contribution shall mean an Employer Matching
Contribution that the Committee designates as a Qualified Matching
Contribution to meet the ADP testing requirements of Section 13.03. In
addition, all of the following requirements must be satisfied:
(1) The Employer Matching Contribution for a Plan Year (including
any Qualified Matching Contributions for such Plan Year) must
satisfy the requirements of Code Section 401(a)(4).
(2) The Employer Matching Contributions for a Plan Year
(excluding any Qualified Matching Contributions for such Plan year
that are used to satisfy the ADP testing requirements of Section
13.03) must satisfy the requirements of Code Section 401(a)(4).
(3) The Qualified Matching Contribution for a given Plan Year
satisfies the requirements of an Employer Matching Contribution for
such Plan Year as defined in this Section 13.01.
(4) The Qualified Matching Contribution, at the time it was
contributed to the Plan, was 100% vested at all times and was
subject to the distribution restrictions applicable to Pre-Tax
Contributions (except that the Qualified Matching Contribution
cannot be distributed as a hardship distribution).
(5) Qualified Matching Contributions shall, if deemed necessary,
be held in a sub-account of the Participant's Employer Matching
Contribution Account.
Qualified Nonelective Contribution shall mean an Employer contribution
designated by the Committee as a Qualified Nonelective Contribution in
order to meet the ADP testing
- 42 -
<PAGE> 49
requirements of Section 13.03 or the ACP testing requirements of Section
13.06. In addition, the following requirements must be satisfied:
(1) The Qualified Nonelective Contribution, whether or not used
to satisfy the requirements of Sections 13.03 or 13.06, must meet
the requirements of Code Section 401(a)(4).
(2) Qualified Nonelective Contributions which are taken into
account in order to meet the requirements of Section 13.03 or 13.06
(as applicable) shall not be counted in determining whether the
testing requirements of any of such other Sections are met.
(3) The Qualified Nonelective Contributions shall be subject to
all provisions of this Plan applicable to Pre-Tax Contributions.
(4) Except as provided in this paragraph, the Qualified Nonelective
Contributions shall be excluded in determining whether any other
contribution or benefit satisfies the nondiscrimination
requirements of Code Section Section 401(a)(4) and 401(k)(3).
13.02 Limit on Pre-Tax Contributions.
(a) Notwithstanding any other provision of the Plan to the
contrary, the aggregate of a Participant's Pre-Tax Contributions
during a calendar year may not exceed the amount established by the
Secretary of the Treasury pursuant to Code Section 402(g). Any
Pre-Tax Contributions in excess of the foregoing limit ("Excess
Deferral"), plus any income and minus any loss allocable thereto,
may be distributed to the applicable Participant no later than April
15 following the calendar year in which the Pre-Tax Contributions
were made.
(b) Any Participant who has an Excess Deferral during a calendar
year may receive a distribution of the Excess Deferral during such
calendar year plus any income or minus any loss allocable thereto,
provided (1) the Participant requests (or is deemed to request) the
distribution of the Excess Deferral, (2) the distribution occurs
after the date the Excess Deferral arose, and (3) the Committee
designates the distribution as a distribution of an Excess Deferral.
(c) If a Participant makes a Pre-Tax Contribution under this Plan
and in the same calendar year makes a contribution to a Code Section
401(k) plan containing a cash or deferred arrangement (other than
this Plan), a Code Section 408(k) plan (simplified employee pension
plan) or a Code Section 403(b) plan (tax sheltered annuity) and,
after the return of any Excess Deferral pursuant to Section 13.02(a)
and (b) the aggregate of all such Pre-Tax Contributions and
contributions exceed the limitations contained in Code Section
402(g), then such Participant may request that the Committee return
all or a portion of the Participant's Pre-Tax Contributions for the
calendar year plus any income and minus any loss allocable thereto.
The amount by
- 43 -
<PAGE> 50
which such Pre-Tax Contributions and contributions exceed the Code
Section 402(g) limitations will also be known as an Excess Deferral.
(d) Any request for a return of Excess Deferrals arising out of
contributions to a plan described in Section 13.02(c) above which is
maintained by an entity other than the Employer must:
(1) be made in writing;
(2) be submitted to the Committee not later than the
March 1 following the Plan Year in which the Excess Deferral
arose;
(3) specify the amount of the Excess Deferral; and,
(4) contain a statement that if the Excess Deferral is
not distributed, it will, when added to amounts deferred under
other plans or arrangements described in Code Section Section
401(k), 408(k),or 403(b), exceed the limit imposed on the
Participant by Code Section 402(g) for the year in which the
Excess Deferral occurred.
In the event an Excess Deferral arises out of contributions to a
plan (including this Plan) described in Section 13.02(c) above which
is maintained by the Employer, the Participant making the Excess
Deferral shall be deemed to have requested a return of the Excess
Deferral.
(e) Pre-Tax Contributions may only be returned to the extent
necessary to eliminate a Participant's Excess Deferral. Excess
Deferrals returned to the Participant under this Section 13.02 shall
not be treated as annual additions under the Plan. In no event
shall the returned Excess Deferrals for a particular calendar year
exceed the Participant's aggregate Pre-Tax Contributions for such
calendar year.
(f) The income or loss allocable to a Pre-Tax Contribution that
is returned to a Participant pursuant to Section 13.02(a) or (c)
shall be determined by multiplying the income or loss allocable to
the Participant's Account for the calendar year in which the Excess
Deferral arose by a fraction. The numerator of the fraction is the
Excess Deferral. The denominator of the fraction is the value of
the Participant's Account balance on the last day of the calendar
year in which the Excess Deferral arose reduced by any income
allocated to the Participant's Account for such calendar year and
increased by any loss allocated to the Participant's Account for
such calendar year.
(g) The income or loss allocable to an Excess Deferral that is
returned to a Participant pursuant to Section 13.02(b) shall be
determined using any reasonable method adopted by the Plan to
measure income earned or loss incurred during the Plan Year or any
other method authorized by the Internal Revenue Service to compute
- 44 -
<PAGE> 51
the income earned or loss incurred for the period commencing on
January 1 of the calendar year in which the Pre-Tax Contribution was
made and ending on the date the Excess Deferral was distributed.
