<PAGE> 1
Registration No. 000-22201
Filed May 16, 1997
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
EMERALD FINANCIAL CORP.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its Articles of Incorporation)
Ohio 34-1842953 .
------------------------------- --------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
14092 Pearl Road, Strongsville, Ohio 44136 .
------------------------------------------------------------
(Address of Principal Executive Offices)
The Strongsville Savings Bank 401 (K) Retirement Savings Plan .
-----------------------------------------------------------------
(Full Title of Plan)
John F. Ziegler Emerald Financial Corp.
Executive Vice President & 14092 Pearl Road, Strongsville, Ohio 44136
Chief Financial Officer (216) 238-7311
- ------------------------------ --------------
(Name, address and telephone number of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------
Title of Amount Proposed maxi- Proposed maxi- Amount of
Securities to be to be mum offering mum aggregate Registration
Registered Registered Price per share(2) offering price(2) Fee(3)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Capital Stock, No par 100,000(1) $ 13.44 $1,344,000.00 $ 407.27
value
===================================================================================================================
<FN>
Notes:
1. Represents an estimate of such presently indeterminable number of shares
as may be purchased with employer and employee contributions pursuant to
The Strongsville Savings Bank 401 (K) Retirement Savings Plan. Pursuant
to Rule 416(c) under the Securities Act of 1933, this registration
statement covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plan described herein.
2. Estimated solely for the purpose of calculating the registration fee,
which has been calculated pursuant to Rule 457(h). The proposed Maximum
Offering Price Per Share is the average of the high and low prices of the
common stock, without par value, of Emerald Financial Corp. on the NASDAQ
National Market on May 15, 1997.
3. Computed in accordance with Rule 457(h) under the Act.
- -----------------
This Registration Statement shall become effective automatically upon the date
of filing in accordance with Section 8(a) of the Securities Act of 1933, as
amended, and 17 C.F.R. Section 230.462.
</TABLE>
Page 1 of 7 pages
Index to Exhibits is located on page 7.
<PAGE> 2
Emerald Financial Corp.
S-8 Registration
PART I.
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents constituting Part I of this Registration Statement will
be sent or given to participants in the 401(k) Plan as specified in Rule
428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act").
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Emerald Financial Corp. (the Company) incorporates by reference into
this registration statement the following documents:
(a) Emerald Financial Corp.'s Annual Report on Form 10-K for the
year ended December 31, 1996, filed with the SEC under SEC
File No. 000-22201.
(b) The Compay's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997, filed with the SEC under SEC File No.
000-22201.
(c) The description of the Company's Common Stock, without par
value, contained in the Company's Registration Statement on
Form 8-A dated March 6, 1997.
All documents subsequently filed by the Company or The Strongsville
Savings Bank 401(k) Retirement Savings Plan (Plan) pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (Exchange Act), prior
to the filing of a post-effective amendment that indicates all securities
offered have been sold, or that deregisters all securities then remaining
unsold, shall be deemed incorporated by reference in this registration statement
and to be part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable since the Company's Common Stock is registered under
Section 12 of the Securities Act of 1933, as amended.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to Section 1701.13(E) of the Ohio Revised Code, the Company
will indemnify any director or officer and any former director or officer of the
Company, against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement, actually and reasonably incurred by him or her by
reason of the fact that he or she is or was such a director or officer, in
connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, to the full extent
permitted by applicable law.
Article IV, Section A of the Code of Regulations of the Company
provides that the Company shall indemnify any person who is or was a director or
officer of the company or who is serving at the request of the Company as a
director or officer against expenses (including attorney's fees, judgments,
fines and amounts paid in settlement) actually and reasonably incurred by him or
her by reason of the fact that he or
2
<PAGE> 3
Emerald Financial Corp.
S-8 Registration
she was such director or officer in connection with any threatened, pending or
contemplated action, suit or proceeding, whether civil, criminal, administrative
or investigative to the full extent and according to the procedures and
requirements in the Oho Revised Code as the same may be in effect from time to
time.
The Company has purchased insurance policies indemnifying its officers
and directors and the officers and directors of its subsidiary against claims
and liabilities (with stated exceptions) to which they may become subject by
reason of their positions with the Company as officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable since no restricted securities will be reoffered or
resold pursuant to this Registration Statement.
ITEM 8. EXHIBITS
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8 (numbering corresponds to Exhibit Table
in Item 601 of Regulation S-K).
<TABLE>
<CAPTION>
NO. EXHIBIT PAGE
--- ------- ----
<S> <C> <C>
(24) Power of Attorney for any subsequent amendments is located
on the signature page of this Registration Statement. - -
(99) The Strongsville Savings Bank 401(k) Retirement Savings E-1
Plan, and amendments thereto.
</TABLE>
In lieu of the opinion of counsel or determination letter contemplated
by Item 601(b)(5) of Regulation S-K, the undersigned Registrant hereby
undertakes that it has submitted or will submit the 401(k) Plan and any
amendments thereto to the Internal Revenue Service ("IRS") in a timely manner,
and has made or will make all changes required by the IRS in order to qualify
such Plan under Section 401 of the Internal Revenue Code of 1986, as amended.
3
<PAGE> 4
Emerald Financial Corp.
S-8 Registration
ITEM 9 UNDERTAKINGS
(a) The Company hereby undertakes:
(1) To file, during any period in which offers and sales are
being made, a post-effective amendment to this registration
statement to include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
(2) That, for the purpose of determining any liability under
the Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona-fide offering
thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain
unsold at the termination of the offering.
(4) The Company hereby undertakes that, for purposes of
determining any liability under the Act, each filing of its
annual report pursuant to section 13(a) or section 15(d) of
the Exchange Act that is incorporated by reference in this
registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under
the Act may be permitted to directors, officers and
controlling persons of the Company, the Company has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person
of the Company in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
4
<PAGE> 5
Emerald Financial Corp.
S-8 Registration
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Strongsville, State of Ohio, on the 16th day of May
1997.
EMERALD FINANCIAL CORP.
BY: \S\ THOMAS P. PERCIAK
------------------------------------
Thomas P. Perciak
President and Chief Executive Officer
BY: \S\ JOHN F. ZIEGLER
------------------------------------
John F. Ziegler
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW BY ALL MEN BY THESE PRESENT that each person whose signature
appears below constitutes and appoints Thomas P. Perciak and John F. Ziegler and
each of them (with full power in each act alone), as his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
5
<PAGE> 6
Emerald Financial Corp.
S-8 Registration
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
SIGNATURE TITLE DATE
- -------------------------------------------------------------------------------------------------
<S> <C> <C>
\S\ THOMAS P. PERCIAK President, Chief Executive
- --------------------- Officer and Director
Thomas P. Perciak May 16, 1997
\S\ JOHN F. ZIEGLER Executive Vice President, Chief
- -------------------- Financial Officer and Director
John F. Ziegler May 16, 1997
\S\ MIKE KALINICH Chairman of the Board of Directors
- -----------------
Mike Kalinich May 16, 1997
\S\ JOAN M. DZURILLA Director
- --------------------
Joan M. Dzurilla May 16, 1997
. Director
- ----------------------------
William A. Fraunfelder, Jr.
\S\ GLENN W. GOIST
- ------------------
Glenn W. Goist, DDS Director May 16, 1997
. Director
- ----------------------------
George P. Bohnert, Jr., CPA
. Director
- ---------------------------
John J. Plucinsky, MD
\S\ KENNETH J. PIECHOWSKI Director
- -------------------------
Kenneth J. Piechowski May 16, 1997
- ----------------------------------------------------------------------------------------------------
</TABLE>
The 401(k) Plan. Pursuant to the requirements of the Securities Act, The
Strongsville Savings Bank 401(k) Retirement Savings Plan and Trust has duly
caused this Registration Statement to be signed on its behalf by the undersigned
trustees, thereunto duly authorized, in the City of Strongsville, State of Ohio,
on May 16, 1997.
THE STRONGSVILLE SAVINGS BANK 401(k)
RETIREMENT SAVINGS PLAN AND TRUST
(Plan Administrator)
By: \S\ BARBARA J. BURKE
----------------------------
Barbara J. Burke
Director, Human Resources
6
<PAGE> 7
Emerald Financial Corp.
S-8 Registration
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
- --------------- -----------
24 Power of Attorney for any subsequent amendments is located on
the signature page of this Registration Statement.
99 The Strongsville Savings Bank 401(k) Retirement Savings Plan,
and amendments thereto.
7
<PAGE> 1
Emerald Financial Corp.
S-8 Registration
EXHIBIT 99
THE STRONGSVILLE SAVINGS BANK 401(k) RETIREMENT SAVINGS PLAN,
AND AMENDMENTS THERETO
<PAGE> 2
THE STRONGSVILLE SAVINGS BANK
401(K) RETIREMENT SAVINGS PLAN
Defined Contribution Plan 7.7
Restated July 15,1994
<PAGE> 3
AMEND. NO. 2 PAGE DTD. 1-20-97
------------------------------
TABLE OF CONTENTS
INTRODUCTION
ARTICLE I FORMAT AND DEFINITIONS
Section 1.01 ----- Format
Section 1.02 ----- Definitions
ARTICLE 11 PARTICIPATION
Section 2.01 ----- Active Participant
Section 2.02 ----- Inactive Participant
Section 2.03 ----- Cessation of Participation
ARTICLE III CONTRIBUTIONS
Section 3.01 ----- Employer Contributions
Section 3.01A----- Rollover Contributions
Section 3.02 ----- Forfeitures
Section 3.03 ----- Allocation
Section 3.04 ----- Contribution Limitation
Section 3.05 ----- Excess Amounts
ARTICLE IV INVESTMENT OF CONTRIBUTIONS
Section 4.01 ----- Investment of Contributions
Section 4.01A----- Investment in Qualifying Employer Securities
Section 4.01B----- Limitation - on Investment in Qualifying Employer
Securities by Some Participants
ARTICLE V BENEFITS
Section 5.01 ----- Retirement Benefits
Section 5.02 ----- Death Benefits
Section 5.03 ----- Vested Benefits
Section 5.04 ----- When Benefits Start
Section 5.05 ----- Withdrawal Privileges
Section 5.06 ----- Loans to Participants
ARTICLE VI DISTRIBUTION OF BENEFITS
Section 6.01 ----- Automatic Forms of Distribution
Section 6.02 ----- Optional Forms of Distribution and Distribution
Requirements
Section 6.02A ---- Distributions in Qualifying Employer Securities
Section 6.03 ----- Election Procedures
Section 6.04 ----- Notice Requirements
ARTICLE VII TERMINATION OF PLAN
TABLE OF CONTENTS
1
<PAGE> 4
AMEND. NO. 2 PAGE DTD. 1-20-97
------------------------------
ARTICLE VILL ADMINISTRATION OF PLAN
Section 8.01------ Administration
Section 8.02------ Records
Section 8.03------ Information Available
Section 8.04------ Claim and Appeal Procedures
Section 8.05------ Unclaimed Vested Account Procedure
Section 8.06------ Delegation of Authority
ARTICLE IX GENERAL PROVISIONS
Section 9.01------ Amendments
Section 9.02------ Direct Rollovers
Section 9.03------ Mergers and Direct Transfers
Section 9.04------ Provisions Relating to the Insurer and Other
Parties
Section 9.05------ Employment Status
Section 9.06------ Rights to Plan Assets
Section 9.07------ Beneficiary
Section 9.08------ Nonalienation of Benefits
Section 9.09------ Construction
Section 9.10------ Legal Actions
Section 9.11------ Small Amounts
Section 9.12------ Word Usage
Section 9.13------ Transfers Between Plans
ARTICLE X TOP-HEAVY PLAN REQUIREMENTS
Section 10.01------ Application
Section 10.02------ Definitions
Section 10.03------ Modification of Vesting Requirements
Section 10.04------ Modification of Contributions
Section 10.05------ Modification of Contribution Limitation
PLAN EXECUTION
TABLE OF CONTENTS
2
<PAGE> 5
AMEND. NO. 2 PAGE DTD. 1-20-97
------------------------------
INTRODUCTION
The Primary Employer previously established a retirement savings plan on
February 1, 1990.
The Primary Employer is of the opinion that the plan should be changed. It
believes that the best means to accomplish these changes is to completely
restate the plan's terms, provisions and conditions. The restatement, effective
July 15, 1994, is set forth in this document and is substituted in lieu of the
prior document.
The restated plan continues to be for the exclusive benefit of the
employees of the Employer. All persons covered under the plan on July 14, 1994,
shall continue to be covered under the restated plan with no loss of benefits.
It is intended that the plan, as restated, shall qualify as a profit
sharing plan under the Internal Revenue Code of 1986, including any later
amendments to the Code.
INTRODUCTION 3
<PAGE> 6
ARTICLE I
FORMAT AND DEFINITIONS
SECTION 1.01--FORMAT.
Words and phrases defined in the DEFINITIONS SECTION of Article I shall
have that defined meaning when used in this Plan, unless the context clearly
indicates otherwise.
These words and phrases have an initial capital letter to aid in
identifying them as defined terms.
SECTION 1.02--DEFINITIONS.
ACCOUNT means, for a Participant, his share of the Investment Fund.
Separate accounting records are kept for those parts of his Account that
result from:
a) Elective Deferral Contributions.
b) Matching Contributions.
c) Rollover Contributions.
If the Participant's Vesting Percentage is less than 100% as to any of
the Employer Contributions, a separate accounting record will be kept
for any part of his Account resulting from such Employer Contributions
and, if there has been a prior Forfeiture Date, from such Contributions
made before a prior Forfeiture Date.
A Participant's Account shall be reduced by any distribution of his
Vested Account and by any Forfeitures. A Participant's Account will
participate in the earnings credited, expenses charged and any
appreciation or depreciation of the Investment Fund. His Account is
subject to any minimum guarantees applicable under the Group Contract or
other investment arrangement.
ACCRUAL COMPUTATION PERIOD means a 12-consecutive month period ending on
the last day of each Plan Year, including corresponding 12-consecutive
month periods before February 1, 1990.
ACTIVE PARTICIPANT means an Eligible Employee who is actively
participating in the Plan according to the provisions in the ACTIVE
PARTICIPANT SECTION of Article 11.
AFFILIATED SERVICE GROUP means any group of corporations, partnerships
or other organizations of which the Employer is a part and which is
affiliated within the meaning of Code Section 414(m) and regulations
thereunder. Such a group includes at least two organizations one of
which is either a service organization (that is, an organization the
principal business of which is performing services), or an organization
the principal business of which is performing management functions on a
regular and continuing basis. Such service is of a type historically
performed by employees. In the case of a management organization, the
Affiliated Service Group shall include organizations related, within the
meaning of Code Section 144(a)(3), to either the management organization
or the organization for which it performs management functions. The term
Controlled Group, as it is used in this Plan, shall include the term
Affiliated Service Group.
ARTICLE 1 4 (89679)
<PAGE> 7
ANNUAL COMPENSATION means, on any given date, the Employee's Compensation for
the latest Compensation Year ending on or before the given date.
ANNUITY STARTING DATE means, for a Participant, the first day of the first
period for which an amount is payable as an annuity or any other form.
BENEFICIARY means the person or persons named by a Participant to receive any
benefits under this Plan upon the Participant's death. See the BENEFICIARY
SECTION of Article IX.
CLAIMANT means any person who has made a claim for benefits under this Plan. See
the CLAIM AND APPEAL PROCEDURES SECTION of Article VIII.
CODE means the Internal Revenue Code of 1986, as amended.
COMPENSATION means, except as modified in this definition, the total earnings
paid or made available to an Employee by the Employer during any specified
period.
"Earnings" in this definition means Compensation as defined in the CONTRIBUTION
LIMITATION SECTION of Article III.
Compensation shall also include elective contributions. Elective contributions
are amounts excludable from the Employee's gross income under Code Sections
125,402(e)(3),402(h) or 403(b), and contributed by the Employer, at the
Employee's election, to a Code Section 401(k) arrangement, a simplified employee
pension, cafeteria plan or tax-sheltered annuity. Elective contributions also
include Compensation deferred under a Code Section 457 plan maintained by the
Employer and Employee contributions "picked up" by a governmental entity and,
pursuant to Code Section 414(h)(2), treated as Employer contributions.
For purposes of the EXCESS AMOUNTS SECTION of Article III, the Employer may
elect to use an alternative nondiscriminatory definition of Compensation in
accordance with the regulations under Code Section 414(s).