(h) Any Employer Matching Contribution allocable to an Excess
Deferral that is returned to a Participant pursuant to this Section
13.02 shall be forfeited notwithstanding the provisions of Article 7
(vesting). For this purpose, however, the Pre-Tax Contributions
that are returned to the Participant as an Excess Deferral shall be
deemed to be first those Pre-Tax Contributions for which no Employer
Matching Contribution was made and second those Pre-Tax
Contributions for which an Employer Matching Contribution was made.
Accordingly, if the Pre-Tax Contributions that are returned to the
Participant as Excess Deferrals were not matched, no Employer
Matching Contribution will be forfeited.
13.03 Average Actual Deferral Percentage.
(a) The Average Actual Deferral Percentage for Highly Compensated
Employees for each Plan Year and the Average Actual Deferral
Percentage for Non-highly Compensated Employees for the same Plan
Year must satisfy one of the following tests:
(1) The Average Actual Deferral Percentage for Participants who
are Highly Compensated Employees for the Plan Year shall not
exceed the Average Actual Deferral Percentage for Participants
who are Non-highly Compensated Employees for the Plan Year
multiplied by 1.25; or
(2) The excess of the Average Actual Deferral Percentage for
Participants who are Highly Compensated Employees for the
Plan Year over the Average Actual Deferral Percentage for
Participants who are Non-highly Compensated Employees for the
Plan Year is not more than two percentage points, and the
Average Actual Deferral Percentage for Participants who are
Highly Compensated Employees is not more than the Average
Actual Deferral Percentage for Participants who are
Non-highly Compensated Employees multiplied by two.
(b) The permitted disparity between the Average Actual Deferral
Percentage for Highly Compensated Employees and the Average Actual
Deferral Percentage for Non-Highly Compensated Employees may be
further reduced as required by Section 13.09.
(c) If at the end of the Plan Year, the Plan does not comply with
the provisions of Section 13.03(a), the Employer may do any or all
of the following, except as otherwise provided in the Code or
Treasury Regulations:
- 45 -
<PAGE> 52
(1) Distribute Pre-Tax Contributions to certain Highly Compensated
Employees as provided in Section 13.05; or
(2) Make a Qualified Nonelective Contribution on behalf of any or
all of the Non-highly Compensated Employees and aggregate such
contributions with the Non-highly Compensated Employees'
Pre-Tax Contributions Deferrals as provided in Section 13.01
(definition of ADP); or
(3) Aggregate Qualified Matching Contributions with Pre-Tax
Contributions as provided in Section 13.01 (definition of ADP).
13.04 Special Rules For Determining Average Actual Deferral Percentage.
(a) The Actual Deferral Percentage for any Highly Compensated
Employee for the Plan Year who is eligible to have Pre-Tax
Contributions allocated to his Account under two or more
arrangements described in Code Section 401(k) that are maintained
by an Employer or its Affiliates shall be determined as if such
Pre-Tax Contributions were made under a single arrangement.
(b) If two or more plans maintained by the Employer or its
Affiliates are treated as one plan for purposes of the
nondiscrimination requirements of Code Section 401(a)(4) or the
coverage requirements of Code Section 410(b) (other than for
purposes of the average benefits test), all Pre-Tax Contributions
that are made pursuant to those plans shall be treated as having
been made pursuant to one plan.
(c) For purposes of determining the ADP of a Highly Compensated
Employee who is either a 5% or more owner of an Employer or one of
the ten highest paid Highly Compensated Employees during the Plan
Year, the Pre-Tax Contributions and Compensation of such Participant
shall include the Pre-Tax Contributions and Compensation of his
Family Members. Any person who is a Family Member shall not be
treated as a separate Employee in determining the Average Actual
Deferral Percentage for either Non-highly Compensated Employees or
for Highly Compensated Employees.
(d) The determination and treatment of the Pre-Tax Contributions
and Actual Deferral Percentage of any Participant shall be in
accordance with such other requirements as may be prescribed from
time to time in Treasury Regulations.
- 46 -
<PAGE> 53
13.05 Distribution of Excess ADP Deferrals.
(a) Pre-Tax Contributions exceeding the limitations of Section
13.03(a) ("Excess ADP Deferrals") and any income or loss allocable
to such Excess ADP Deferral shall be designated by the Committee as
Excess ADP Deferrals and shall be distributed to Highly Compensated
Employees whose Accounts were credited with Excess ADP Deferrals in
the preceding Plan Year. In determining the amount of Excess ADP
Deferrals for each Highly Compensated Employee, the Committee shall
reduce the ADP for each Highly Compensated Employee as follows:
(1) The ADP for the Highly Compensated Employee(s) with the highest
ADP will be reduced until equal to the second highest ADPs
under the Plan; then
(2) The ADP for the two (or more) Highly Compensated Employees with
the highest ADPs under the Plan will be reduced until equal to
the third highest ADP level under the Plan; then
(3) The steps described in (1) and (2) shall be repeated with
respect to the third and successive highest ADP levels under
the Plan until the Plan complies with one or both of the ADP
tests described in Section 13.03(a).
(b) To the extent administratively possible, the Committee shall
distribute all Excess ADP Deferrals and any income or loss allocable
thereto prior to 2-1/2 months following the end of the Plan Year in
which the Excess ADP Deferrals arose. In any event, however, the
Excess ADP Deferrals and any income or loss allocable thereto shall
be distributed prior to the end of the Plan Year following the Plan
Year in which the Excess ADP Deferrals arose. Excess ADP Deferrals
shall be treated as annual additions under the Plan.
(c) The income or loss allocable to Excess ADP Deferrals shall be
determined by multiplying the income or loss allocable to the
Participant's Account for the Plan Year in which the Excess ADP
Deferrals arose by a fraction. The numerator of the fraction is the
Excess ADP Deferral. The denominator of the fraction is the value
of the Participant's Account balance on the last day of the Plan
Year in which the Excess ADP Deferrals arose reduced by any income
allocated to the Participant's Account for such Plan Year and
increased by any loss allocated to the Participant's Account for the
Plan Year.
(d) If an Excess Deferral has been distributed to the Participant
pursuant to Section 13.02(a) or (b) for any taxable year of a
Participant, then any Excess ADP Deferral allocable to such
Participant for the same Plan Year in which such taxable year ends
shall be reduced by the amount of such Excess Deferral.
- 47 -
<PAGE> 54
(e) Distribution of Excess ADP Deferrals to Participants described in
Section 13.04(c) shall be made in accordance with the provisions of
Treasury Regulation Section 1.401(k)-1(f)(5)(ii) or any successor
Treasury Regulation thereto.
(f) Any Employer Matching Contribution allocable to an Excess ADP
Deferral that is returned to the Participant pursuant to this
Section 13.05 shall be forfeited notwithstanding the provisions of
Article 7 (vesting). For this purpose, however, the Pre-Tax
Contributions that are returned to the Participant shall be deemed
to be first those Pre-Tax Contributions for which no Employer
Matching Contribution was made and second those Pre-Tax
Contributions for which an Employer Matching Contribution was made.
Accordingly, unmatched Pre-Tax Contributions shall be returned as an
Excess ADP Deferral before matched Pre-Tax Contributions.
13.06 Average Actual Contribution Percentage.
(a) The Average Actual Contribution Percentage for Highly
Compensated Employees for each Plan Year and the Average Actual
Contribution Percentage for Non-highly Compensated Employees for the
same Plan Year must satisfy one of the following tests:
(1) The Average Actual Contribution Percentage for
Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the Average Actual Contribution
Percentage for Participants who are Non-highly Compensated
Employees for the Plan Year multiplied by 1.25; or
(2) The excess of the Average Actual Contribution Percentage for
Participants who are Highly Compensated Employees for the Plan
Year over the Average Actual Contribution Percentage for
Participants who are Non-highly Compensated Employees for the
Plan Year is not more than two percentage points, and the
Average Actual Contribution Percentage for Participants who
are Highly Compensated Employees is not more than the Average
Actual Contribution Percentage for Participants who are
Non-highly Compensated Employees multiplied by two.
(b) If at the end of the Plan Year, the Plan does not comply with
the provisions of Section 13.06(a), the Employer may do any or all
of the following in order to comply with such provision as
applicable (except as otherwise provided in the Code or in Treasury
Regulations):
(1) Aggregate Qualified Elective Deferrals with the Employer
Matching Contributions of Non-highly Compensated Employees as
provided in Section 13.01 (definition of ACP).
- 48 -
<PAGE> 55
(2) Distribute Employer Matching Contributions to certain Highly
Compensated Employees as provided in Section 13.08.
(3) Make a Qualified Nonelective Contribution on behalf of any or
all of the Non-highly Compensated Employees and aggregate such
contributions with the Non-highly Compensated Employees'
Employer Matching Contributions as provided in Section 13.01
(definition of ACP).
13.07 Special Rules For Determining Average Actual Contribution Percentages.
(a) The Actual Contribution Percentage for any Highly Compensated
Employee for the Plan Year who is eligible to have Employer Matching
Contributions allocated to his Account under two or more
arrangements described in Code Section Section 401(a) or 401(m)
that are maintained by an Employer or its Affiliates shall be
determined as if such contributions were made under a single
arrangement.
(b) If two or more plans maintained by the Employer or its Affiliates
are treated as one plan for purposes of the nondiscrimination
requirements of Code Section 401(a)(4) or the coverage requirements
of Code Section 410(b) (other than for purposes of the average
benefits test), all Employer Matching Contributions that are made
pursuant to those plans shall be treated as having been made
pursuant to one plan.
(c) For purposes of determining the Actual Contribution Percentage of a
Highly Compensated Employee who is a 5% or more owner of an
Employer or one of the ten highest paid Highly Compensated
Employees during the Plan Year, the Employer Matching Contributions
and Compensation of such Participant shall include all Employer
Matching Contributions and Compensation of Family Members.
Family Members shall not be treated as separate Employees for
purposes of determining the Average Actual Contribution Percentage
for either Non-highly Compensated Employees or for Highly
Compensated Employees.
(d) The determination and treatment of the Actual Contribution
Percentage of any Participant shall satisfy such other requirements
as may be prescribed by the Secretary of the Treasury.
13.08 Distribution of Employer Matching Contributions.
(a) Employer Matching Contributions exceeding the limitations of
Section 13.06(a) ("Excess ACP Contributions") and any income or loss
allocable to such Excess ACP Contribution may be designated by the
Committee as Excess ACP Contributions and may be distributed in the
Plan Year following the Plan Year in which the Excess ACP
Contributions arose to those Highly Compensated Employees whose
Accounts were credited with Excess ACP Contributions in the
preceding Plan Year. The amount of Excess ACP Contributions to be
distributed
- 49 -
<PAGE> 56
to a Highly Compensated Employee shall be determined using the
procedure described in Section 13.05(a).
(b) To the extent administratively possible, the Committee shall
distribute all Excess ACP Contributions and any income or loss
allocable thereto prior to 2-1/2 months following the end of the
Plan Year in which the Excess ACP Contributions arose. In any
event, however, the Excess ACP Contributions and any income or loss
allocable thereto shall be distributed prior to the end of the Plan
Year following the Plan Year in which the Excess ACP Contributions
arose.
(c) The income or loss allocable to Excess ACP Contributions shall be
determined by multiplying the income or loss allocable to the
Participant's Account for the Plan Year in which the Excess ACP
Contribution arose by a fraction. The numerator of the fraction is
the Excess ACP Contributions. The denominator of the fraction is
the value of the Participant's Account on the last day of the Plan
Year reduced by any income allocated to the Participant's Account by
such Plan Year and increased by any loss allocated to the
Participant's Account for the Plan Year.