For purposes of determining the amount of Elective Deferral Contributions,
Compensation shall exclude reimbursements or other expense allowances, fringe
benefits (cash and noncash), moving expenses, deferred compensation and welfare
benefits.
For Plan Years beginning after December 31, 1988, and before January 1, 1994,
the annual Compensation of each Participant taken into account for determining
all benefits provided under the Plan for any year shall not exceed $200,000. For
Plan Years beginning on or after January 1, 1994, the annual Compensation of
each Participant taken into account for determining all benefits provided under
the Plan for any year shall not exceed $150,000.
The $200,000 limit shall be adjusted by the Secretary at the same time and in
the same manner as under Code Section 415(d). The $150,000 limit shall be
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 pay is
determined (determination period) beginning in such calendar year. If a
determination period consists of fewer than 12 months, the annual compensation
limit will be multiplied by a fraction, the numerator of which is the number of
months in the determination period, and the denominator of which is 12.
ARTICLE I 5 (89679)
<PAGE> 8
AMEND. NO. 1 PAGE DTD. 10-16-95
-------------------------------
In determining the Compensation of a Participant for purposes of the annual
compensation limit, the rules of Code Section 414(q)(6) shall apply, except that
in applying such rules, the term "family" shall include only the spouse of the
Participant and any lineal descendants of the Participant who have not attained
age 19 before the close of the year. If, as a result of the application of such
rules the adjusted annual compensation limit is exceeded, then (except for
purposes of determining the portion of Compensation up to the integration level
if this Plan provides for permitted disparity) the limitation shall be prorated
among the affected individuals in proportion to each such individual's
Compensation as determined under this definition prior to the application of
this limitation.
If Compensation for any prior determination period is taken into account in
determining a Participant's benefits accruing in the current Plan Year, the
Compensation for that prior determination period is subject to the annual
compensation limit in effect for that prior determination period. For this
purpose, for determination periods beginning before the first day of the first
Plan Year beginning on or after January 1, 1989, which are used to determine
benefits in Plan Years beginning after December 31, 1988 and before January 1,
1994, the annual compensation limit is $200,000. For this purpose, for
determination periods beginning before the first day of the first Plan Year
beginning on or after January 1, 1994, which are used to determine benefits in
Plan Years beginning on or after January 1, 1994, the annual compensation limit
is $150,000.
Compensation means, for an Employee who is a Leased Employee, the Employee's
Compensation for the services he performs for the Employer, determined in the
same manner as the Compensation of Employees who are not Leased Employees,
regardless of whether such Compensation would be received directly from the
Employer or from the leasing organization.
COMPENSATION YEAR means each one-year period ending on the last day of the Plan
Year, including corresponding periods before February 1, 1990.
CONTINGENT ANNUITANT means an individual named by the Participant to receive a
lifetime benefit after the Participant's death in accordance with a survivorship
life annuity.
CONTRIBUTIONS means
Elective Deferral Contributions
Matching Contributions
Forfeiture Contributions
Rollover Contributions
as set out in Article III, unless the context clearly indicates otherwise.
CONTROLLED GROUP means any group of corporations, trades or businesses of which
the Employer is a part that are under common control. A Controlled Group
includes any group of corporations, trades or businesses, whether or not
incorporated, which is either a parent-subsidiary group, a brother-sister group,
or a combined group within the meaning of Code Section 414(b), Code Section
414(c) and regulations thereunder and, for purposes of determining contribution
limitations under the CONTRIBUTION LIMITATION SECTION of Article III, as
modified by Code Section 415(h) and, for the purpose of identifying Leased
Employees, as modified by Code Section 144(a)(3). The term Controlled Group, as
it is used in this Plan, shall include the term Affiliated Service Group and any
other employer required to be aggregated with the Employer under Code Section
414(o) and the regulations thereunder;
DIRECT ROLLOVER means a payment by the Plan to the Eligible Retirement Plan
specified by the
ARTICLE I 6 (89679)
<PAGE> 9
Distribute.
DISTRIBUTE means an Employee or former Employee. in addition, the Employee's or
former Employee's surviving spouse and the Employee's or former Employee's
spouse or former spouse who is the alternate payee under a qualified domestic
relations order, as defined in Code Section 414(p), are Distributes with regard
to the interest of the spouse or former spouse.
EARLY RETIREMENT DATE means the first day of any month before a Participant's
Normal Retirement Date which the Participant selects for the start of his
retirement benefit. This day shall be on or after the date on which he ceases to
be an Employee and the date he meets the following requirement(s):
a) He has attained age 55.
b) He has completed 6 years of Vesting Service.
ELECTIVE DEFERRAL CONTRIBUTIONS means Contributions made by the Employer to fund
this Plan in accordance with a qualified cash or deferred arrangement as
described in Code Section 401(k). See the EMPLOYER CONTRIBUTIONS SECTION of
Article III.
ELIGIBILITY SERVICE means an Employee's Period of Service. If he has more than
one Period of Service, or if all or a part of a Period of Service is not
counted, his Eligibility Service shall be determined by adjusting his Employment
Commencement Date so that he has one continuous period of Eligibility Service
equal to the aggregate of all his countable Periods of Service. An Employee's
Eligibility Service shall be determined on the basis that 30 days equal one
month and 365 days equal one year.
However, Eligibility Service is modified as follows:
Period of Military Duty included:
A Period of Military Duty shall be included as service with the
Employer to the extent it has not already been credited.
Period of Severance included (service spanning rule):
A Period of Severance shall be deemed to be a Period of Service under
either of the following conditions:
a) the Period of Severance immediately follows a period during
which an Employee is not absent from work and ends within 12
months; or
b) the Period of Severance immediately follows a period during
which an Employee is absent from work for any reason other
than quitting, being discharged or retiring (such as a leave
of absence or layoff) and ends within 12 months of the date
he was first absent.
Controlled Group service included:
An Employee's service with a member firm of a Controlled Group while
both that firm and the Employer were members of the Controlled Group
shall be included as service with the Employer.
ARTICLE I 7 (89679)
<PAGE> 10
AMEND. NO. 1 PAGE DTD. 10-16-95
-------------------------------
ELIGIBLE EMPLOYEE means any Employee of the Employer.
ELIGIBLE RETIREMENT PLAN means an individual retirement account described in
Code Section 408(a), an individual retirement annuity described in Code Section
408(b), an annuity plan described in Code Section 403(a) or a qualified trust
described in Code Section 401 (a), that accepts the Distributes 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.
ELIGIBLE ROLLOVER DISTRIBUTION means any distribution of all or any portion of
the balance to the credit of the Distribute, except that an Eligible Rollover
Distribution does not include:
a) Any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the
life (or life expectancy) of the Distribute or the joint lives (or
joint life expectancies) of the Distribute and the Distributes
designated Beneficiary, or for a specified period of ten years or
more.
b) Any distribution to the extent such distribution is required under
Code Section 401 (a)(9).
c) 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).
EMPLOYEE means an individual who is employed by the Employer or any other
employer required to be aggregated with the Employer under Code Sections 414(b),
(c), (m) or (o). A Controlled Group member is required to be aggregated with the
Employer.
The term Employee shall also include any Leased Employee deemed to be an
employee of any employer described in the preceding paragraph as provided in
Code Sections 414(n) or 414(o).
EMPLOYER means the Primary Employer. This will also include any successor
corporation or firm of the Employer which shall, by written agreement, assume
the obligations of this Plan or any predecessor corporation or firm of the
Employer (absorbed by the Employer, or of which the Employer was once a part)
which became a predecessor because of a change of name, merger, purchase of
stock or purchase of assets and which maintained this Plan.
EMPLOYER CONTRIBUTIONS means
Elective Deferral Contributions
Matching Contributions
Forfeiture Contributions
as set out in Article III, unless the context clearly indicates otherwise.
EMPLOYMENT COMMENCEMENT DATE means the date an Employee first performs an
Hour-of-Service.
ENTRY DATE means the date an Employee first enters the Plan as an Active
Participant. See the ACTIVE PARTICIPANT SECTION of Article II.
FAMILY MEMBER means an individual described in Code Section 414(q)(6)(B).
ARTICLE I 8 (89679)
<PAGE> 11
AMEND. NO. 1 PAGE DTD. 10-16-95
-------------------------------
FISCAL YEAR means the Primary Employer's taxable year. The last day of
the Fiscal Year is December 31.
FORFEITURE means the part, if any, of a Participant's Account that is
forfeited. See the FORFEITURES SECTION of Article Ill.
FORFEITURE CONTRIBUTIONS means the Forfeitures which have been
reallocated as Employer Contributions. For purposes of vesting and
distribution, the Participant's Account resulting from Forfeiture
Contributions shall be treated as if it resulted from Matching
Contributions.
FORFEITURE DATE means, as to a Participant, the date the Participant
incurs five consecutive Vesting Breaks in Service. A Participant incurs
a Vesting Break in Service on the last day of the period used to
determine the Vesting Break in Service.
This is the date on which the Participant's Nonvested Account will be
forfeited unless an earlier forfeiture occurs as provided in the
FORFEITURES SECTION of Article Ill.
GROUP CONTRACT means the group annuity contract or contracts into which
the Trustee enters with the Insurer for the investment of Contributions
and the payment of benefits under this Plan. The term Group Contract as
it is used in this Plan is deemed to include the plural unless the
context clearly indicates otherwise.
HIGHLY COMPENSATED EMPLOYEE means a highly compensated active Employee
or a highly compensated former Employee.
A highly compensated active Employee-means any Employee who performs
service for the Employer during the determination year and who, during
the look-back year:
a) received compensation from the Employer in excess of
$75,000 (as adjusted pursuant to Code Section 415(d));
b) received compensation from the Employer in excess of
$50,000 (as adjusted pursuant to Code Section 415(d))
and was a member of the top-paid group for such year; or
c) was an officer of the Employer and received compensation
during such year that is greater than 50 percent of the
dollar limitation in effect under Code Section
415(b)(1)(A).
The term Highly Compensated Employee also means:
d) Employees who are both described in the preceding
sentence if the term "determination year" is substituted
for the term "look-back year" and the Employee is one of
the 100 Employees who received the most compensation
from the Employer during the determination year; and
e) Employees who are 5 percent owners at any time during
the look-back year or determination year.
If no officer has satisfied the compensation requirement of (c) above
during either a determination year or look-back year, the highest paid
officer for such year shall be treated as a Highly Compensated Employee.
For this purpose, the determination year shall be the Plan Year. The
look-back year shall be the twelve-month period immediately preceding
the determination year.
ARTICLE I 9 (89679)
<PAGE> 12
A highly compensated former Employee means any Employee who separated from
service (or was deemed to have separated) prior to the determination year,
performs no service for the Employer during the determination year, and was a
highly compensated active Employee for either the separation year or any
determination year ending on or after the Employee's 55th birthday.
If an Employee is, during a determination year or look-back year, a family
member of either a 5 percent owner who is an active or former Employee or a
Highly Compensated Employee who is one of the 10 most highly compensated
Employees ranked on the basis of compensation paid by the Employer during such
year, then the family member and the 5 percent owner or top-ten highly
compensated Employee shall be aggregated. In such case, the family member and 5
percent owner or top-ten highly compensated Employee shall be treated as a
single Employee receiving compensation and Plan contributions or benefits equal
to the sum of such compensation and contributions or benefits of the family
member and 5 percent owner or top-ten highly compensated Employee. For purposes
of this definition, family member includes the spouse, lineal ascendants and
descendants of the Employee or former Employee and the spouses of such lineal
ascendants and descendants.
The determination of who is a Highly Compensated Employee, including the
determinations of the number and identity of Employees in the top-paid group,
the top 1 00 Employees, the number of Employees treated as officers and the
compensation that is considered, will be made in accordance with Code Section
414(q) and the regulations thereunder.
HOUR-OF-SERVICE means, for the elapsed time method of crediting service in this
Plan, each hour for which an Employee is paid, or entitled to payment, for
performing duties for the Employer. Hour-of-Service means, for the hours method
of crediting service in this Plan, the following:
a) Each hour for which an Employee is paid, or entitled to payment,
for performing duties for the Employer during the applicable
computation period.
b) Each hour for which an Employee is paid, or entitled to payment,
by the Employer because of a period of time in which no duties
are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, illness,
incapacity (including disability), layoff, jury duty, military
duty or leave of absence. Notwithstanding the preceding
provisions of this subparagraph (b), no credit will be given to
the Employee
1. for more than 501 Hours-of -Service under this
subparagraph (b) because of any single continuous period
in which the Employee performs no duties (whether or not
such period occurs in a single computation period); or
2. for an Hour-of -Service for which the Employee is
directly or indirectly paid, or entitled to payment,
because of a period in which no duties are performed if
such payment is made or due under a plan maintained
solely for the purpose of complying with applicable
worker's or workmen's compensation, or unemployment
compensation or disability insurance laws; or
3. for an Hour-of-Service for a payment which solely
reimburses the Employee for medical or medically related
expenses incurred by him.
ARTICLE I 10 (89679)
<PAGE> 13
For purposes of this subparagraph (b), a payment shall be deemed
to be made by, or due from the Employer, regardless of whether
such payment is made by, or due from the Employer, directly or
indirectly through, among others, a trust fund or insurer, to
which the Employer contributes or pays premiums and regardless
of whether contributions made or due to the trust fund, insurer
or other entity are for the benefit of particular employees or
are on behalf of a group of employees in the aggregate.
c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The
same Hours-of-Service shall not be credited under both
subparagraph (a) or subparagraph (b) above (as the case may be)
and under this subparagraph (c). Crediting of Hours-of-Service
for back pay awarded or agreed to with respect to periods
described in subparagraph (b) above will be subject to the
limitations set forth in that subparagraph.
The crediting of Hours-of-Service above shall be applied under the rules of
paragraphs (b) and (c) of the Department of Labor Regulation 2530.200b-2
(including any interpretations or opinions implementing said rules);which rules,
by this reference, are specifically incorporated in full within this Plan. The
reference to paragraph (b) applies to the special rule for determining hours of
service for reasons other than the performance of duties such as payments
calculated (or not calculated) on the basis of units of time and the rule
against double credit. The reference to paragraph (c) applies to the crediting
of hours of service to computation periods.
Hours-of-Service shall be credited for employment with any other employer
required to be aggregated with the Employer under Code Sections 414(b), (c), (m)
or (o) and the regulations thereunder for purposes of eligibility and vesting.
Hours-of-Service shall also be credited for any individual who is considered an
employee for purposes of this Plan pursuant to Code Section 414(n) or Code
Section 414(o) and the regulations thereunder.
Solely for purposes of determining whether a one-year break in service has
occurred for eligibility or vesting purposes, during a Parental Absence an
Employee shall be credited with the Hours-of-Service which otherwise would
normally have been credited to the Employee but for such absence, or in any case
in which such hours cannot be determined, eight Hours-of-Service per day of such
absence. The Hours-of-Service credited under this paragraph shall be credited in
the computation period in which the absence begins if the crediting is necessary
to prevent a break in service in that period; or in all other cases, in the
following computation period.
INACTIVE PARTICIPANT means a former Active Participant who has an Account. See
the INACTIVE PARTICIPANT SECTION of Article II.
INSURER means Principal Mutual Life Insurance Company and any other insurance
company or companies named by the Trustee or Primary Employer.
INVESTMENT FUND means the total assets held for the purpose of providing
benefits for Participants. These funds result from Contributions made under the
Plan.
INVESTMENT MANAGER means any fiduciary (other than a trustee or Named Fiduciary)
a) who has the power to manage, acquire, or dispose of any assets of
the Plan; and
ARTICLE I 11 (89679)
<PAGE> 14
AMEND. NO. 1 PAGE DTD. 10-16-95
-------------------------------
b) who (1) is registered as an investment adviser under the
Investment Advisers Act of 1940, or (2) is a bank, as defined in
the Investment Advisers Act of 1940, or (3) is an insurance
company qualified to perform services described in subparagraph
(a) above under the laws of more than one state; and
c) who has acknowledged in writing being a fiduciary with respect to
the Plan.
LATE RETIREMENT DATE means the first day of any month which is after a
Participant's Normal Retirement Date and on which retirement benefits
begin. If a Participant continues to work for the Employer after his
Normal Retirement Date, his Late Retirement Date shall be the earliest
first day of the month on or after he ceases to be an Employee. An
earlier or a later Retirement Date may apply if the Participant so
elects. An earlier Retirement Date may apply if the Participant is age
70 1/2. See the WHEN BENEFITS START SECTION of Article V.