(d) Amounts distributed to Highly Compensated Employees under this
Section 13.08 shall be treated as annual additions with respect to
the Employee who received such amount.
(e) Distribution of Excess ACP Contributions to Participants described
in Section 13.08(c) shall be made in accordance with the
provisions of Treasury Regulation Section 1.401(m)-1(e)(2)(iii) or
any successor Treasury Regulations thereto.
13.09 Combined ACP and ADP Test.
(a) The Plan must satisfy the Combined ACP and ADP Test described
in this Section 13.09 only if (1) the Average Actual Deferral
Percentage of the Highly Compensated Employees exceeds 125% of the
Average Actual Deferral Percentage of the Non-highly Compensated
Employees and (2) the Average Actual Contribution Percentage of the
Highly Compensated Employees exceeds 125% of the Average Actual
Contribution Percentage of the Non-highly Compensated Employees.
(b) The Combined ACP and ADP Test is satisfied if the sum of the
Highly Compensated Employees' Average Actual Deferral Percentage and
Average Actual Contribution Percentage is equal to or less than the
Maximum Combined Percentage defined in paragraph (c) below.
(c) The Maximum Combined Percentage shall be determined by
adjusting the Non-highly Compensated Employees' Average Actual
Deferral Percentage and Average Actual Contribution Percentage in
the following manner:
- 50 -
<PAGE> 57
(1) The greater of the two percentages shall be multiplied by
1.25; and
(2) The lesser of the two percentages shall be increased by two
percentage points; however, in no event shall such adjusted
percentage exceed twice the original percentage.
The sum of (1) and (2) shall be the Maximum Combined Percentage.
Notwithstanding the foregoing, the Maximum Combined Percentage
shall be determined in the following manner if such calculation
results in a higher Maximum Combined Percentage than the formula
specified above:
(1) The lesser of the Average Actual Deferral Percentage and
Average Actual Contribution Percentage of the Non-Highly
Compensated Employees shall be multiplied by 1.25; and
(2) The greater of such two percentages shall be increased by two
percentage points; however, in no event shall such percentage
exceed twice the original percentage.
(d) In the event the Plan does not satisfy the Combined ADP and
ACP Test, the Highly Compensated Employees' Average Actual
Contribution Percentage shall be decreased by either distributing
Employer Matching Contributions to certain Highly Compensated
Employees by using the procedures described in Section 13.08 or by
making a Qualified Nonelective Contribution as provided in Section
13.06(b)(3) until the sum of such percentage and the Highly
Compensated Employees' Average Actual Deferral Percentage equals the
Maximum Combined Percentage.
(e) If Employer Matching Contributions are distributed to certain
Highly Compensated Employees in order to satisfy the Combined ADP
and ACP Test, income or loss allocable to such Employer Matching
Contributions shall also be distributed.
(f) To the extent administratively possible, the Committee shall
distribute the Employer Matching Contributions (if applicable) and
allocable income or loss prior to 2-1/2 months following the end of
the Plan Year for which the Combined ADP and ACP Test is computed.
In any event, however, such Employer Matching Contributions (if
applicable) and allocable income or loss shall be distributed by the
end of the Plan Year following the Plan Year for which the Combined
ADP and ACP Test is computed. Employer Matching Contributions that
are distributed pursuant to this Section 13.09 shall be treated as
annual additions under the Plan.
(g) The income or loss allocable to returned Employer Matching
Contributions shall be determined using the same procedures as
Section 13.05(c).
- 51 -
<PAGE> 58
13.10 Order of Applying Certain Sections of Article. In applying the
provisions of this Article 13, the determination and distribution of
Excess Deferrals shall be made first, the determination and elimination
of Excess ACP Contributions shall be made second, the determination and
elimination of Excess ADP Deferrals shall be made third and finally the
determination and any necessary adjustment related to the Combined ADP
and ACP Test shall be made.
- 52 -
<PAGE> 59
ARTICLE 14
TRUST FUND AND TRUSTEE
14.01 General Nature of Trustee's Responsibilities.
(a) To the extent acceptable to it, the Trustee shall receive
such sums of money or other property as shall from time to time be
paid or delivered by the Employer to hold for management and
distribution under the terms of the Plan. All such money and
property so held, together with all investments made therewith and
proceeds thereof, and such earnings, profits, increments, and
accruals thereon as may occur from time to time, less any payments
which the Trustee, from time to time, may be authorized to make
therefrom, shall constitute the Trust Fund.
(b) The Fund shall be held by the Trustee in trust and shall be
administered, controlled and invested in accordance with the Plan,
the Trust and investment objectives established by the Committee.
In the management of the Fund and the discharge of its duties
hereunder, the Trustee shall act solely in the interests of the
Participants, Former Participants and their Spouses or
Beneficiaries. The Trustee shall discharge its duties in
accordance with this Plan and Trust with the care, skill, prudence
and diligence under the circumstances then prevailing that a
prudent man acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like
character and with like aims. The Trustee's obligations relate
solely to the Trust Fund and it shall have no responsibility
whatsoever for the control, management, administration or revision
of the Plan itself or for procuring contributions required in the
Plan.
(c) Anything contained in this Plan and Trust to the contrary
notwithstanding, it shall be impermissible at any time prior to the
satisfaction of all liabilities with respect to Participants,
Former Participants and their Spouses, except for payments of
benefits under the terms of the Plan for any part of this Fund to
be used for or diverted to any purpose other than the exclusive
benefit of such Participants, Former Participants and their Spouses
or Beneficiaries, except for payments of expenses and charges
properly payable out of the Fund as set forth herein.
14.02 Investment Powers.
(a) Any investment determinations made by the Trustee shall be made in
conformity with the standard of fiduciary duty (especially the
prudent man rule) set forth in ERISA.
(b) The Trustee shall cause the investments of the Trust Fund to be
diversified to the extent necessary to minimize the risk of large
losses (unless such diversification would be imprudent).