LEASED EMPLOYEE means any person (other than an employee of the
recipient) who pursuant to an agreement between the recipient and any
other person ("leasing organization") has performed services for the
recipient (or for the recipient and related persons determined in
accordance with Code Section 414(n)(6)) on a substantially full time
basis for a period of at least one year, and such services are of a type
historically performed by employees in the business field of the
recipient employer. Contributions or benefits provided a Leased Employee
by the leasing organization which are attributable to service performed
for the recipient employer shall be treated as provided by the recipient
employer.
A Leased Employee shall not be considered an employee of the recipient
if:
a) such employee is covered by a money purchase pension plan
providing (1) a nonintegrated employer contribution rate of
at least 1 0 percent of compensation, as defined in Code
Section 415(c)(3), but including amounts contributed
pursuant to a salary reduction agreement which are
excludable from the employee's gross income under Code
Sections 125,402(e)(3), 402(h) or 403(b), (2) immediate
participation, and (3) full and immediate vesting and
b) Leased Employees do not constitute more than 20 percent of
the recipient's nonhighly compensated workforce.
LOAN ADMINISTRATOR means the person or positions authorized to
administer the Participant loan program. The Loan Administrator is
BARBARA J. BURKE.
MATCHING CONTRIBUTIONS means matching contributions made by the Employer
to fund this Plan. See the EMPLOYER CONTRIBUTIONS SECTION of Article
Ill. Matching Contributions are made as Elective Deferral Contributions
are made.
MONTHLY DATE means each Yearly Date and the same day of each following
month during the Plan Year beginning on such Yearly Date.
NAMED FIDUCIARY means the person or persons who have authority to
control and manage the operation and administration of the Plan. The
Named Fiduciary is the Employer.
NONHIGHLY COMPENSATED EMPLOYEE means an Employee of the Employer who is
neither a Highly Compensated Employee nor a Family Member.
ARTICLE I 12 (89679)
<PAGE> 15
NONVESTED ACCOUNT means the part, if any, of a Participant's Account that is in
excess of his Vested Account.
NORMAL FORM means a single life annuity with installment refund.
NORMAL RETIREMENT AGE means the age at which the Participant's normal retirement
benefit becomes nonforfeitable. A Participant's Normal Retirement Age is 65.
NORMAL RETIREMENT DATE means the earliest first day of the month on or after the
date the Participant reaches his Normal Retirement Age. Unless otherwise
provided in this Plan, a Participant's retirement benefits shall begin on a
Participant's Normal Retirement Date if he has ceased to be an Employee on such
date and has a Vested Account. Even if the Participant is an Employee on his
Normal Retirement Date, he may choose to have his retirement benefit begin on
such date. See the WHEN BENEFITS START SECTION of Article V.
PARENTAL ABSENCE means an Employee's absence from work which begins on or after
the first Yearly Date after December 31, 1984,
a) by reason of pregnancy of the Employee,
b) by reason of birth of a child of the Employee,
c) by reason of the placement of a child with the Employee in
connection with adoption of such child by such Employee, or
d) for purposes of caring for such child for a period beginning
immediately following such birth or placement.
PARTICIPANT means either an Active Participant or an Inactive Participant.
PERIOD OF MILITARY DUTY means, for an Employee
a) who served as a member of the armed forces of the United States,
and
b) who was reemployed by the Employer at a time when the Employee
had a right to reemployment in accordance with seniority rights
as protected under Section 2021 through 2026 of Title 38 of the
U. S. Code,
the period of time from the date the Employee was first absent from active work
for the Employer because of such military duty to the date the Employee was
reemployed.
PERIOD OF SERVICE means a period of time beginning on an Employee's Employment
Commencement Date or Reemployment Commencement Date (whichever applies) and
ending on his Severance from Service Date.
ARTICLE I 13 (89679)
<PAGE> 16
AMEND. NO. 2 PAGE DTD. 1-20-97
------------------------------
PERIOD OF SEVERANCE means a period of time beginning on an Employee's
Severance from Service Date and ending on the date he again performs an
Hour-of-Service.
A one-year Period of Severance means a Period of Severance of 12
consecutive months.
Solely for purposes of determining whether a one-year Period of
Severance has occurred for eligibility or vesting purposes, the
12-consecutive month period beginning on the first anniversary of the
first date of a Parental Absence shall not be a one-year Period of
Severance.
PLAN means the retirement savings plan of the Employer set forth in this
document, including any later amendments to it.
PLAN ADMINISTRATOR means the person or persons who administer the Plan.
The Plan Administrator is the Employer.
PLAN YEAR means a period beginning on a Yearly Date and ending on the
day before the next Yearly Date.
PRIMARY EMPLOYER means THE STRONGSVILLE SAVINGS BANK.
QUALIFIED JOINT AND SURVIVOR FORM means, for a Participant who has a
spouse, an immediate survivorship life annuity with installment refund,
where the survivorship percentage is 50% and the Contingent Annuitant is
the Participant's spouse. A former spouse will be treated as the spouse
to the extent provided under a qualified domestic relations order as
described in Code Section 414(p). If a Participant does not have a
spouse, the Qualified Joint and Survivor Form means the Normal Form.
The amount of benefit payable under the Qualified Joint and Survivor
Form shall be the amount of benefit which may be provided by the
Participant's Vested Account.
QUALIFIED PRERETIREMENT SURVIVOR ANNUITY means a single life annuity
with installment refund payable to the surviving spouse of a Participant
who dies before his Annuity Starting Date. A former spouse will be
treated as the surviving spouse to the extent provided under a qualified
domestic relations order as described in Code Section 414(p).
QUALIFYING EMPLOYER SECURITY means any instrument issued by the Employer
and meeting the requirements of Section 4975(e)(8) of the Code.
QUALIFYING EMPLOYER SECURITIES ACCOUNT means for a Participant, his
share of Qualifying Employer Securities.
REEMPLOYMENT COMMENCEMENT DATE means the date an Employee first performs
an Hour-of-Service following a Period of Severance.
REENTRY DATE means the date a former Active Participant reenters the
Plan. See the ACTIVE PARTICIPANT SECTION of Article II.
RETIREMENT DATE means the date a retirement benefit will begin and is a
Participant's Early, Normal or Late Retirement Date, as the case may be.
ROLLOVER CONTRIBUTIONS means the Rollover Contributions which are made
by or for a Participant according to the provisions of the ROLLOVER
CONTRIBUTIONS SECTION of Article Ill.
SEMI-YEARLY DATE means each Yearly Date and the sixth Monthly Date after
each Yearly Date which is within the same Plan Year.
ARTICLE I 14 (89679)
<PAGE> 17
AMEND. NO. 2 PAGE DTD. 1-20-97
------------------------------
SEVERANCE FROM SERVICE DATE means the earlier of
a) the date on which an Employee quits, retires, dies or is
discharged, or
b) the first anniversary of the date an Employee begins a one-year
absence from service (with or without pay). This absence may be
the result of any combination of vacation, holiday, sickness,
disability, leave of absence or layoff.
Solely to determine whether a one-year Period of Severance has occurred for
eligibility or vesting purposes for an Employee who is absent from service
beyond the first anniversary of the first day of a Parental Absence, Severance
from Service Date is the second anniversary of the first day of the Parental
Absence. The period between the first and second anniversaries of the first day
of the Parental Absence is not a Period of Service and is not a Period of
Severance.
TEFRA means the Tax Equity and Fiscal Responsibility Act of 1982.
TEFRA COMPLIANCE DATE means the date a plan is to comply with the provisions of
TEFRA. The TEFRA Compliance Date as used in this Plan is,
a) for purposes of contribution limitations, Code Section 415,
1. if the plan was in effect on July 1, 1982, the first
day of the first limitation year which begins after
December 31, 1982, or
2. if the plan was not in effect on July 1, 1982, the
first day of the first limitation year which ends after
July 1, 1982.
b) for all other purposes, the first Yearly Date after December
31, 1983.
TOTALLY AND PERMANENTLY DISABLED means that a Participant is disabled, as a
result of sickness or injury, to the extent that he is prevented from engaging
in any substantial gainful activity, and is eligible for and receives a
disability benefit under Title 11 of the Federal Social Security Act.
TRUST means an agreement of trust between the Primary Employer and Trustee
established for the purpose of holding and distributing the Trust Fund under the
provisions of the Plan. The Trust may provide for the investment of all or any
portion of the Trust Fund in the Group Contract.
TRUST FUND means the total funds held under the Trust for the purpose of
providing benefits for Participants. These funds result from Contributions made
under the Plan which are forwarded to the Trustee to be deposited in the Trust
Fund.
TRUSTEE means the trustee or trustees under the Trust. The term Trustee as it is
used in this Plan is deemed to include the plural unless the context clearly
indicates otherwise.
VALUATION DATE means for purposes of the date on which the value of the assets
of the Trust is determined. The value of each Account which is maintained under
this Plan shall be determined on the Valuation Date. In each Plan Year the
Valuation Date shall be the close of each business day.
VESTED ACCOUNT means the vested part of a Participant's Account. The
Participant's Vested Account is determined as follows.
ARTICLE I 15 (89679)
<PAGE> 18
If the Participant's Vesting Percentage is 100%, his Vested Account equals his
Account.
If the Participant's Vesting Percentage is less than 100%, his Vested Account
equals the sum of (a) and (b) below:
a) The part of the Participant's Account that results from Employer
Contributions made before a prior Forfeiture Date and all other
Contributions which were 100% vested when made.
b) The balance of the Participant's Account in excess of the amount
in (a) above multiplied by his Vesting Percentage.
If the Participant has withdrawn any part of his Account resulting from Employer
Contributions, other than the vested Employer Contributions included in (a)
above, the amount determined under this subparagraph (b) shall be equal to
P(AB + D) - D as defined below:
P The Participant's Vesting Percentage.
AB The balance of the Participant's Account in excess of the amount
in (a) above.
D The amount of withdrawal resulting from Employer Contributions,
other than the vested Employer Contributions included in (a)
above.
The Participant's Vested Account is nonforfeitable.
VESTING BREAK IN SERVICE means a Vesting Computation Period in which an Employee
is credited with 500 or fewer Hours-of-Service. An Employee incurs a Vesting
Break in Service on the last day of a Vesting Computation Period in which he has
a Vesting Break in Service.
VESTING COMPUTATION PERIOD means a 12-consecutive month period ending on the
last day of each Plan Year, including corresponding 12-consecutive month periods
before February 1, 1990.
VESTING PERCENTAGE means the percentage used to determine the nonforfeitable
portion of a Participant's Account attributable to Employer Contributions which
were not 100% vested when made.
A Participant's Vesting Percentage is shown in the following schedule opposite
the number of whole years of his Vesting Service.
<TABLE>
<CAPTION>
VESTING SERVICE VESTING
(whole years) PERCENTAGE
<S> <C>
Less than 2 0
2 20
3 40
4 60
5 80
6 or more 100
</TABLE>
ARTICLE I 16 (89679)
<PAGE> 19
However, the Vesting Percentage for a Participant who is an Employee on or after
the earliest of (I) the date he reaches his Normal Retirement Age, (ii) the date
of his death, (iii) the date he meets the requirement(s) for an Early Retirement
Date, or (iv) the date he becomes Totally and Permanently Disabled, shall be
100% on such date.
If the schedule used to determine a Participant's Vesting Percentage is changed,
the new schedule shall not apply to a Participant unless he is credited with an
Hour-of-Service on or after the date of the change and the Participant's
nonforfeitable percentage on the day before the date of the change is not
reduced under this Plan. The amendment provisions of the AMENDMENT SECTION of
Article IX regarding changes in the computation of the Vesting Percentage shall
apply.
VESTING SERVICE means one year of service for each Vesting Computation Period in
which an Employee is credited with at least 1,000 Hours-of-Service.
However, Vesting Service is modified as follows:
Period of Military Duty included:
A Period of Military Duty shall be included as service with the Employer
to the extent it has not already been credited. For purposes of
crediting Hours-of-Service during the Period of Military Duty, an
Hour-of-Service shall be credited (without regard to the 501
Hour-of-Service limitation) for each hour an Employee would normally
have been scheduled to work for the Employer during such period.
Controlled Group service included:
An Employee's service with a member firm of a Controlled Group while
both that firm and the Employer were members of the Controlled Group
shall be included as service with the Employer.
YEARLY DATE means February 1, 1990, and each following January 1.
YEARS OF SERVICE means an Employee's Vesting Service disregarding any
modifications which exclude service.
ARTICLE I 17 (89679)
<PAGE> 20
,AMEND. NO. 1 PAGE DTD. 10-16-95
--------------------------------
ARTICLE II
PARTICIPATION
SECTION 2.01 --ACTIVE PARTICIPANT.
a) An Employee shall first become an Active Participant (begin
active participation in the Plan) on the earliest Semi-Yearly
Date on or after October 16, 1995, on which he is an Eligible
Employee and has met both of the eligibility requirements set
forth below. This date is his Entry Date.
1. He has completed six months of Eligibility Service before
his Entry Date.
2. He is age 20 1/2 or older.
Each Employee who was an Active Participant under the Plan on
July 14, 1994, shall continue to be an Active Participant if he
is still an Eligible Employee on July 15, 1994, and his Entry
Date shall not change.
If a person has been an Eligible Employee who has met all the
eligibility requirements above, but is not an Eligible Employee
on the date which would have been his Entry Date, he shall become
an Active Participant on the date he again becomes an Eligible
Employee. This date is his Entry Date.
b) An Inactive Participant shall again become an Active Participant
(resume active participation in the Plan) on the date he again
performs an Hour-of-Service as an Eligible Employee. This date is
his Reentry Date.
Upon again becoming an Active Participant, he shall cease to be an
Inactive Participant.
c) A former Participant shall again become an Active Participant
(resume active participation in the Plan) on the date he again
performs an Hour-of-Service as an Eligible Employee. This date is
his Reentry Date.
There shall be no duplication of benefits for a Participant under this
Plan because of more than one period as an Active Participant.
SECTION 2.02--INACTIVE PARTICIPANT.
An Active Participant shall become an Inactive Participant (stop accruing
benefits under the Plan) on the earlier of the following:
a) The date on which he ceases to be an Eligible Employee (on his
Retirement Date if the date he ceases to be an Eligible Employee
occurs within one month of his Retirement Date).
b) The effective date of complete termination of the Plan.
ARTICLE II 18 (89679)
<PAGE> 21
An Employee or former Employee who was an Inactive Participant under the Plan on
July 14, 1994, shall continue to be an inactive Participant on July l5, 1994.
Eligibility for any benefits payable to him or on his behalf and the amount of
the benefits shall be determined according to the provisions of the prior
document, unless otherwise stated in this document.
SECTION 2.03--CESSATION OF PARTICIPATION.
A Participant shall cease to be a Participant on the date he is no longer
an Eligible Employee and his Account is zero.
ARTICLE II 19 (89679)
<PAGE> 22
AMEND. NO. 1 PAGE DTD. 10-16-95
ARTICLE III
CONTRIBUTIONS
SECTION 3.01--EMPLOYER CONTRIBUTIONS.
Employer Contributions for Plan Years which end on or after July 15, 1994,
may be made without regard to current or accumulated net income, earnings, or
profits of the Employer. Not withstanding the foregoing, the Plan shall continue
to be designed to qualify as a profit sharing plan for purposes of Code Sections
401 (a), 402, 412, and 417. Such Contributions will be equal to the Employer
Contributions as described below:
a) The amount of each Elective Deferral Contribution for a
Participant shall be equal to any percentage (not more than 15%)
of his Compensation for the pay period as elected in his elective
deferral agreement. An Employee who is eligible to participate in
the Plan may file an elective deferral agreement with the
Employer. The elective deferral agreement to start Elective
Deferral Contributions may be effective on a Participant's Entry
Date (Reentry Date, if applicable) or any following date. The
Participant shall make any change or terminate the elective
deferral agreement by filing a new elective deferral agreement. A
Participant's elective deferral agreement making a change may be
effective on any date an elective deferral agreement to start
Elective Deferral Contributions could be effective. A
Participant's elective deferral agreement to stop Elective
Deferral Contributions may be effective on any date. The elective
deferral agreement must be in writing and completed before the
beginning of the pay period in which Elective Deferral
Contributions are to start, change, or stop.