- 53 -
<PAGE> 60
(c) In no event shall the Trustee maintain the indicia of ownership of
any assets of the Fund outside the jurisdiction of the United States
District Courts.
(d) The Trustee shall exercise its investment discretion so as to
provide sufficient cash assets as the Committee may suggest will be
necessary from time to time to meet the liquidity requirements for
the administration of the Plan.
(e) The foregoing paragraphs of this Section 14.02 are limitations on
the investment powers of the Trustee and (except as expressly
provided) take precedence over the powers set forth in this
paragraph (e). Except as specifically limited above, the Trustee is
authorized and empowered to retain, invest and reinvest any and all
of the trust funds as it shall deem to be in the best interests of
the Participants and there shall be no other additional
restrictions--whether by law or otherwise--on the investment powers
of the Trustee. Consequently the Trustee may invest the Fund in
property (or a part interest therein) which is real or personal,
tangible or intangible, wherever located, whether or not productive
of income or consisting of wasting assets, as the Trustee shall deem
best for the Participants, former Participants and their spouses and
Beneficiaries. Furthermore, the Trustee may, without regard to any
law now or hereafter in force limiting investments by fiduciaries,
invest in a range of investments which includes, inter alia, real
estate (whether income-producing or not); securities issued by any
Employer which has adopted the Plan or any other corporation;
speculative common stocks; any common trust fund or mutual fund held
or administered by the Trustee, any of its subsidiaries, or any
other corporation; any real estate investment trust in which the
Trustee or any other corporation may have any interest whatsoever;
low risk bonds; mortgages on real or personal property wherever
situated; equipment trust certificates; notes or other evidence of
indebtedness; shares of investment companies and mutual funds;
interests in partnerships and trusts; insurance policies and
contracts; option contracts such as those traded on an option
exchange; and any other property or joint or other part interest in
property (including without limitation, part interests in bonds and
mortgages or notes and mortgages), real or personal, of any kind,
class or character, which the Trustee may in its discretion deem
suitable for the Fund, and irrespective (except to the extent
specifically set forth above) of whether any Trustee, individually
or as Trustee, is acting as a participator of any part interest in
property that may be acquired.
(i) The Trustee is explicitly authorized and directed, in
accordance with the terms of the Plan, to acquire and hold
"qualifying employer securities" and "qualifying employer real
property", as those terms are defined in ERISA, to the maximum
of such amounts and percentages allowed by ERISA.
- 54 -
<PAGE> 61
(ii) The Trustee is explicitly authorized to invest all or part of
the Fund in deposits which bear a reasonable rate of interest
in any bank, or trust company or other financial institution,
(including the Trustee, if applicable).
(iii) The Trustee is explicitly authorized to engage in a
transaction with a common or collective trust fund or pooled
investment fund maintained now or created and maintained at a
future time by any bank or trust company (including the
Trustee, if applicable) supervised by a State or Federal
agency provided that such transaction is a sale or a purchase
of an interest in such common or collective trust and further
provided that such bank or trust company receives not more
than reasonable compensation. This general power is meant to
be broad enough to avoid specific identification of all such
funds in this document; and any officer of the Employer, is
authorized (A) to certify to bank examiners and other parties
which specific funds are included in this general power and
(B) to adopt any declarations or enter into any agreements
required so that the Trustee may make investments in such
funds.
14.03 Valuation. The fair market value of the Fund shall be determined by the
Trustee as of each Valuation Date and on such other dates as the Trustee
is directed by the Committee.
14.04 Other Powers. In the management, care and disposition of the Fund, the
Trustee, and its successors, may do all things and execute such
instruments as may be deemed necessary or proper in order to carry out
the provisions of the Plan and this Article, including the following
powers (in addition to the investment powers set forth above), all of
which may be exercised without order of or report to any court and
without giving bond:
(a) To sell, exchange, or otherwise dispose of any property at
any time held in the Fund at public or private sale, for cash or on
terms without advertisement; and no person dealing with the Trustee
shall be bound to see to the application of monies paid;
(b) To retain, manage, operate, repair and improve and to
mortgage and/or lease and/or grant options to sell (for any period
whatsoever) any real or personal property held by the Trustee;
(c) To compromise, compound, and settle any debt or obligation
due to or from it as Trustee hereunder and to reduce the rate of
interest on, to extend or otherwise modify, or to foreclose upon
default or otherwise enforce, and to abandon, if it shall deem it
advisable, any property, whether real or personal, which may at any
time be held by it, and in general to protect in every way the
interest of the Fund, either before or after default;
- 55 -
<PAGE> 62
(d) To vote in person or by proxy on any stocks or other securities
held by it, unless by law or regulatory authority the right to vote
be proscribed as to it but vested in Participants of the Fund, in
which latter event the vote shall be only by the Participants or
as directed by them;
(e) To join in, or to dissent from or oppose, the reorganization,
capitalization, consolidation, sale or merger of corporations or
properties in which the Trustee may be interested as Trustee, upon
such terms and conditions as it may deem wise, and to accept any
securities which may be issued upon any such reorganization,
recapitalization, consolidation, sale or merger and thereafter to
hold the same;
(f) To register any stocks, bonds, or other securities except
interests in real property, held in the Fund in its own name as
Trustee or in the name of a nominee and to hold any investment in
bearer form, or to combine certificates representing such
investments with certificates of the same issue held by the Trustee
in other fiduciary capacities, or to deposit or to arrange for the
deposit of such securities in a qualified central depository even
though, when so deposited such securities may be merged and held in
bulk in the name of the nominee of such depository with other
securities deposited therein by any other person, or to deposit or
to arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with a
federal reserve bank, provided that the books and records of the
Trustee shall at all times show that all such investments are part
of the Fund;
(g) To borrow or raise monies for purposes deemed appropriate by the
Trustee, including the making of distributions under the Plan in
such amount and upon such terms and conditions as in its absolute
discretion the Trustee may deem advisable; and for any sums so
borrowed to issue its promissory note as Trustee and to secure the
repayment thereof by pledging all or any part of the Fund; and no
person lending money to the Trustee shall be bound to see to the
application of the money loaned or to inquire into the validity,
expediency or propriety of any such borrowing;
(h) To employ agents from time to time, at the expense of the Fund, and
to delegate to them such ministerial and limited duties as the
Trustee sees fit;
(i) To consult with counsel, who may be counsel to the undersigned
Employer, actuaries and other professional advisors, and to act
upon the legal advice of such counsel;
(j) To make, execute, and acknowledge and deliver any and all deeds,
leases, assignments and instruments and to do all acts which they
may deem necessary or proper to carry out the investment provisions
of the Plan;
- 56 -
<PAGE> 63
(k) To make distributions wholly or partly in cash or in kind;
and
(l) To reserve from investment and keep unproductive of income
any amounts or part of the Fund as it may from time to time deem
advisable.
14.05 Prohibited Transaction. Anything in this Plan and Trust to the contrary
notwithstanding (and especially the powers granted to the Trustee herein),
the Trustee shall not be authorized to engage in any transaction which is
prohibited by Section Section 406 and/or 2003(a) of ERISA or Code Section
4975, unless the Trustee determines that such transaction is exempt under
the terms of ERISA and the Code therefrom.
14.06 Administration of the Plan; Payments of Benefits; Reliance on Committee.
The Committee shall have the exclusive authority and responsibility for
communicating to the Trustee any and all decisions and directions
concerning the administration of the Plan and the payment of benefits
thereunder (including payees, amounts, addresses, dates of payments,
etc.). In the event the Trustee shall deem it necessary to withhold any
payments or distributions pending compliance with legal requirements with
respect to probate of Wills, appointment of personal representative,
payment of or provision for estate or inheritance taxes, or for death
duties or otherwise, the Trustee shall notify the Committee and shall
thereafter take no action pending compliance, or pending receipt of the
Committee's instructions to distribute. Orders and directions from the
Committee need not specify the purpose of the payment so ordered, and the
Trustee shall not be responsible in any way respecting the purpose or
propriety of such payments or for the administration of the Plan and
Trust. The Trustee shall not be responsible in any respect for the
adequacy of the Fund to meet or discharge any payments or liabilities
under the Plan; and payments shall be limited to amounts available in the
Fund. Any order or direction from the Committee shall constitute a
certification to the Trustee that the action directed is one which is in
conformity with the provisions of the Plan and of ERISA. To the extent
permitted by law, the Trustee shall not be liable for any action taken
(especially any payment made from the Fund) at the direction of the
Committee or for any failure to act, if such action can under the terms of
the Plan and Trust be taken only after receipt from the Committee of
specific directions or for failure to act pending receipt of directions
from the Committee when direction is required or is requested in writing
by the Trustee.
14.07 Directing the Trustee.
(a) The Committee may from time to time direct the Trustee as
to the investment of all or part of the Trust Fund. The Committee
may also from time to time appoint an Investment Manager or Managers
for all, or any part, of the Trust Fund; provided that no Investment
Manager shall be appointed unless it qualifies as an Investment
Manager within the meaning of Section 3(38) of ERISA. Any such
Investment Manager shall be a named fiduciary of the Plan and shall
qualify by accepting its appointment as Investment Manager in
writing.
- 57 -
<PAGE> 64
(b) Upon the appointment and qualification of an Investment Manager,
the Investment Manager shall have, subject to any guidelines issued
by the Committee, exclusive power and authority for the investment
and reinvestment of the portion of the Trust Fund designated by the
Committee and shall have the power to direct the acquisition and
disposition of any and all assets and investment of the Trust Fund.
The Trustee shall be relieved from any liability for the making,
retention, or sale of any investment by or at the direction of an
Investment Manager appointed in the manner herein set forth or by
or at the direction of the Employer. If the Committee and the
Trustee consist of the same individuals, nothing herein shall be
construed to relieve the Committee of its obligation to review the
performance of the Investment Manager from time to time.
14.08 Records and Reports.
(a) The Trustee shall keep accurate and detailed accounts of all
investments, receipts and disbursements, and other transactions
hereunder. Within ninety (90) days following the close of each
fiscal year, the Trustee shall file a written report with the
Employer or the Committee setting forth all investments, receipts
and disbursements, and other transactions effected by the Trustee
during such fiscal year. Upon the expiration of ninety (90) days
from the date of filing such annual or other account, the Trustee
shall be forever released and discharged from any liability or
accountability to the Employer as respects the propriety of its
acts or transactions shown in such accounts (other than liability
for acts of fraud or willful misconduct), except with respect to
any such acts or transactions as to which the Employer shall within
such ninety (90) day period file with the Trustee a written
statement claiming a breach of the Trustee's fiduciary duties or
failure to fulfill the Trustee's obligations under the Plan and
Trust. The Trustee shall never be required to file any inventory
or appraisals, or any annual or other returns to any court or to
post bond.
(b) The Trustee shall be entitled to have a judicial settlement of any
account for which it is responsible. In any such proceeding or
for any judicial instructions required in connection with the
Fund, the only necessary parties thereto in addition to the Trustee
will be the Employer and the Committee. However, the Trustee may
bring in other persons as a party or party defendant.
(c) Any party entitled to written notice or accounting may waive such
notice or accounting required under this Section. To the extent
the Trustee is also a member of the Committee, the Employer and the
Committee shall be deemed to waive the notice and accounting
requirements unless the Employer or Committee notifies the Trustee,
within the required notice period, that it intends to enforce the
writing and accounting requirement.
- 58 -
<PAGE> 65
14.09 Notification to Trustee.
(a) Any notice, direction, order, request, certification or
instruction of the Committee to the Trustee shall be in writing
signed by a member of the Committee or shall be presented at a
meeting with the Trustee. To the extent that the Trustee and the
Committee are the same individuals this requirement shall not be
applicable. Any action by the Employer pursuant to any of the
provisions of the Plan or of this Article 14 shall be authorized or
evidenced by a resolution of the Executive Committee or by an
officer of the Employer authorized by resolution of the Executive
Committee to take actions in connection with this Plan and Trust.