Elective Deferral Contributions are fully (100%) vested and nonforfeitable.
b) The amount of each Matching Contribution for a Participant shall
be equal to 60% of the Elective Deferral Contributions made for
him for the pay period, disregarding any Elective Deferral
Contributions in excess of 5% of his Compensation for the pay
period.
Matching Contributions are subject to the Vesting Percentage.
No Participant shall be permitted to have Elective Deferral Contributions,
as defined in the EXCESS AMOUNTS SECTION of Article 111, made under this Plan,
or any other qualified plan maintained by the Employer, during any taxable year,
in excess of the dollar limitation contained in Code Section 402(g) in effect at
the beginning of such taxable year.
The Employer shall pay to the Trustee its Contributions used to determine
the Actual Deferral Percentage, as defined in the EXCESS AMOUNTS SECTION of
Article III, to the Plan for each Plan Year not later than the end of the
twelve-month period immediately following the Plan Year for which they are
deemed to be paid. Any such Contributions accumulated through payroll deductions
shall be paid within 90 days of the date withheld or the date it is first
reasonably practical for the Employer to do so, if earlier.
ARTICLE III 20 (89679)
<PAGE> 23
A portion of the Plan assets resulting from Employer Contributions (but not more
than the original amount of those Contributions) may be returned if the Employer
Contributions are made because of a mistake of fact or are more than the amount
deductible under Code Section 404 (excluding any amount which is not deductible
because the plan is disqualified). The amount involved must be returned to the
Employer within one year after the date the Employer Contributions are made by
mistake of fact or the date the deduction is disallowed, whichever applies.
Except as provided under this paragraph and Article VII, the assets of the Plan
shall never be used for the benefit of the Employer and are held for the
exclusive purpose of providing benefits to Participants and their Beneficiaries
and for defraying reasonable expenses of administering the Plan.
SECTION 3.01A--ROLLOVER CONTRIBUTIONS.
A Rollover Contribution may be made by or for an Eligible Employee if the
following conditions are met:
a) The Contribution is a rollover contribution which the Code permits to
be transferred to a plan that meets the requirements of Code Section
401 (a).
b) If the Contribution is made by the Eligible Employee, it is made
within sixty days after he receives the distribution.
c) The Eligible Employee furnishes evidence satisfactory to the Plan
Administrator that the proposed transfer is in fact a rollover
contribution that meets conditions (a) and (b) above.
The Rollover Contribution may be made by the Eligible Employee or the
Eligible Employee may direct the trustee or named fiduciary of another plan to
transfer the funds which would otherwise be a Rollover Contribution directly to
this Plan. Such transferred funds shall be called a Rollover Contribution. The
Contribution shall be made according to procedures set up by the Plan
Administrator.
If the Eligible Employee is not an Active Participant at the time the
Rollover Contribution is made, he shall be deemed to be a Participant only for
the purposes of investment and distribution of the Rollover Contribution. He
shall not share in the allocation of Employer Contributions until the time he
meets all the requirements to become an Active Participant.
Rollover Contributions made by or for an Eligible Employee shall be
credited to his Account. The part of the Participant's Account resulting from
Rollover Contributions is fully (100%) vested and nonforfeitable at all times. A
separate accounting record shall be maintained for that part of his Rollover
Contribution which consists of voluntary contributions that were deducted from
the Participant's gross income for Federal income tax purposes.
SECTION 3.02--FORFEITURES.
The Nonvested Account of a participant shall be forfeited as of the earlier
of the following: the date of the Participant's death, if prior to such date he
had ceased to be an Employee; or his Forfeiture Date. All or a part of a
Participant's Nonvested Account will be forfeited if, after he ceases to be an
Employee, he receives a distribution of his entire Vested Account or a
distribution of his Vested Account derived from Employer Contributions which
were not 100% vested when made according to the provisions of the VESTED
BENEFITS SECTION of Article V or the SMALL AMOUNTS SECTION of Article IX. If a
Participant's Vested Account is zero on the date he ceases to be an Employee, he
shall be deemed to have received a distribution of his entire Vested Account on
such date. The forfeiture will occur as of the date he receives the distribution
or on the date such provision became effective, if later. If he receives a
distribution of his entire Vested Account, his entire Nonvested Account will be
forfeited. If he receives a distribution of his Vested Account from Employer
ARTICLE III 21 (89679)
<PAGE> 24
AMEND. NO. 1 PAGE DTD. 10-16-95
-------------------------------
Contributions which were not 100% vested when made, but less than his entire
Vested Account, the amount to be forfeited will be determined by multiplying his
Nonvested Account by a fraction. The numerator of the fraction is the amount of
the distribution derived from Employer Contributions which were not 100% vested
when made and the denominator of the fraction is his entire Vested Account
derived from such Employer Contributions on the date of distribution.
A Forfeiture shall also occur as described in the EXCESS AMOUNTS SECTION
of Article III.
Forfeitures may first be applied to pay administrative expenses under the
Plan which would otherwise be paid by the Employer.
Forfeitures not used to pay administrative expenses shall be allocated as
described in the ALLOCATION SECTION of Article III as of the last day of the
Plan Year in which they arise. Upon such allocation, such Forfeitures shall be
deemed to be Forfeiture Contributions. Forfeiture Contributions shall be
invested into the Employer's Money Market Account as allowed under the Group
Contract.
Forfeitures of Matching Contributions which relate to excess amounts shall
be applied as provided in the EXCESS AMOUNTS SECTION of Article III.
If a Participant again becomes an Eligible Employee after receiving a
distribution which caused his Nonvested Account to be forfeited, he shall have
the right to repay to the Plan the entire amount of the distribution he received
(excluding any amount of such distribution resulting from Contributions which
were 100% vested when made). The repayment must be made before the earlier of
the date five years after the date he again becomes an Eligible Employee or the
end of the first period of five consecutive Vesting Breaks in Service which
begin after the date of the distribution.
If the Participant makes the repayment provided above, the Plan
Administrator shall restore to his Account an amount equal to his Nonvested
Account which was forfeited on the date of distribution, unadjusted for any
investment gains or losses. If the amount of the repayment is zero dollars
because the Participant was deemed to have received a distribution or the plan
did not have repayment provisions in effect on the date the distribution was
made and he again performs an Hour-of-Service as an Eligible Employee within the
repayment period, the Plan Administrator shall restore the Participant's Account
as if he had made a required repayment on the date he performed such
Hour-of-Service. Restoration of the Participant's Account shall include
restoration of all Code Section 411 (d)(6) protected benefits with respect to
that restored Account, according to applicable Treasury regulations. Provided,
however, the Plan Administrator shall not restore the Nonvested Account if a
Forfeiture Date has occurred after the date of the distribution and on or before
the date of repayment and that Forfeiture Date would result in a complete
forfeiture of the amount the Plan Administrator would otherwise restore.
The Plan Administrator shall restore the Participant's Account by the
close of the Plan Year following the Plan Year in which repayment is made.
Permissible sources for restoration are Forfeitures or Employer Contributions.
The Employer shall contribute, without regard to any requirement or condition of
the EMPLOYER CONTRIBUTIONS SECTION of Article III, such additional amount needed
to make the required restoration. The repaid and restored amounts are not
included in the Participant's Annual Addition, as defined in the CONTRIBUTION
LIMITATION SECTION of Article III.
ARTICLE III 22 (89679)
<PAGE> 25
AMEND. NO. 1 PAGE DTD. 10-16-95
-------------------------------
SECTION 3.03--ALLOCATION.
Any Forfeitures released for allocation for the Plan Year shall be
allocated among all eligible persons. The eligible persons are all Participants
who had 1,000 or more Hours-of-Service in the Accrual Computation Period that
ends in the Plan Year and who are Active Participants on the last day of the
Plan Year.
The following Contributions for each Plan Year shall be allocated to each
Participant for whom such Contributions were made under the EMPLOYER
CONTRIBUTIONS SECTION of Article III:
Elective Deferral Contributions
Matching Contributions
These Contributions shall be allocated when made and credited to the
Participant's Account.
Forfeitures are allocated as of the last day of each Plan Year. The amount
allocated to each eligible person for the Plan Year shall be equal to
Forfeitures for the Plan Year, multiplied by the ratio of (a) his Annual
Compensation as of the last day of the Plan Year to (b) the total of such Annual
Compensation for all eligible persons. This amount is credited to his Account.
In determining the amount of Employer Contributions to be allocated to a
Participant who is a Leased Employee, contributions and benefits provided by the
leasing organization which are attributable to services such Leased Employee
performs for the Employer shall be treated as provided by the Employer and there
shall be no duplication of those contributions or benefits under this Plan.
SECTION 3.04--CONTRIBUTION LIMITATION.
a) For the purpose of determining the contribution limitation set
forth in this section, the following terms are defined:
AGGREGATE ANNUAL ADDITION means, for a Participant with respect to any
Limitation Year, the sum of his Annual Additions under all defined
contribution plans of the Employer, as defined in this section, for such
Limitation Year. The nondeductible participant contributions which the
Participant makes to a defined benefit plan shall be treated as Annual
Additions to a defined contribution plan. The Contributions the
Employer, as defined in this section, made for the Participant for a
Plan Year beginning on or after March 31, 1984, to an individual medical
benefit account, as defined in Code Section 415(I)(2), under a pension
or annuity plan of the Employer, as defined in this section, shall be
treated as Annual Additions to a defined contribution plan. Also,
amounts derived from contributions paid or accrued after December 31,
1985, in Fiscal 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, as defined in this section, are treated as Annual Additions to
a defined contribution plan. The 25% of Compensation limit under Maximum
Permissible Amount does not apply to Annual Additions resulting from
contributions made to an individual medical account, as defined in Code
Section 415(l)(2), or to Annual Additions resulting from contributions
for medical benefits, within the meaning of Code Section 419A, after
separation from service.
ANNUAL ADDITION means the amount added to a Participant's account for
any Limitation Year which may not exceed the Maximum Permissible Amount.
The Annual Addition under any plan for a Participant with respect to any
Limitation Year, shall be equal to the sum of (1) and (2) below:
1. Employer contributions and forfeitures credited to his
account for the Limitation Year.
2. Participant contributions made by him for the Limitation
Year.
ARTICLE III 23 (89679)
<PAGE> 26
Before the first Limitation Year beginning after December 31, 1986, the amount
under (2) above is the lesser of (i) 1/2 of his nondeductible participant
contributions made for the Limitation Year, or (ii) the amount, if any, of his
nondeductible participant contributions made for the Limitation Year which is in
excess of six percent of his Compensation, as defined in this section, for such
Limitation Year.
COMPENSATION means all wages for Federal income tax withholding purposes, as
defined under Code Section 3401 (a) (for purposes of income tax withholding at
the source), disregarding any rules limiting the remuneration included as wages
based on the nature or location of the employment or the services performed.
Compensation also includes all other payments to an Employee in the course of
the Employer's trade or business, for which the Employer must furnish the
Employee a written statement under Code Sections 6041(d) and 6051(a)(3). The
amount reported in the "Wages, Tips and Other Compensation" box on Form W-2
satisfies this definition.
For any self-employed individual Compensation will mean earned income.
For purposes of applying the limitations of this section, Compensation for a
Limitation Year is the Compensation actually paid or made available during such
Limitation Year.
DEFINED BENEFIT PLAN FRACTION means, with respect to a Limitation Year for a
Participant who is or has been a participant in a defined benefit plan ever
maintained by the Employer, as defined in this section, the quotient, expressed
as a decimal, of
1. the Participant's Projected Annual Benefit under all such plans as of the
close of such Limitation Year, divided by
2. on and after the TEFRA Compliance Date, the lesser of (i) or (ii) below:
i. 1.25 multiplied by the maximum dollar limitation which applies to
defined benefit plans determined for the Limitation Year under Code
Sections 415(b) or (d) or
ii. 1.4 multiplied by the Participant's highest average compensation as
defined in the defined benefit plan(s),
including any adjustments under Code Section 415(b).
Before the TEFRA Compliance Date, this denominator is the Participant's
Projected Annual Benefit as of the close of the Limitation Year if the
plan(s) provided the maximum benefit allowable.
The Defined Benefit Plan Fraction shall be modified as follows:
If the Participant was a participant as of the first day of the first Limitation
Year beginning after December 31, 1986, in one or more defined benefit plans
maintained by the Employer, as defined in this section, which were in existence
on May 6, 1 986, the denominator of this fraction will not be less than 125
percent of the sum of the annual benefits under such plans which the Participant
had accrued as of the close of the last Limitation Year beginning before January
1, 1987, disregarding any changes in the terms and conditions of the plan after
May 5, 1986. The preceding sentence applies only if the defined benefit plans
individually and in the aggregate satisfied the requirements of Code Section 415
for all Limitation Years beginning before January 1, 1987.
ARTICLE III 24 (89679)
<PAGE> 27
DEFINED CONTRIBUTION PLAN Fraction means, for a Participant with respect to a
Limitation Year, the quotient, expressed as a decimal, of
1. the Participant's Aggregate Annual Additions for such Limitation Year
and all prior Limitation Years, under all defined contribution plans
(including the Aggregate Annual Additions attributable to nondeductible
accounts under defined benefit plans and attributable to all welfare
benefit funds, as defined in Code Section 419(e) and attributable to
individual medical accounts, as defined in Code Section 415 (1) (2))
ever maintained by the Employer, as defined in this section, divided by
2. on and after the TEFRA Compliance Date, the sum of the amount determined
for the Limitation Year under (i) or (ii) below, whichever is less, and
the amounts determined in the same manner for all prior Limitation Years
during which he has been an Employee or an employee of a predecessor
employer:
i. 1.25 multiplied by the maximum permissible dollar amount for each
such Limitation Year, or
ii. 1.4 multiplied by the maximum permissible percentage of the
Participant's Compensation, as defined in this section, for each
such Limitation Year.
Before the TEFRA Compliance Date, this denominator is the sum of the
maximum allowable amount of Annual Addition to his account(s) under all
the plan(s) of the Employer, as defined in this section, for each such
Limitation Year.
The Defined Contribution Plan Fraction shall be modified as follows:
If the Participant was a participant as of the first day of the first Limitation
Year beginning after December 31, 1986, in one or more defined contribution
plans maintained by the Employer, as defined in this section, which were in
existence on May 6, 1986, the numerator of this fraction shall be adjusted if
the sum of the Defined Contribution Plan Fraction and Defined Benefit Plan
Fraction would otherwise exceed 1.0 under the terms of this Plan. Under the
adjustment, the dollar amount determined below shall be permanently subtracted
from the numerator of this fraction. The dollar amount is equal to the excess of
the sum of the two fractions, before adjustment, over 1.0 multiplied by the
denominator of his Defined Contribution Plan Fraction. The adjustment is
calculated using his Defined Contribution Plan Fraction and Defined Benefit Plan
Fraction as they would be computed as of the end of the last Limitation Year
beginning before January 1, 1987, and disregarding any changes in the terms and
conditions of the plan made after May 5, 1986, but using the Code Section 415
limitations applicable to the first Limitation Year beginning on or after
January 1, 1987.
The Annual Addition for any Limitation Year beginning before January 1, 1987,
shall not be recomputed to treat all employee contributions as Annual Additions.
ARTICLE III 25 (89679)
<PAGE> 28
For a plan that was in existence on July 1, 1982, for purposes of determining
the Defined Contribution Plan Fraction for any Limitation Year ending after
December 31, 1982, the Plan Administrator may elect, in accordance with the
provisions of Code Section 415, that the denominator for each Participant for
all Limitation Years ending before January 1, 1983, will be equal to
1. the Defined Contribution Plan Fraction denominator which would apply for
the last Limitation Year ending in 1982 if an election under this
paragraph were not made, multiplied by
2. a fraction, equal to (i) over (ii) below:
i. the lesser of (A) $51,875, or (B) 1.4, multiplied by 25% of the
Participant's Compensation, as defined in this section, for the
Limitation Year ending in 1981;
ii. the lesser of (A) $41,500, or (B) 25% of the Participant's
Compensation, as defined in this section, for the Limitation Year
ending in 1981.
The election described above is applicable only if the plan administrators under
all defined contribution plans of the Employer, as defined in this section, also
elect to use the modified fraction.
Employer means any employer that adopts this Plan and all Controlled Group
members and any other entity required to be aggregated with the employer
pursuant to regulations under Code Section 414(o).
LIMITATION YEAR means the 12-consecutive month period within which it is
determined whether or not the limitations of Code Section 415 are exceeded.
Limitation Year means each 12-consecutive month period ending on December 31. If
the Limitation Year is other than the calendar year, execution of this Plan (or
any amendment to this Plan changing the Limitation Year) constitutes the
Employer's adoption of a written resolution electing the Limitation Year. If the
Limitation Year is changed, the new Limitation Year shall begin within the
current Limitation Year, creating a short Limitation Year.
MAXIMUM PERMISSIBLE AMOUNT means, for a Participant with respect to any
Limitation Year, the lesser of (1) or (2) below:
1. The greater of $30,000 or one-fourth of the maximum dollar limitation
which applies to defined benefit plans set forth in Code Section
4l5(b)(1) as in effect for the Limitation Year. (Before the TEFRA
Compliance Date, $25,000 multiplied by the cost of living adjustment
factor permitted by Federal regulations.)
2. 25% of his Compensation, as defined in this section, for such Limitation
Year.
The compensation limitation referred to in (2) shall not apply to any
contribution for medical benefits (within the meaning of Code Section 401(h) or
Code Section 419A(f)(2)) which is otherwise treated as an annual addition under
Code Section 415(I)(1) or Code Section 419A(d)(2).
ARTICLE III 26 (89679)
<PAGE> 29
AMEND. NO. 1 PAGE DTD. 10-16-95
-------------------------------
If there is a short Limitation Year because of a change in Limitation
Year, the Maximum Permissible Amount will not exceed the maximum dollar
limitation which would otherwise apply multiplied by the following
fraction:
Number of months in the short Limitation Year
---------------------------------------------
12
PROJECTED ANNUAL BENEFIT means a Participant's expected annual benefit
under all defined benefit plan(s) ever maintained by the Employer, as
defined in this section. The Projected Annual Benefit shall be determined
assuming that the Participant will continue employment until the later of
current age or normal retirement age under such plan(s), and that the
Participant's compensation for the current Limitation Year and all other
relevant factors used to determine benefits under such plan(s) will
remain constant for all future Limitation Years. Such expected annual
benefit shall be adjusted to the actuarial equivalent of a straightlife
annuity if expressed in a form other than a straightlife or qualified
joint and survivor annuity.
b) The Annual Addition under this Plan for a Participant during a Limitation
Year shall not be more than the Maximum Permissible Amount.
c) Contributions and Forfeitures which would otherwise be credited to the
Participant's Account shall be limited or reallocated to the extent
necessary to meet the restrictions of subparagraph (b) above for any
Limitation Year in the following order. Forfeitures shall be reallocated
in the same manner as described in the ALLOCATION SECTION of Article III
to the remaining Participants to whom the limitations do not apply for
the Limitation Year. Elective Deferral Contributions that are not the
basis for Matching Contributions shall be limited. Matching Contributions
shall be limited to the extent necessary to limit the Participant's
Annual Addition under this Plan to his maximum amount. If Matching
Contributions are limited because of this limit, Elective Deferral
Contributions that are the basis for Matching Contributions shall be
reduced in proportion.
If, due to (i) an error in estimating a Participant's Compensation as defined in
this section, (ii) because the amount of the Forfeitures to be used to offset
Employer Contributions is more than the amount of the Employer Contributions due
for the remaining Participants, (iii) as a result of a reasonable error in
determining the amount of elective deferrals (within the meaning of Code Section
402(g)(3)) that may be made with respect to any individual under the limits of
Code Section 415, or (iv) other limited facts and circumstances, a Participant's
Annual Addition is greater than the amount permitted in (b) above, such excess
amount shall be applied as follows. Elective Deferral Contributions will be
returned to the participant. Matching Contributions based on Elective Deferral
Contributions which are returned shall be forfeited. If after the return of
Elective Deferral Contributions, an excess amount still exists, and the
Participant is an Active Participant as of the end of the Limitation Year, the
excess amount shall be used to offset Employer Contributions for him in the next
Limitation Year. If after the return of Elective Deferral Contributions, an
excess amount still exists, and the Participant is not an Active Participant as
of the end of the Limitation Year, the excess amount will be held in a suspense
account which will be used to offset Employer Contributions for all Participants
in the next Limitation Year. No Employer Contributions that would be included in
the next Limitation Year's Annual Addition may be made before the total suspense
account has been used.
d) A Participant's Aggregate Annual Addition for a Limitation Year shall not
exceed the Maximum Permissible Amount.
ARTICLE III 27 (89679)
<PAGE> 30
If, for the Limitation Year, the Participant has an Annual Addition under
more than one defined contribution plan or a welfare benefit fund, as
defined in Code Section 4l9(e), or an individual medical account, as
defined in Code Section 415(I)(2), maintained by the Employer, as defined
in this section, and such plans and welfare benefit funds and individual
medical accounts do not otherwise limit the Aggregate Annual Addition to
the Maximum Permissible Amount, any reduction necessary shall be made
first to the profit sharing plans, then to all other such plans and
welfare benefit funds and individual medical accounts and, if necessary,
by reducing first those that were most recently allocated. Welfare
benefit funds and individual medical accounts shall be deemed to be
allocated first. However, elective deferral contributions shall be the
last contributions reduced before the welfare benefit fund or individual
medical account is reduced.
If some of the Employer's defined contribution plans were not in
existence on July 1, 1982, and some were in existence on that date, the
Maximum Permissible Amount which is based on a dollar amount may differ
for a Limitation Year. The Aggregate Annual Addition for the Limitation
Year in which the dollar limit differs shall not exceed the lesser of (1)
25% of Compensation as defined in this section, (2) $45,475, or (3) the
greater of $30,000 or the sum of the Annual Additions for such Limitation
Year under all the plan(s) to which the $45,475 amount applies.
e) If a Participant is or has been a participant in both defined benefit and
defined contribution plans (including a welfare benefit fund or
individual medical account) ever maintained by the Employer, as defined
in this section, the sum of the Defined Benefit Plan Fraction and the
Defined Contribution Plan Fraction for any Limitation Year shall not
exceed 1.0 (1.4 before the TEFRA Compliance Date).
After all other limitations set out in the plans and funds have been applied,
the following limitations shall apply so that the sum of the Participant's
Defined Benefit Plan Fraction and Defined Contribution Plan Fraction shall not
exceed 1.0 (1.4 before the TEFRA Compliance Date). The Projected Annual Benefit
shall be limited first. If the Participant's annual benefit(s) equal his
Projected Annual Benefit, as limited, then Annual Additions to the defined
contribution plan(s) shall be limited to the extent needed to reduce the sum to
1.0 (1.4). First, the voluntary contributions the Participant may make for the
Limitation Year shall be limited. Next, in the case of a profit sharing plan,
any forfeitures allocated to the Participant shall be reallocated to remaining
participants to the extent necessary to reduce the decimal to 1.0 (1.4). Last,
to the extent necessary, employer contributions for the Limitation Year shall be
reallocated or limited, and any required and optional employee contributions to
which such employer contributions were geared shall be reduced in proportion.
If, for the Limitation Year, the Participant has an Annual Addition under more
than one defined contribution plan or welfare benefit fund or individual medical
account maintained by the Employer, as defined in this section, any reduction
above shall be made first to the profit sharing plans, then to all other such
plans and welfare benefit plans and individual medical accounts and, if
necessary, by reducing first those that were most recently allocated. However,
elective deferral contributions shall be the last contributions reduced before
the welfare benefit fund or individual medical account is reduced. The annual
addition to the welfare benefit fund and individual medical account shall be
limited last.
ARTICLE III 28 (89679)
<PAGE> 31
SECTION 3.05--EXCESS AMOUNTS.
a) For the purposes of this section, the following terms are defined:
ACTUAL DEFERRAL PERCENTAGE means the ratio (expressed as a percentage) of
Elective Deferral Contributions under this Plan on behalf of the
Eligible Participant for the Plan Year to the Eligible
Participant's Compensation for the Plan Year. In modification of
the foregoing, Compensation shall be limited to the Compensation
received while an Active Participant. The Elective Deferral
Contributions used to determine the Actual Deferral Percentage
shall include Excess Elective Deferrals (other than Excess
Elective Deferrals of Nonhighly Compensated Employees that arise
solely from Elective Deferral Contributions made under this Plan
or any other plans of the Employer or a Controlled Group Member),
but shall exclude Elective Deferral Contributions that are used in
computing the Contribution Percentage (provided the Average Actual
Deferral Percentage test is satisfied both with and without
exclusion of these Elective Deferral Contributions). Under such
rules as the Secretary of the Treasury shall prescribe in Code
Section 401(k)(3)(D), the Employer may elect to include Qualified
Nonelective Contributions and Qualified Matching Contributions
under this Plan in computing the Actual Deferral Percentage. For
an Eligible Participant for whom such Contributions on his behalf
for the Plan Year are zero, the percentage is zero.
AGGREGATE Limit means the greater of (1) or (2) below:
1. The sum of
i. 125 percent of the greater of the Average Actual
Deferral Percentage of the Nonhighly Compensated
Employees for the Plan Year or the Average
Contribution Percentage of Nonhighly Compensated
Employees under the Plan subject to Code Section
401(m) for the Plan Year beginning with or within
the Plan Year of the cash or deferred arrangement
and
ii the lesser of 200% or two plus the lesser of such
Average Actual Deferral Percentage or Average
Contribution Percentage.
2. The sum of
i. 125 percent of the lesser of the Average Actual
Deferral Percentage of the Nonhighly Compensated
Employees for the Plan Year or the Average
Contribution Percentage of Nonhighly Compensated
Employees under the Plan subject to Code Section
401(m) for the Plan Year beginning with or within
the Plan Year of the cash or deferred arrangement
and
ii. the lesser of 200% or two plus the greater of such
Average Actual Deferral Percentage or Average
Contribution Percentage.
AVERAGE ACTUAL DEFERRAL PERCENTAGE means the average (expressed
as a percentage) of the Actual Deferral Percentages of the
Eligible Participants in a group.
AVERAGE CONTRIBUTION PERCENTAGE means the average (expressed as a
percentage) of the Contribution Percentages of the Eligible
Participants in a group.
ARTICLE III 29 (89679)
<PAGE> 32
CONTRIBUTION PERCENTAGE means the ratio (expressed as a percentage) of the
Eligible Participant's Contribution Percentage Amounts to the Eligible
Participant's Compensation for the Plan Year. In modification of the foregoing,
Compensation shall be limited to the Compensation received while an Active
Participant. For an Eligible Participant for whom such Contribution Percentage
Amounts for the Plan Year are zero, the percentage is zero.
CONTRIBUTION PERCENTAGE Amounts means the sum of the Participant Contributions
and Matching Contributions (that are not Qualified Matching Contributions) under
this Plan on behalf of the Eligible Participant for the Plan Year. Such
Contribution Percentage Amounts shall not include Matching Contributions that
are forfeited either to correct Excess Aggregate Contributions or because the
Contributions to which they relate are Excess Elective Deferrals, Excess
Contributions or Excess Aggregate Contributions. Under such rules as the
Secretary of the Treasury shall prescribe in Code Section 401(k)(3)(D), the
Employer may elect to include Qualified Nonelective Contributions and Qualified
Matching Contributions under this Plan which were not used in computing the
Actual Deferral Percentage in computing the Contribution Percentage. The
Employer may also elect to use Elective Deferral Contributions in computing the
Contribution Percentage so long as the Average Actual Deferral Percentage test
is met before the Elective Deferral Contributions are used in the Average
Contribution Percentage test and continues to be met following the exclusion of
those Elective Deferral Contributions that are used to meet the Average
Contribution Percentage test.
ELECTIVE DEFERRAL CONTRIBUTIONS means employer contributions made on behalf of a
participant pursuant to an election to defer under any qualified cash or
deferred arrangement as described in Code Section 401(k), any simplified
employee pension cash or deferred arrangement as described in Code Section
402(h)(1)(B), any eligible deferred compensation plan under Code Section 457,
any plan as described under Code Section 501(c)(18), and any employer
contributions made on behalf of a participant for the purchase of an annuity
contract under Code Section 403(b) pursuant to a salary reduction agreement.
Elective Deferral Contributions shall not include any deferrals properly
distributed as excess Annual Additions.
ELIGIBLE PARTICIPANT means, for purposes of determining the Actual Deferral
Percentage, any Employee who is otherwise authorized under the terms of the Plan
to have Elective Deferral Contributions made on his behalf for the Plan Year.
Eligible Participant means, for purposes of determining the Average Contribution
Percentage, any Employee who is otherwise authorized under the terms of the Plan
to have Participant Contributions or Matching Contributions made on his behalf
for the Plan Year.
EXCESS AGGREGATE CONTRIBUTIONS means, with respect to any Plan Year, the excess
of:
1. The aggregate Contributions taken into account in computing the numerator
of the Contribution Percentage actually made on behalf of Highly
Compensated Employees for such Plan Year, over
2. The maximum amount of such Contributions permitted by the Average
Contribution Percentage test (determined by reducing Contributions made
on behalf of Highly Compensated Employees in order of their Contribution
Percentages beginning with the highest of such percentages).
ARTICLE III 30 (89679)
<PAGE> 33
Such determination shall be made after first determining Excess Elective
Deferrals and then determining Excess Contributions.
EXCESS CONTRIBUTIONS means, with respect to any Plan Year, the excess of:
1. The aggregate amount of Contributions actually taken into account
in computing the Actual Deferral Percentage of Highly Compensated
Employees for such Plan Year, over
2. The maximum amount of such Contributions permitted by the Actual
Deferral Percentage test (determined by reducing Contributions made
on behalf of Highly Compensated Employees in order of the Actual
Deferral Percentages, beginning with the highest of such
percentages).
A Participant's Excess Contributions for a Plan Year will be reduced by
the amount of Excess Elective Deferrals, if any, previously distributed
to the Participant for the taxable year ending in that Plan Year.
EXCESS ELECTIVE DEFERRALS means those Elective Deferral Contributions
that are includable in a Participant's gross income under Code Section
402(g) to the extent such Participant's Elective Deferral Contributions
for a taxable year exceed the dollar limitation under such Code section.
Excess Elective Deferrals shall be treated as Annual Additions, as
defined in the CONTRIBUTION LIMITATION SECTION of Article III, under the
Plan, unless such amounts are distributed no later than the first April
15 following the close of the Participant's taxable year.
PARTICIPANT CONTRIBUTIONS means contributions made to any plan by or on
behalf of a participant that are included in the participant's gross
income in the year in which made and that are maintained under a separate
account to which earnings and losses are allocated.
MATCHING CONTRIBUTIONS means employer contributions made to this or any
other defined contribution plan, or to a contract described in Code
Section 403(b), on behalf of a participant on account of a Participant
Contribution made by such participant, or on account of a participant's
Elective Deferral Contributions, under a plan maintained by the employer.
QUALIFIED MATCHING CONTRIBUTIONS means Matching Contributions which are
subject to the distribution and nonforfeitability requirements under Code
Section 401(k) when made.
QUALIFIED NONELECTIVE CONTRIBUTIONS means any employer contributions
(other than Matching Contributions) which an employee may not elect to
have paid to him in cash instead of being contributed to the plan and
which are subject to the distribution and nonforfeitability requirements
under Code Section 401(k).
b) A Participant may assign to this Plan any Excess Elective Deferrals made
during a taxable year by notifying the Plan Administrator in writing on
or before the first following March 1 of the amount of the Excess
Elective Deferrals to be assigned to the Plan. A Participant is deemed to
notify the Plan Administrator of any Excess Elective Deferrals that arise
by taking into account only those Elective Deferral Contributions made to
this Plan and any other plans of the Employer or a Controlled Group
member and reducing such Excess Elective Deferrals by the amount of
Excess Contributions, if any, previously distributed for the Plan Year
beginning in that taxable year. The Participant's claim for Excess
Elective Deferrals shall be accompanied by the Participant's written
statement that if such amounts are not distributed, such Excess Elective
Deferrals, when added to amounts deferred under
ARTICLE III 31 (89679)
<PAGE> 34
other plans or arrangements described in Code Sections 401(k), 408(k) or
403(b), will exceed the limit imposed on the Participant by Code Section
402(g) for the year in which the deferral occurred. The Excess Elective
Deferrals assigned to this Plan can not exceed the Elective Deferral
Contributions allocated under this Plan for such taxable year.
Notwithstanding any other provisions of the Plan, Elective Deferral
Contributions in an amount equal to the Excess Elective Deferrals
assigned to this Plan, plus any income and minus any loss allocable
thereto, shall be distributed no later than April 15 to any Participant
to whose Account Excess Elective Deferrals were assigned for the
preceding year and who claims Excess Elective Deferrals for such taxable
year.