The Trustee and every other person shall be entitled to rely
conclusively upon any and all such notices, directions, orders,
requests, certifications and instructions received from the
Committee or from the Employer and reasonably believed to be
properly executed, and shall act and be fully protected in acting
in accordance therewith.
(b) The Trustee from time to time may request and be entitled to
certified copies of resolutions of the Employer, evidencing the
appointment and termination of office of any members of the
Committee and of successors to such members together with specimens
of their signatures, and the Trustee shall be entitled to rely
conclusively upon such resolutions and signatures as evidence of
the identity of the members of the Committee and shall not be
charged with notice of any change with respect thereto until the
Employer shall have furnished the Trustee with certified copies of
resolutions relative to such change.
14.10 Expenses.
(a) In General. All expenses of the Employer, the Committee, and the
Trust shall be paid from the Trust to the extent they constitute
reasonable expenses of administering the Plan; provided that, the
obligation of the Trust to pay such expenses shall cease to exist
to the extent such expenses are paid by the Employer. This
provision shall be deemed a part of any contract to provide for
expenses of plan administration, whether or not the signatory to
such contract is, as a matter of convenience, the Employer.
(b) Trust Expenses. The Trustee shall compute all expenses of the
Trust and submit a statement setting forth such expenses to the
Employer. The Employer or its designee shall have thirty (30) days
from the receipt of the statement to object to the inclusion or
computation of any item on such statement. At the conclusion of
the thirty (30) day period, the Trustee is authorized to pay
expenses shown on the statement from the Trust Fund unless the
Employer either objects to the statement or the Employer has
previously satisfied the liability by payment to the Trustee from
the Employer's corporate assets. If the Employer objects to only a
portion of the statement, the Trustee is authorized
- 59 -
<PAGE> 66
to pay expenses from that portion of the statement for which no
objection was entered. To the extent an objection is entered,
the Trustee and Employer shall work together in an effort to
resolve any dispute as promptly as possible.
(c) Other Expenses. The Trustee shall pay out of the Trust Fund such
other expenses of administering the Plan, including but not limited
to, accounting, actuarial and legal expenses, as the Committee may
direct and as are permissible under the provisions of ERISA.
(d) Charge to Participant Accounts. To the extent expenses of the
Trustee relating to the acquisition and disposition of investments
of the Trust are paid out of the Trust Fund, such expenses shall be
a charge against and paid from the Plan participant's account for
which such acquisition or disposition relates. All other expenses
which are not directly attributable to a participant's account
shall be charged against the accounts of participants in the manner
provided by the Plan.
14.11 Trustee's Tenure and Succession.
(a) Any Trustee may be removed at any time upon sixty (60) days
notice in writing to the Trustee signed by an authorized member of
the Committee.
(b) Any Trustee may resign at any time upon sixty (60) days notice in
writing to an authorized officer of the Committee. Within ninety
(90) days after such removal or resignation of a Trustee, the
removed or resigning Trustee shall file with the Employer or the
Committee a written account setting forth all investments, receipts
and disbursements, and other transactions in which such Trustee has
participated since the end of the latest fiscal year in which such
an accounting was filed with the Employer or Committee and
containing an exact description of all securities purchased and
sold, the cost or net proceeds of sale, and showing the securities
and investments held at the date of such removal or resignation and
the cost of each item thereof as carried on the books of the
Trustee. Except with respect to any such acts or transactions as
to which the Employer or Committee shall within such ninety (90)
day period file with the Trustee a written statement claiming a
breach of fiduciary duty or failure to observe the terms of this
Article 14, upon the expiration of ninety (90) days from the date
of filing such report, the Trustee participating in such accounting
shall be forever released and discharged from any liability or
accountability to the Employer as respects the propriety of the
Trustee's acts or transactions shown in such report (other than
liability for acts of fraud or willful misconduct) and the Employer
shall thereafter reimburse, indemnify, and hold harmless the
Trustee of and from any and all costs, claims, losses, demands, or
liabilities in respect of its acts, transactions, duties,
obligations or responsibilities as Trustee during the period
covered by such account except those arising from the Trustee's
breach of its fiduciary responsibility under ERISA.
- 60 -
<PAGE> 67
(c) Any party entitled to written notice or accounting may waive the
written notice and accounting required under this Section. If the
removed or resigning Trustee was a member of the Committee at the
time of such removal or resignation, the Employer and the Committee
shall be deemed to waive the notice and accounting requirements
unless the Employer or Committee notifies the removed or resigning
Trustee, within the required notice period, that it intends to
enforce the notice and accounting requirements.
14.12 Successor Trustee. Upon the removal or resignation of a Trustee acting
under this Plan and Trust, a successor Trustee may be appointed as
provided herein. The Trustee who has resigned or has been removed shall
do anything required so that the successor Trustee shall be able to
carry out the rights, duties and obligations of the Trustee set forth
herein. A successor Trustee shall not be responsible for any act or
omission of a predecessor Trustee, and shall not be required to make any
claim or demand against a predecessor Trustee unless the Committee shall
in writing request the successor Trustee to participate in a claim
against a predecessor Trustee. A successor Trustee shall have and may
exercise all the rights, powers and duties given to an original Trustee
named herein, as such rights, powers and duties may be amended from time
to time. Such rights, powers and duties attach to the office of Trustee
and are not personal to any specific Trustee which may be serving as
Trustee under this Plan and Trust at any given time.
14.13 Bond and Security. The Trustee shall not be required to give any bond
or any other security for the faithful performance of the Trustee's
duties under this Plan and Trust, except such as may be required by any
law which prohibits the waiver thereof.
14.14 Commingling. If the Committee consents or directs, the Fund which is
held by the Trustee may be commingled with the trust assets of any
Affiliate which adopts this Plan and Trust. No individual Employer
shall at any time own any specific assets in such commingled Fund, its
interest being an undivided interest of its pro rata portion of the
entire Fund.