The income or loss allocable to such Excess Elective Deferrals shall be
equal to the income or loss allocable to the Participant's Elective
Deferral Contributions for the taxable year in which the excess occurred
multiplied by a fraction. The numerator of the fraction is the Excess
Elective Deferrals. The denominator of the fraction is the closing
balance without regard to any income or loss occurring during such
taxable year (as of the end of such taxable year) of the Participant's
Account resulting from Elective Deferral Contributions.
Any Matching Contributions which were based on the Elective Deferral
Contributions which are distributed as Excess Elective Deferrals, plus
any income and minus any loss allocable thereto, shall be forfeited.
These Forfeitures shall be allocated to the eligible persons in the
ALLOCATION SECTION of Article III who do not have an excess amount and
shall be deemed to be Matching Contributions. The amount allocated to
each eligible person for the Plan Year shall be equal to such Forfeitures
for the Plan Year, multiplied by the ratio of (i) his Annual Compensation
as of the last day of the Plan Year to (ii) the total such compensation
for all eligible persons.
c) As of the end of each Plan Year after Excess Elective Deferrals have been
determined, one of the following tests must be met:
1. The Average Actual Deferral Percentage for Eligible Participants
who are Highly Compensated Employees for the Plan Year is not more
than the Average Actual Deferral Percentage for Eligible
Participants who are Nonhighly Compensated Employees for the Plan
Year multiplied by 1.25.
2. The Average Actual Deferral Percentage for Eligible Participants
who are Highly Compensated Employees for the Plan Year is not more
than the Average Actual Deferral Percentage for Eligible
Participants who are Nonhighly Compensated Employees for the Plan
Year multiplied by 2 and the difference between the Average Actual
Deferral Percentages is not more than 2.
The Actual Deferral Percentage for any Eligible Participant who is a
Highly Compensated Employee for the Plan Year and who is eligible to have
Elective Deferral Contributions (and Qualified Nonelective Contributions
or Qualified Matching Contributions, or both, if used in computing the
Actual Deferral Percentage) allocated to his account under two or more
plans or arrangements described in Code Section 401(k) that are
maintained by the Employer or a Controlled Group member shall be
determined as if all such Elective Deferral Contributions (and, if
applicable, such Qualified Nonelective Contributions or Qualified
Matching Contributions, or both) were made under a single arrangement. if
a Highly Compensated Employee participates in two or more cash or
deferred arrangements that have different Plan Years, all cash or
deferred arrangements ending with or within the same calendar year shall
be treated as a single arrangement. Notwithstanding the foregoing,
certain plans shall be treated as separate if mandatorily disaggregated
under the regulations under
ARTICLE III 32 (89679)
<PAGE> 35
Code Section 401(k).
In the event that this Plan satisfies the requirements of Code Sections 401(k),
401(a)(4), or 410(b) only if aggregated with one or more other plans, or if one
or more other plans satisfy the requirements of such Code sections only if
aggregated with this Plan, then this section shall be applied by determining the
Actual Deferral Percentage of employees as if all such plans were a single plan.
Plans may be aggregated in order to satisfy Code Section 401(k) only if they
have the same Plan Year.
For purposes of determining the Actual Deferral Percentage of an Eligible
Participant who is a five-percent owner or one of the ten most highly-paid
Highly Compensated Employees, the Elective Deferral Contributions (and Qualified
Nonelective Contributions or Qualified Matching Contributions, or both, if used
in computing the Actual Deferral Percentage) and Compensation of such Eligible
Participant include the Elective Deferral Contributions (and, if applicable,
Qualified Nonelective Contributions or Qualified Matching Contributions, or
both) and Compensation for the Plan Year of Family Members. Family Members, with
respect to such Highly Compensated Employees, shall be disregarded as separate
employees in determining the Actual Deferral Percentage both for Participants
who are Nonhighly Compensated Employees and for Participants who are Highly
Compensated Employees.
For purposes of determining the Actual Deferral Percentage, Elective Deferral
Contributions, Qualified Nonelective Contributions and Qualified Matching
Contributions must be made before the last day of the 12-month period
immediately following the Plan Year to which contributions relate.
The Employer shall maintain records sufficient to demonstrate satisfaction of
the Average Actual Deferral Percentage test and the amount of Qualified
Nonelective Contributions or Qualified Matching Contributions, or both, used in
such test.
The determination and treatment of the Contributions used in computing the
Actual Deferral Percentage shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
If the Plan Administrator should determine during the Plan Year that neither of
the above tests is being met, the Plan Administrator may adjust the amount of
future Elective Deferral Contributions of the Highly Compensated Employees.
Notwithstanding any other provisions of this Plan, Excess Contributions, plus
any income and minus any loss allocable thereto, shall be distributed no later
than the last day of each Plan Year to Participants to whose Accounts such
Excess Contributions were allocated for the preceding Plan Year. If such excess
amounts are distributed more than 2 1/2 months after the last day of the Plan
Year in which such excess amounts arose, a ten (10) percent excise tax will be
imposed on the employer maintaining the plan with respect to such amounts. Such
distributions shall be made to Highly Compensated Employees on the basis of the
respective portions of the Excess Contributions attributable to each of such
employees. Excess Contributions of Participants who are subject to the family
member aggregation rules shall be allocated among the Family Members in
proportion to the Elective Deferral Contributions (and amounts treated as
Elective Deferral Contributions) of each Family Member that is combined to
determine the combined Actual Deferral Percentage.
ARTICLE III 33 (89679)
<PAGE> 36
Excess Contributions shall be treated as Annual Additions, as defined in
the CONTRIBUTION LIMITATION SECTION of Article III, under the Plan.
The Excess Contributions shall be adjusted for income or loss. The income
or loss allocable to such Excess Contributions shall be equal to the
income or loss allocable to the Participant's Elective Deferral
Contributions (and, if applicable, Qualified Nonelective Contributions or
Qualified Matching Contributions, or both) for the Plan Year in which the
excess occurred multiplied by a fraction. The numerator of the fraction
is the Excess Contributions. The denominator of the fraction is the
closing balance without regard to any income or loss occurring during
such Plan Year (as of the end of such Plan Year) of the Participant's
Account resulting from Elective Deferral Contributions (and Qualified
Nonelective Contributions or Qualified Matching Contributions, or both,
if used in computing the Actual Deferral Percentage).
Excess Contributions shall be distributed from the Participant's Account
resulting from Elective Deferral Contributions. If such Excess
Contributions exceed the balance in the Participant's Account resulting
from Elective Deferral Contributions, the balance shall be distributed
from the Participant's Account resulting from Qualified Matching
Contributions (if applicable) and Qualified Nonelective Contributions,
respectively.
Any Matching Contributions which were based on the Elective Deferral
Contributions which are distributed as Excess Contributions, plus any
income and minus any loss allocable thereto, shall be forfeited. These
Forfeitures shall be allocated to the eligible persons in the ALLOCATION
SECTION of Article III who do not have an excess amount and shall be
deemed to be Matching Contributions. The amount allocated to each
eligible person for the Plan Year shall be equal to such Forfeitures for
the Plan Year, multiplied by the ratio of (i) his Annual Compensation as
of the last day of the Plan Year to (ii) the total of such compensation
for all eligible persons.
d) As of the end of each Plan Year, one of the following tests must be met:
1. The Average Contribution Percentage for Eligible Participants who
are Highly Compensated Employees for the Plan Year is not more
than the Average Contribution Percentage for Eligible Participants
who are Nonhighly Compensated Employees for the Plan Year
multiplied by 1.25.
2. The Average Contribution Percentage for Eligible Participants who
are Highly Compensated Employees for the Plan Year is not more
than the Average Contribution Percentage for Eligible Participants
who are Nonhighly Compensated Employees for the Plan Year
multiplied by 2 and the difference between the Average
Contribution Percentages is not more than 2.
If one or more Highly Compensated Employees participate in both a cash or
deferred arrangement and a plan subject to the Average Contribution
Percentage test maintained by the Employer or a Controlled Group member
and the sum of the Average Actual Deferral Percentage and Average
Contribution Percentage of those Highly Compensated Employees subject to
either or both tests exceeds the Aggregate Limit, then the Contribution
Percentage of those Highly Compensated Employees who also participate in
a cash or deferred arrangement will be reduced (beginning with such
Highly Compensated Employees whose Contribution Percentage is the
highest) so that the limit is not exceeded. The amount by which each
Highly Compensated Employee's Contribution Percentage is reduced shall be
treated as an Excess Aggregate Contribution. The Average Actual Deferral
Percentage and Average Contribution Percentage of the Highly Compensated
Employees are determined after any corrections required to meet the
Average Actual Deferral Percentage and
ARTICLE III 34 (89679)
<PAGE> 37
Average Contribution Percentage tests. Multiple use does not occur if both the
Average Actual Deferral Percentage and Average Contribution Percentage of the
Highly Compensated Employees does not exceed 1.25 multiplied by the Average
Actual Deferral Percentage and Average Contribution Percentage of the Nonhighly
Compensated Employees.
The Contribution Percentage for any Eligible Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible to have Contribution
Percentage Amounts allocated to his account under two or more plans described in
Code Section 401(a) or arrangements described in Code Section 401(k) that are
maintained by the Employer or a Controlled Group member shall be determined as
if the total of such Contribution Percentage Amounts was made under each plan.
If a Highly Compensated Employee participates in two or more cash or deferred
arrangements that have different Plan Years, all cash or deferred arrangements
ending with or within the same calendar year shall be treated as a single
arrangement. Notwithstanding the foregoing, certain plans shall be treated as
separate if mandatorily disaggregated under regulations under Code Section 401
(m).
In the event that this Plan satisfies the requirements of Code Sections 401(m),
401(a)(4), or 410(b) only if aggregated with one or more other plans, or if one
or more other plans satisfy the requirements of such Code sections only if
aggregated with this Plan, then this section shall be applied by determining the
Contribution Percentages of Eligible Participants as if all such plans were a
single plan. Plans may be aggregated in order to satisfy Code Section 401(m)
only if they have the same Plan Year.
For purposes of determining the Contribution Percentage of an Eligible
Participant who is a five-percent owner or one of the ten most highly-paid
Highly Compensated Employees, the Contribution Percentage Amounts and
Compensation of such Participant shall include Contribution Percentage Amounts
and Compensation for the Plan Year of Family Members. Family Members, with
respect to Highly Compensated Employees, shall be disregarded as separate
employees in determining the Contribution Percentage both for employees who are
Nonhighly Compensated Employees and for employees who are Highly Compensated
Employees.
For purposes of determining the Contribution Percentage, Participant
Contributions are considered to have been made in the Plan Year in which
contributed to the Plan. Matching Contributions and Qualified Nonelective
Contributions will be considered made for a Plan Year if made no later than the
end of the 12-month period beginning on the day after the close of the Plan
Year.
The Employer shall maintain records sufficient to demonstrate satisfaction of
the Average Contribution Percentage test and the amount of Qualified Nonelective
Contributions or Qualified Matching Contributions, or both, used in such test.
The determination and treatment of the Contribution Percentage of any
Participant shall satisfy such other requirements as may be prescribed by the
Secretary of the Treasury.
Notwithstanding any other provisions of this Plan, Excess Aggregate
Contributions, plus any income and minus any loss allocable thereto, shall be
forfeited, if not vested, or distributed, if vested, no later than the last day
of each Plan Year to Participants to whose Accounts such Excess Aggregate
Contributions were allocated for the preceding Plan Year. Excess Aggregate
Contributions of Participants who are subject to the family member aggregation
rules shall be allocated among the Family Members in proportion to the Employee
and Matching Contributions (or amounts treated as Matching Contributions) of
each Family Member that is combined to determine the combined Contribution
Percentage. If such Excess Aggregate Contributions are distributed more than
2 1/2
ARTICLE III 35 (89679)
<PAGE> 38
months after the last day of the Plan Year in which such excess amounts arose, a
ten (10) percent excise tax will be imposed on the employer maintaining the plan
with respect to those amounts. Excess Aggregate Contributions shall be treated
as Annual Additions, as defined in the CONTRIBUTION LIMITATION SECTION of
Article III, under the Plan.
The Excess Aggregate Contributions shall be adjusted for income or loss. The
income or loss allocable to such Excess Aggregate Contributions shall be equal
to the income or loss allocable to the Participant's Contribution Percentage
Amounts for the Plan Year in which the excess occurred multiplied by a fraction.
The numerator of the fraction is the Excess Aggregate Contributions. The
denominator of the fraction is the closing balance without regard to any income
or loss occurring during such Plan Year (as of the end of such Plan Year) of the
Participant's Account resulting from Contribution Percentage Amounts.
Excess Aggregate Contributions shall be distributed from the Participant's
Account resulting from Participant Contributions that are not required as a
condition of employment or participation or for obtaining additional benefits
from Employer Contributions. If such Excess Aggregate Contributions exceed the
balance in the Participant's Account resulting from such Participant
Contributions, the balance shall be forfeited, if not vested, or distributed, if
vested, on a pro-rata basis from the Participant's Account resulting from
Contribution Percentage Amounts. These Forfeitures shall be allocated to the
eligible persons in the ALLOCATION SECTION of Article III who do not have an
excess amount and shall be deemed to be Matching Contributions. The amount
allocated to each eligible person for the Plan Year shall be equal to such
Forfeitures for the Plan Year, multiplied by the ratio of (i) his Annual
Compensation as of the last day of the Plan Year to (ii) the total such
compensation for all eligible persons.
ARTICLE III 36 (89679)
<PAGE> 39
AMEND. NO. 2 PAGE DTD. 1-20-97
------------------------------
ARTICLE IV
INVESTMENT OF CONTRIBUTIONS
SECTION 4.01 --INVESTMENT OF CONTRIBUTIONS.
All Contributions are forwarded by the Employer to the Trustee to be
deposited in the Trust Fund.
Investment of Contributions is governed by the provisions of the Trust,
the Group Contract and any other funding arrangement in which the Trust Fund is
or may be invested. To the extent permitted by the Trust, Group Contract or
other funding arrangement, the parties named below shall direct the
Contributions to any of the accounts available under the Trust or Group Contract
and may request the transfer of assets resulting from those Contributions
between such accounts. A Participant may not direct the Trustee to invest the
Participant's Account in collectibles. Collectibles means any work of art, rug
or antique, metal or gem, stamp or coin, alcoholic beverage or other tangible
personal property specified by the Secretary of Treasury. To the extent that a
Participant does not direct the investment of his Account, such Account shall be
invested ratably in the accounts available under the Trust or Group Contract in
the same manner as the undirected Accounts of all other Participants. The Vested
Accounts of all Inactive Participants may be segregated and invested separately
from the Accounts of all other Participants.
The Trust Fund shall be valued at current fair market value as of the
last day of the last calendar month ending in the Plan Year and, at the
discretion of the Trustee, may be valued more frequently. The valuation shall
take into consideration investment earnings credited, expenses charged, payments
made and changes in the value of the assets held in the Trust Fund. The Account
of a Participant shall be credited with its share of the gains and losses of the
Trust Fund. That part of a Participant's Account invested in a funding
arrangement which establishes an account or accounts for such Participant
thereunder shall be credited with the gain or loss from such account or
accounts. That part of a Participant's Account which is invested in other
funding arrangements shall be credited with a proportionate share of the gain or
loss of such investments. The share shall be determined by multiplying the gain
or loss of the investment by the ratio of the part of the Participant's Account
invested in such funding arrangement to the total of the Trust Fund invested in
such funding arrangement.
At least annually, the Named Fiduciary shall review all pertinent
Employee information and Plan data in order to establish the funding policy of
the Plan and to determine appropriate methods of carrying out the Plan's
objectives. The Named Fiduciary shall inform the Trustee and any Investment
Manager of the Plan's short-term and long-term financial needs so the investment
policy can be coordinated with the Plan's financial requirements.
a) Matching Contributions: The Participant shall direct the
investment of such Matching Contributions and transfer of assets
resulting from these Contributions.
b) Forfeiture Contributions: The Participant shall direct the
investment of Forfeiture Contributions and transfer of assets
resulting from those Contributions.
c) Elective Deferral Contributions: The Participant shall direct the
investment of Elective Deferral Contributions and transfer of
assets resulting from those Contributions.
d) Rollover Contributions: The Participant shall direct the
investment of Rollover Contributions and transfer of assets
resulting from those Contributions.
However, the Named Fiduciary may delegate to the Investment Manager
investment discretion for Contributions and Plan assets which are not
subject to Participant direction.
ARTICLE IV 37 (89679)
<PAGE> 40
AMEND. NO. 2 PAGE DTD. 1-20-97
------------------------------
SECTION 4.01A--INVESTMENT IN QUALIFYING EMPLOYER SECURITIES.
Participants in the Plan shall be entitled to invest in Qualifying
Employer Securities. Once investment in Qualifying Employer Securities is made
available to Eligible Employees, then it shall continue to be available unless
the Plan and Trust is amended to disallow such available investment.
Participants shall be entitled to elect to have their Elective Deferral
Contributions and other portions of their Accounts invested in Qualifying
Employer Securities. In the absence of such election, such Eligible Employees
shall be deemed to have elected to have their Accounts invested wholly in the
Investment Funds. Once an election is made, it shall be considered to continue
until a new election is made. An Eligible Employee may elect to have any portion
of his Elective Deferral Contributions which corresponds to an integral
percentage of his Compensation to be invested in Qualifying Employer Securities.
An Eligible Employee may have any portion of the Matching Contribution
associated with the Elective Deferral Contribution invested in Qualifying
Employer Securities.
If the securities of the Employer are not publicly traded and if no
market or an extremely thin market exists for the Qualifying Employer
Securities, so that a reasonable valuation may not be obtained from the
marketplace, then such Qualifying Employer Securities must be valued at least
annually by an independent appraiser who is not associated with the Employer,
the Plan Administrator, the Trustee, or any person related to any fiduciary
under the Plan. The independent appraiser may be associated with a person who
is merely a contract administrator with respect to the Plan, but who exercises
no discretionary authority and is not a Plan fiduciary.
If there is a public market for Qualifying Employer Securities of the
type held by the Plan, then the Plan Administrator may use as the value of the
shares the price at which such shares traded in such market, or an average of
the bid and asked prices for such shares in such market, provided that such
value is representative of the fair market value of such shares in the opinion
of the Plan Administrator. If the Qualifying Employer Securities do not trade on
the annual valuation date or if the market is very thin on such date, then the
Plan Administrator may use the average of trade prices for a period of time
ending on such date, provided that such value is representative of the fair
market value of such shares in the opinion of the Plan Administrator.
For purposes of determining the annual valuation of the Plan and for
reporting to Participants and regulatory authorities, the assets of the Plan
shall be valued at least annually on the Valuation Date which corresponds to the
last day of the Plan Year. The fair market of Qualifying Employer Securities
shall be determined on such a Valuation Date. The average of the bid and asked
prices of Qualifying Employer Securities as of the date of the transaction shall
apply for purposes of valuing distributions and other transactions of the Plan
to the extent such value is representative of the fair market value of such
shares in the opinion of the Plan Administrator.
All purchases of Qualifying Employer Securities shall be made at a
price, or prices, which, in the judgment of the Plan Administrator, do not
exceed the fair market value of such Qualifying Employer Securities.
In the event that the Trustee acquires shares of Qualifying Employer
Securities by purchase from a "disqualified person' as defined in Code Section
4975(e)(2), in exchange for cash or other assets of the Trust, the terms of such
purchase shall contain the provision that in the event that there is a final
determination by the Internal Revenue Service or court of competent jurisdiction
that the fair market value of such shares of Qualifying Employer Security as of
the date of purchase was less than the purchase price paid by the Trustee, then
the seller shall pay or transfer, as the case may be, to the Trustee an amount
of cash, shares of Qualifying Employer Security, or a combination thereof equal
in value to the difference between the purchase price and said fair market value
for all such shares. In the event that cash and/or shares of Qualifying Employer
Security are paid and/or transferred to the Trustee under this provision, shares
of Qualifying Employer Security shall be valued at their fair market value as of
the date of said purchase, and interest at a reasonable rate from the date of
purchase to the date of payment shall be paid by the seller on the amount of
cash paid.
ARTICLE IV 38 (89679)
<PAGE> 41
AMEND. NO. 2 PAGE DTD. 1-20-97
------------------------------
The Plan Administrator may direct the Trustee to sell, resell or
otherwise dispose of Qualifying Employer Securities to any person, including the
Employer, provided that any such sales to any disqualified person, including the
Employer, will be made at not less than the fair market value and no commission
is charged. Any such sale shall be made in conformance with Section 408(e) of
ERISA.
In the event the Plan Administrator directs the Trustee to dispose of
any Qualifying Employer Securities held as Trust Assets under circumstances
which require registration and/or qualification of the securities under
applicable Federal or state securities laws, then the Employer, at its own
expense, will take or cause to be taken any and all such action as may be
necessary or appropriate to effect such registration and/or qualification.
SECTION 4.01B--LIMITATION ON INVESTMENT IN QUALIFYING EMPLOYER SECURITIES BY
SOME PARTICIPANTS.
Participants who are directors, officers, 10% stockholders of the
Employer, and other persons subject to Section 16 of the Securities Exchange Act
of 1934 (the "1934 Act") will be permitted to change the level of investment in
the Qualifying Employer Securities Account only once every six months.
Additionally, Participants who are directors, officers, 10% stockholders of the
Employer, and other persons subject to Section 16 of the 1934 Act who cease a
participation in the Qualifying Employer Securities Account, or who reduce their
participation in such account to a nominal level, may not participate (e.g.,
direct that investments be made on their behalf) under the Qualifying Employer
Securities Account again for at least six months, intra-plan transfers by such
Participants between the Qualifying Employer Securities Account and other
investment accounts available under the Plan may only be made pursuant to an
investment election made during the period beginning on the third business day
following the day of release of annual or quarterly financial information by
Employer and ending on the twelfth business day following such date. Subject to
certain limited exceptions, Participants who are directors, officers, 10%
stockholders of the Employer, and other persons subject to Section 16 making
withdrawals of investments under the Qualifying Employer Securities Account must
cease further purchase/investment under the Qualifying Employer Securities
Account for six months.
With respect to Participants who are directors, officers, 10%
stockholders of the Employer, and other persons subject to the 1934 Act,
transactions under this Plan are intended to comply with all applicable
conditions of Rule 16b-3 or its successors under the 1934 Act. To the extent any
provisions of the Plan or action by the Plan Administrator fails to so comply,
it shall be deemed null and void, to the extent permitted by law and deemed
advisable by the Plan Administrator.
ARTICLE IV 38a (89679)
<PAGE> 42
ARTICLE V
BENEFITS
SECTION 5.01--RETIREMENT BENEFITS.
On a Participant's Retirement Date, his Vested Account shall be
distributed to him according to the distribution of benefits provisions of
Article VI and the provisions of the SMALL AMOUNTS SECTION of Article IX.
SECTION 5.02--DEATH BENEFITS.
If a Participant dies before his Annuity Starting Date, his Vested Account
shall be distributed according to the distribution of benefits provisions of
Article VI and the provisions of the SMALL AMOUNTS SECTION of Article IX.
SECTION 5.03--VESTED BENEFITS.
A Participant may receive a distribution of his Vested Account at any time
after he ceases to be an Employee, provided he has not again become an Employee.
If such amount is not payable under the provisions of the SMALL AMOUNTS SECTION
of Article IX, it will be distributed only if the Participant so elects. The
Participant's election shall be subject to the requirements in the ELECTION
PROCEDURES SECTION of Article VI for a qualified election of a retirement
benefit.
If a Participant does not receive an earlier distribution according to the
provisions of this section or the SMALL AMOUNTS SECTION of Article IX, upon his
Retirement Date or death, his Vested Account shall be applied according to the
provisions of the RETIREMENT BENEFITS SECTION or the DEATH BENEFITS SECTION of
Article V.
The Nonvested Account of a Participant who has ceased to be an Employee
shall remain a part of his Account until it becomes a Forfeiture; provided,
however, if the Participant again becomes an Employee so that his Vesting
Percentage can increase, the Nonvested Account may become a part of his Vested
Account.
SECTION 5.04--WHEN BENEFITS START.
Benefits under the Plan begin when a Participant retires, dies or ceases
to be an Employee, whichever applies, as provided in the preceding sections of
this article. Benefits which begin before Normal Retirement Date for a
Participant who became Totally and Permanently Disabled when he was an Employee
shall be deemed to begin because he is Totally and Permanently Disabled. The
start of benefits is subject to the qualified election procedures of Article VI.
ARTICLE V 39 (89679)
<PAGE> 43
Unless otherwise elected, benefits shall begin before the sixtieth day
following the close of the Plan Year in which the latest date below occurs:
a) The date the Participant attains age 65 or (Normal Retirement Age,
if earlier).
b) The tenth anniversary of the Participant's Entry Date.
c) The date the Participant ceases to be an Employee.
Notwithstanding the foregoing, the failure of a Participant and spouse to
consent to a distribution while a benefit is immediately distributable, within
the meaning of the ELECTION PROCEDURES SECTION of Article VI, shall be deemed to
be an election to defer commencement of payment of any benefit sufficient to
satisfy this section.
The Participant may elect to have his benefits begin after the latest
date for beginning benefits described above, subject to the provisions of this
section. The Participant shall make the election in writing and deliver the
signed statement of election to the Plan Administrator before Normal Retirement
Date or the date he ceases to be an employee, if later. The election must
describe the form of distribution and the date the benefits will begin. The
Participant shall not elect a date for beginning benefits or a form of
distribution that would result in a benefit payable when he dies which would be
more than incidental within the meaning of governmental regulations.
Benefits shall begin by the Participant's Required Beginning Date, as
defined in the OPTIONAL FORMS OF DISTRIBUTION AND DISTRIBUTION REQUIREMENTS
SECTION of Article VI.
Contributions which are used to compute the Actual Deferral Percentage,
as defined in the EXCESS AMOUNTS SECTION of Article III, may be distributed upon
disposition by the Employer of substantially all of the assets (within the
meaning of Code Section 409(d)(2)) used by the Employer in a trade or business
or disposition by the Employer of the Employer's interest in a subsidiary
(within the meaning of Code Section 409(d)(3)) if the transferee corporation is
not a Controlled Group member, the Employee continues employment with the
transferee corporation and the transferor corporation continues to maintain the
Plan. Such distributions made after March 31, 1988, must be made in a single
sum.
SECTION 5.05--WITHDRAWAL PRIVILEGES.
A Participant may withdraw all or any portion of his Vested Account which
results from the following Contributions
Elective Deferral Contributions
Matching Contributions Rollover
Contributions
in the event of hardship due to an immediate and heavy financial need.
Withdrawals from the Participant's Account resulting from Elective Deferral
Contributions shall be limited to the amount of the Participant's Elective
Deferral Contributions. Immediate and heavy financial need shall be limited to:
(i) expenses incurred or necessary for medical care, described in Code Section
213(d), of the Participant, the Participant's spouse, or any dependents of the
Participant (as defined in Code Section 152); (ii) purchase (excluding mortgage
payments) of a principal residence for the Participant; (iii) payment of tuition
and related educational fees for the next 12 months of post-secondary education
for the Participant, his spouse, children or dependents; (iv) the need to
prevent the eviction of the Participant from his principal residence or
foreclosure on the mortgage of the Participant's
ARTICLE V 40 (89679)
<PAGE> 44
AMEND. NO. 2 PAGE DTD. 1-20-97
------------------------------
principal residence; or (v) any other distribution which is deemed by the
Commissioner of Internal Revenue to be made on account of immediate and heavy
financial need as provided in Treasury regulations. The Participant's request
for a withdrawal shall include his written statement that an immediate and heavy
financial need exists and explain its nature.
No withdrawal shall be allowed which is not necessary to satisfy such
immediate and heavy financial need. Such withdrawal shall be deemed necessary
only if all of the following requirements are met: (i) the distribution is not
in excess of the amount of the immediate and heavy financial need of the
Participant (including amounts necessary to pay any Federal, state or local
income taxes or penalties reasonably anticipated to result from the
distribution); (ii) the Participant has obtained all distributions, other than
hardship distributions, and all nontaxable loans currently available under all
plans maintained by the Employer; (iii) the Plan, and all other plans maintained
by the Employer, provide that the Participant's elective contributions and
employee contributions will be suspended for at least 12 months after receipt of
the hardship distributions; and (iv) the Plan, and all other plans maintained by
the Employer, provide that the Participant may not make elective contributions
for the Participant's taxable year immediately following the taxable year of the
hardship distribution in excess of the applicable limit under Code Section
402(g) for such next taxable year less the amount of such Participant's elective
contributions for the taxable year of the hardship distribution. The Plan will
suspend elective contributions and employee contributions for 12 months and
limit elective deferrals as provided in the preceding sentence. A Participant
shall not cease to be an Eligible Participant, as defined in the EXCESS AMOUNTS
SECTION of Article III, merely because his elective contributions or employee
contributions are suspended.
A request for withdrawal shall be in writing on a form furnished for that
purpose and delivered to the Plan Administrator before the withdrawal is to
occur. The Participant's request shall be subject to the requirements in the
ELECTION PROCEDURES SECTION of Article VI for a qualified election of a
retirement benefit payable in a form other than a Qualified Joint and Survivor
Form.
A forfeiture shall not occur solely as a result of a withdrawal.
SECTION 5.06--LOANS TO PARTICIPANTS.
Loans shall be made available to all Participants on a reasonably
equivalent basis. For purposes of this section, Participant means any
Participant or Beneficiary who is a party-in-interest, within the meaning of
Section 3(14) of the Employee Retirement Income Security Act of 1974. Loans
shall not be made to highly compensated employees, as defined in Code Section
414(q), in an amount greater than the amount made available to other
Participants.
No loans will be made to any shareholder-employee or owner-employee. For
purposes of this requirement, a shareholder-employee means an employee or
officer of an electing small business (Subchapter S) corporation who owns (or is
considered as owning within the meaning of Code Section 318(a)(1)), on any day
during the taxable year of such corporation, more than 5% of the outstanding
stock of the corporation.
A loan to a Participant shall be a Participant-directed investment of his
Account. No Account other than the borrowing Participant's Account shall share
in the interest paid on the loan or bear any expense or loss because of the
loan. A loan will not be made if, in order to make the loan, the sale of
Qualifying Employer Securities would be required.
The number of outstanding loans shall be limited to one. No more than one
loan will be approved for any Participant in any 12-month period. The minimum
amount of any loan shall be $1,000.
ARTICLE V 41 (89679)
<PAGE> 45
Loans must be adequately secured and bear a reasonable rate of interest.
The amount of the loan shall not exceed the maximum amount that may be
treated as a loan under Code Section 72(p) (rather than a distribution) to the
Participant and shall be equal to the lesser of (a) or (b) below:
a) $50,000 reduced by the highest outstanding loan balance of loans
during the one-year period ending on the day before the new loan
is made.
b) The greater of (1) or (2), reduced by (3) below:
1. One-half of the Participant's Vested Account.
2. $10,000.
3. Any outstanding loan balance on the date the new loan is
made.
For purposes of this maximum, a Participant's Vested Account does not include
any accumulated deductible employee contributions, as defined in Code Section
72(o)(5)(B), and all qualified employer plans, as defined in Code Section
72(p)(4), of the Employer and any Controlled Group member shall be treated as
one plan.
The foregoing notwithstanding, the amount of such loan shall not exceed
50% of the amount of the Participant's Vested Account. For purposes of this
maximum, a Participant's Vested Account does not include any accumulated
deductible employee contributions, as defined in Code Section 72(o)(5)(B). No
collateral other than a portion of the Participant's Vested Account (as limited
above) shall be accepted. The Loan Administrator shall determine if the
collateral is adequate for the amount of the loan requested.
A Participant must obtain the consent of the Participant's spouse, if
any, to the use of the Vested Account as security for the loan. Spousal consent
shall be obtained no earlier than the beginning of the 90-day period that ends
on the date on which the loan to be so secured is made. The consent must be in
writing, must acknowledge the effect of the loan, and must be witnessed by a
plan representative or a notary public. Such consent shall there after be
binding with respect to that loan. A new consent shall be required if the Vested
Account is used for collateral upon renegotiation, extension, renewal, or other
revision of the loan.