- 61 -
<PAGE> 68
ARTICLE 15
MISCELLANEOUS
15.01 Headings. The headings and sub-headings in this Plan have been
inserted for convenience of reference only and are to be ignored in any
construction of the provisions hereof.
15.02 Action by Employer. Any action by an Employer under this Plan shall be
by resolution of its Executive Committee of Directors, or by any
person or persons duly authorized by resolution of the Board to take
such action.
15.03 Spendthrift Clause. Except as otherwise required by a "qualified
domestic relations order" as defined in Code Section 414(p), none of
the benefits, payments, proceeds or distributions under this Plan
shall be subject to the claim of any creditor of any Participant or
Beneficiary, or to any legal process by any creditor of such
Participant or Beneficiary, and none of them shall have any right to
alienate, commute, anticipate or assign any of the benefits, payments,
proceeds or distributions under this Plan except for the extent
expressly provided herein to the contrary.
15.04 Discrimination. The Employer, the Committee, the Trustee and all other
persons involved in the administration and operation of the Plan shall
administer and operate the Plan and Trust in a uniform and consistent
manner with respect to all Participants similarly situated and shall
not permit discrimination in favor of Highly Compensated Employees.
15.05 Release. Any payment to a Participant or Beneficiary, or to their
legal representatives, in accordance with the provisions of this Plan,
shall to the extent thereof be in full satisfaction of all claims
hereunder against the Trustee, Plan Administrator, Committee and the
Employer, any of whom may require such Participant, Beneficiary, or
legal representative, as a condition precedent to such payment, to
execute a receipt and release therefor in such form as shall be
determined by the Trustee, the Committee, or the Employer, as the
case may be.
15.06 Compliance with Applicable Laws. The Company, through the Plan
Administrator, shall interpret and administer the Plan in such manner
that the Plan and Trust shall remain in compliance with the Code,
with ERISA, and all other applicable laws, regulations, and rulings.
15.07 Merger. In the event of any merger or consolidation of the Plan with
any other Plan, or the transfer of assets or liabilities by the Plan to
another Plan, each Participant must receive (assuming that the Plan
would terminate) the benefit immediately after the merger,
consolidation, or transfer which is equal to or greater than the
benefit such Participant would have been entitled to receive
immediately before the merger,
- 62 -
<PAGE> 69
consolidation, or transfer (assuming that the Plan had then terminated),
provided such merger, consolidation, or transfer took place after the
date of enactment of ERISA.
15.08 Governing Law. The Plan shall be governed by the laws of the State of
Georgia to the extent that such laws are not preempted by federal law.
15.09 Legally Incompetent. If any Participant, former Employee or Beneficiary
is a minor or, in the judgment of the Committee is otherwise legally
incapable of personally receiving and giving a valid receipt for any
payment due him hereunder, the Committee may, unless and until a claim
shall have been made by a duly appointed guardian or committee of such
person, direct that such payment or any part thereof be made to such
person's spouse, child, parent, brother, sister, or such other person
deemed by the Committee to have incurred expense for or assumed
responsibility for the expense of such person. Such payment shall fully
discharge the Trustee, Employer, Committee and Plan Administrator from
further liability on account thereof.
15.10 Location of Participant or Beneficiary Unknown. In the event that all
or any portion of the distribution payable to a Participant or his
Beneficiary shall remain unpaid solely by reason of the Committee's
inability to ascertain the whereabouts of such Participant or Beneficiary,
the amount unpaid shall be forfeited. However, such forfeiture shall not
occur until five (5) years after the amount first became payable. The
Committee shall make a diligent effort to locate the Participant or
Beneficiary including the mailing of a registered letter, return receipt
requested, to the last known address of such Participant or Beneficiary.
In the event a Participant or Beneficiary is located subsequent to his
benefit being forfeited, such benefit shall be restored and distributed.
15.11 Distributions Upon Special Occurrences.
(a) Subject to Section 11.03, Pre-Tax Contributions and any income
attributable thereto, shall be distributed to Participants or their
Beneficiaries as soon as administratively feasible after the
termination of the Plan, provided that neither the Employer nor its
Affiliates maintain a successor plan.
(b) Pre-Tax Contributions and any income attributable thereto shall be
distributed to Participants as soon as administratively feasible
after the sale, to an entity that is not an Affiliate, of
substantially all of the assets used by the Employer in the trade
or business in which the Participant is employed.
(c) After the sale of an incorporated Affiliate's interest in a
subsidiary to an entity that is not an Affiliate, Pre-Tax
Contributions and any income attributable thereto of a Participant
who continues to work for such subsidiary shall be distributed as
soon as administratively feasible.
(d) The provisions of this Section 15.13 including the definitions of
terms such as "successor plan" and "substantially all of the assets"
shall be governed by
- 63 -
<PAGE> 70
Treasury Regulation Section 1.401(k)-1(d)(1)(iii) or any
successor Treasury Regulation thereto.
- 64 -
<PAGE> 71
IN WITNESS WHEREOF, the Company has caused this Plan to be duly executed
and adopted on behalf of the Company effective as of April 3, 1996.
COMPANY:
FUQUA ENTERPRISES, INC.
By: L.P. Klamon
----------------------------
Title: President
-------------------------
Date: April 3, 1996
--------------------------
TRUSTEE:
SUNTRUST BANK, ATLANTA
By: Patrick Paparelli
----------------------------
Title: Group Vice President
-------------------------
Date: April 4, 1996
--------------------------
- 65 -
<PAGE> 72
SCHEDULE A
PAST SERVICE CREDITS
On April 3, 1996, Fuqua Enterprises, Inc. acquired all of the assets of the
Lumex Division of Lumex, Inc. To the extent permitted by Treasury Regulations,
former employees of such Lumex Division who commenced employment with an
Employer during 1996 shall be given Years of Eligibility Service and Years of
Vesting Service under this Plan for their prior period of employment with
Lumex, Inc.