If a valid spousal consent has been obtained in accordance with the
above, then, notwithstanding any other provision of this Plan, the portion of
the Participant's Vested Account used as a security interest held by the Plan by
reason of a loan outstanding to the Participant shall be taken into account for
purposes of determining the amount of the Vested Account payable at the time of
death or distribution, but only if the reduction is used as repayment of the
loan. if less than 100% of the Participant's Vested Account (determined without
regard to the preceding sentence) is payable to the surviving spouse, then the
Vested Account shall be adjusted by first reducing the Vested Account by the
amount of the security used as repayment of the loan, and then determining the
benefit payable to the surviving spouse.
Each loan shall bear a reasonable fixed rate of interest to be determined
by the Loan Administrator. In determining the interest rate, the Loan
Administrator shall take into consideration fixed interest rates currently being
charged by commercial lenders for loans of comparable risk on similar terms and
for similar durations, so that the interest will provide for a return
commensurate with rates currently charged by commercial lenders for loans made
under similar circumstances. The Loan Administrator shall not discriminate among
the Participants in the matter of interest rates in accordance with the current
appropriate standards.
ARTICLE V 42 (89679)
<PAGE> 46
The loan shall by its terms require that repayment (principal and interest) be
amortized in level payments, not less frequently than quarterly, over a period
not extending beyond five years from the date of the loan. The period of
repayment for any loan shall be arrived at by mutual agreement between the Loan
Administrator and the Participant.
The Participant shall make a written application for a loan from the Plan
on forms provided by the Loan Administrator. The application must specify the
amount and duration requested. No loan will be approved unless the Participant
is creditworthy. The Participant must grant authority to the Loan Administrator
to investigate the Participant's creditworthiness so that the loan application
may be properly considered.
Information contained in the application for the loan concerning the
income, liabilities, and assets of the Participant will be evaluated to
determine whether there is a reasonable expectation that the Participant will be
able to satisfy payments on the loan as due. Additionally, the Loan
Administrator will pursue any appropriate further investigations concerning the
creditworthiness and/or credit history of the Participant to determine whether a
loan should be approved.
Each loan shall be fully documented in the form of a promissory note
signed by the Participant for the face amount of the loan, together with
interest determined as specified above.
There will be an assignment of collateral to the Plan executed at the time
the loan is made.
In those cases where repayment through payroll deduction by the Employer
is available, installments are so payable, and a payroll deduction agreement
will be executed by the Participant at the time of making the loan.
Where payroll deduction is not available, payments are to be timely made.
Any payment that is not by payroll deduction shall be made payable to the
Employer or Trustee, as specified in the promissory note, and delivered to the
Loan Administrator, including prepayments and penalties, if any, and other
amounts due under the note.
The promissory note may provide for reasonable late payment penalties
and/or service fees. Any penalties or service fees shall be applied to all
Participants in a nondiscriminatory manner. If the promissory note so provides,
such amounts may be assessed and collected from the Account of the Participant
as part of the loan balance.
Each loan may be paid prior to maturity, in part or in full, without
penalty or service fee, except as may be set out in the promissory note.
If any amount remains unpaid for more than 31 days after due, a default
is deemed to occur.
Upon default, the Plan has the right to pursue any remedy available by law
to satisfy the amount due, along with accrued interest, including the right to
enforce its claim against the security pledged and execute upon the collateral
as allowed by law.
If any payment of principal or interest or penalty, or any portion
thereof, is not made for a period of 90 days after due, the entire principal
balance whether or not otherwise then due, shall become immediately due and
payable without demand or notice, and subject to collection or satisfaction by
any lawful means, including specifically but not limited to the right to enforce
the claim against the security pledged and to execute upon the collateral as
allowed by law.
ARTICLE V 43 (89679)
<PAGE> 47
In the event of default, foreclosure on the note and attachment of
security or use of amounts pledged to satisfy the amount then due, will not
occur until a distributable event occurs in accordance with the Plan, and will
not occur to an extent greater than the amount then available upon any
distributable event which has occurred under the Plan.
All reasonable costs and expenses, including but not limited to attorney's
fees, incurred by the Plan in connection with any default or in any proceeding
to enforce any provision of a promissory note or instrument by which a
promissory note for a Participant loan is secured, shall be assessed and
collected from the Account of the Participant as part of the loan balance.
If payroll deduction is being utilized, in the event that a Participant's
available payroll deduction amounts in any given month are insufficient to
satisfy the total amount due, there will be an increase in the amount taken
subsequently, sufficient to make up the amount that is then due. if the
subsequent deduction is also insufficient to satisfy the amount due within 31
days, a default is deemed to occur as above. If any amount remains past due more
than 90 days, the entire principal amount, whether or not otherwise then due,
along with interest then accrued and any penalty amount then due, shall become
due and payable, as above.
If the Participant ceases to be a party-in-interest (as defined in this
section), the balance of the outstanding loan becomes due and payable, and the
Participant's Vested Account will be used as available for distribution(s) to
pay the outstanding loan. The Participant's Vested Account will not be used to
pay any amount due under the outstanding loan before the date which is 31 days
after the date he ceased to be an Employee, and the Participant may elect to
repay the outstanding loan with interest on the day of repayment. If no
distributable event has occurred under the Plan at the time that the
Participant's Vested Account would otherwise be used under this provision to pay
any amount due under the outstanding loan, this will not occur until the time,
or in excess of the extent to which, a distributable event occurs under the
Plan.
ARTICLE V 44 (89679)
<PAGE> 48
ARTICLE VI
DISTRIBUTION OF BENEFITS
SECTION 6.01 --AUTOMATIC FORMS OF DISTRIBUTION.
Unless a qualified election of an optional form of benefit has been made
within the election period (see the ELECTION PROCEDURES SECTION of Article VI),
the automatic form of benefit payable to or on behalf of a Participant is
determined as follows:
a) The automatic form of retirement benefit for a Participant who
does not die before his Annuity Starting Date shall be the
Qualified Joint and Survivor Form.
b) The automatic form of death benefit for a Participant who dies
before his Annuity Starting Date shall be:
1. A Qualified Preretirement Survivor Annuity for a
Participant who has a spouse to whom he has been
continuously married throughout the one-year period ending
on the date of his death. The spouse may elect to start
receiving the death benefit on any first day of the month
on or after the Participant dies and before the date the
Participant would have been age 70 1/2. If the spouse dies
before benefits start, the Participant's Vested Account,
determined as of the date of the spouse's death, shall be
paid to the spouse's Beneficiary.
2. A single-sum payment to the Participant's Beneficiary for a
Participant who does not have a spouse who is entitled to a
Qualified Preretirement Survivor Annuity.
Before a death benefit will be paid on account of the death of a
Participant who does not have a spouse who is entitled to a
Qualified Preretirement Survivor Annuity, it must be established
to the satisfaction of a plan representative that the Participant
does not have such a spouse.
SECTION 6.02--OPTIONAL FORMS OF DISTRIBUTION AND DISTRIBUTION
REQUIREMENTS.
a) For purposes of this section, the following terms are defined:
APPLICABLE LIFE EXPECTANCY means Life Expectancy (or Joint and Last
Survivor Expectancy) calculated using the attained age of the Participant
(or Designated Beneficiary) as of the Participant's (or Designated
Beneficiary's) birthday in the applicable calendar year reduced by one
for each calendar year which has elapsed since the date Life Expectancy
was first calculated. If Life Expectancy is being recalculated, the
Applicable Life Expectancy shall be the Life Expectancy so recalculated.
The applicable calendar year shall be the first Distribution Calendar
Year, and if Life Expectancy is being recalculated such succeeding
calendar year.
DESIGNATED BENEFICIARY means the individual who is designated as the
beneficiary under the Plan in accordance with Code Section 401(a)(9) and
the regulations thereunder.
ARTICLE VI 45 (89679)
<PAGE> 49
DISTRIBUTION CALENDAR YEAR means a calendar year for which a minimum
distribution is required. For distributions beginning before the Participant's
death, the first Distribution Calendar Year is the calendar year immediately
preceding the calendar year which contains the Participant's Required Beginning
Date. For distributions beginning after the Participant's death, the first
Distribution Calendar Year is the calendar year in which distributions are
required to begin pursuant to (e) below.
JOINT AND LAST SURVIVOR EXPECTANCY means joint and last survivor expectancy
computed by use of the expected return multiples in Table VI of section 1.72-9
of the Income Tax Regulations.
Unless otherwise elected by the Participant (or spouse, in the case of
distributions described in (e)(2)(ii) below) by the time distributions are
required to begin, life expectancies shall be recalculated annually. Such
election shall be irrevocable as to the Participant (or spouse) and shall apply
to all subsequent years. The life expectancy of a nonspouse Beneficiary may not
be recalculated.
LIFE EXPECTANCY means life expectancy computed by use of the expected return
multiples in Tables V of section 1.72-9 of the Income Tax Regulations.
Unless otherwise elected by the Participant (or spouse, in the case of
distributions described in (e)(2)(ii) below) by the time distributions are
required to begin, life expectancies shall be recalculated annually. Such
election shall be irrevocable as to the Participant (or spouse) and shall apply
to all subsequent years. The life expectancy of a nonspouse Beneficiary may not
be recalculated.
PARTICIPANT'S BENEFIT means
1. The Account Balance as of the last valuation date in the calendar year
immediately preceding the Distribution Calendar Year (valuation calendar
year) increased by the amount of any contributions or forfeitures
allocated to the Account balance as of the dates in the valuation
calendar year after the valuation date and decreased by distributions
made in the valuation calendar year after the valuation date.
2. For purposes of (1) above, if any portion of the minimum distribution
for the first Distribution Calendar Year is made in the second
Distribution Calendar Year on or before the Required Beginning Date, the
amount of the minimum distribution made in the second Distribution
Calendar Year shall be treated as if it had been made in the immediately
preceding Distribution Calendar Year.
REQUIRED BEGINNING DATE means, for a Participant, the first day of April of the
calendar year following the calendar year in which the Participant attains age
70 1/2, unless otherwise provided in (1), (2) or (3) below:
1. The Required Beginning Date for a Participant who attains age 70 1/2
before January 1, 1988, and who is not a 5-percent owner is the first day
of April of the calendar year following the calendar year in which the
later of retirement or attainment of age 70 1/2 occurs.
2. The Required Beginning Date for a Participant who attains age 70 1/2
before January 1, 1988, and who is a 5-percent owner is the first day of
April of the calendar year following the later of
i. the calendar year in which the Participant attains age 70 1/2, or
ARTICLE VI 46 (89679)
<PAGE> 50
ii. the earlier of the calendar year with or within which ends
the Plan Year in which the Participant becomes a 5-percent
owner, or the calendar year in which the Participant
retires.
3. The Required Beginning Date of a Participant who is not a
5-percent owner and who attains age 70 1/2 during 1988 and who has
not retired as of January 1, 1989, is April 1, 1990.
A Participant is treated as a 5-percent owner for purposes of this
section if such Participant is a 5-percent owner as defined in Code
Section 416(i) (determined in accordance with Code Section 416 but
without regard to whether the Plan is top-heavy) at any time during the
Plan Year ending with or within the calendar year in which such owner
attains age 66 1/2 or any subsequent Plan Year.
Once distributions have begun to a 5-percent owner under this section,
they must continue to be distributed, even if the Participant ceases to
be a 5-percent owner in a subsequent year.
b) The optional forms of retirement benefit shall be the following: a
straight life annuity; single life annuities with certain periods of
five, ten or fifteen years; a single life annuity with installment
refund; survivorship life annuities with installment refund and
survivorship percentages of 50, 66 2/3 or 100; fixed period annuities for
any period of whole months which is not less than 60 and does not exceed
the Life Expectancy of the Participant and the named Beneficiary as
provided in (d) below where the Life Expectancy is not recalculated; and
a series of installments chosen by the Participant with a minimum payment
each year beginning with the year the Participant turns age 70 l/2. The
payment for the first year in which a minimum payment is required will be
made by April 1 of the following calendar year. The payment for the
second year and each successive year will be made by December 31 of that
year. The minimum payment will be based on a period equal to the Joint
and Last Survivor Expectancy of the Participant and the Participant's
spouse, if any, as provided in (d) below where the Joint and Last
Survivor Expectancy is recalculated. The balance of the Participant's
Vested Account, if any, will be payable on the Participant's death to his
Beneficiary in a single sum. The Participant may also elect to receive
his Vested Account in a single-sum payment.
Election of an optional form is subject to the qualified election provisions of
Article VI.
Any annuity contract distributed shall be nontransferable. The terms of any
annuity contract purchased and distributed by the Plan to a Participant or
spouse shall comply with the requirements of this Plan.
c) The optional forms of death benefit are a single-sum payment and any
annuity that is an optional form of retirement benefit. However, a series
of installments shall not be available if the Beneficiary is not the
spouse of the deceased Participant.
d) Subject to the AUTOMATIC FORMS OF DISTRIBUTION SECTION of Article VI,
joint and survivor annuity requirements, the requirements of this section
shall apply to any distribution of a Participant's interest and will take
precedence over any inconsistent provisions of this Plan. Unless
otherwise specified, the provisions of this section apply to calendar
years beginning after December 31, 1984.
All distributions required under this section shall be determined and made in
accordance with the proposed regulations under Code Section 401(a)(9), including
the minimum distribution incidental benefit requirement of section 1.401
(a)(9)-2 of the proposed regulations.
ARTICLE VI 47 (89679)
<PAGE> 51
The entire interest of a Participant must be distributed or begin to be
distributed no later than the Participant's Required Beginning Date.
As of the first Distribution Calendar Year, distributions, if not made in a
single sum, may only be made over one of the following periods (or combination
thereof):
1. the life of the Participant,
2. the life of the Participant and a Designated Beneficiary,
3. a period certain not extending beyond the Life Expectancy of the
Participant, or
4. a period certain not extending beyond the Joint and Last Survivor
Expectancy of the Participant and a Designated Beneficiary.
If the Participant's interest is to be distributed in other than a single sum,
the following minimum distribution rules shall apply on or after the Required
Beginning Date:
5. Individual account:
i. If a Participant's Benefit is to be distributed over
1) a period not extending beyond the Life Expectancy of the
Participant or the Joint Life and Last Survivor Expectancy
of the Participant and the Participant's Designated
Beneficiary or
2) a period not extending beyond the Life Expectancy of the
Designated Beneficiary,
the amount required to be distributed for each calendar year
beginning with the distributions for the first Distribution
Calendar Year, must be at least equal to the quotient obtained by
dividing the Participant's Benefit by the Applicable Life
Expectancy.
ii. For calendar years beginning before January 1, 1989, if the
Participant's spouse is not the Designated Beneficiary, the method
of distribution selected must assure that at least 50% of the
present value of the amount available for distribution is paid
within the Life Expectancy of the Participant.
iii. For calendar years beginning after December 31, 1988, the amount
to be distributed each year, beginning with distributions for the
first Distribution Calendar Year shall not be less than the
quotient obtained by dividing the Participant's Benefit by the
lesser of
1) the Applicable Life Expectancy or
2) if the Participant's spouse is not the Designated
Beneficiary, the applicable divisor determined from the
table set forth in Q&A-4 of section 1.401(a)(9)-2 of the
proposed regulations.
ARTICLE VI 48 (89679)
<PAGE> 52
Distributions after the death of the Participant shall be
distributed using the Applicable Life Expectancy in (5)(i)
above as the relevant divisor without regard to proposed
regulations section 1.401(a)(9)-2.
iv. The minimum distribution required for the Participant's
first Distribution Calendar Year must be made on or before
the Participant's Required Beginning Date. The minimum
distribution for the Distribution Calendar Year for other
calendar years, including the minimum distribution for the
Distribution Calendar Year in which the Participant's
Required Beginning Date occurs, must be made on or before
December 31 of that Distribution Calendar Year.
6. Other forms:
i. If the Participant's Benefit is distributed in the form of
an annuity purchased from an insurance company,
distributions thereunder shall be made in accordance with
the requirements of Code Section 401(a)(9) and the
proposed regulations thereunder.
e) Death distribution provisions:
1. Distribution beginning before death. If the Participant dies after
distribution of his interest has begun, the remaining portion of
such interest will continue to be distributed at least as rapidly
as under the method of distribution being used prior to the
Participant's death.
2. Distribution beginning after death. If the Participant dies before
distribution of his interest begins, distribution of the
Participant's entire interest shall be completed by December 31 of
the calendar year containing the fifth anniversary of the
Participant's death except to the extent that an election is made
to receive distributions in accordance with (i) or (ii) below:
i. if any portion of the Participant's interest is payable to
a Designated Beneficiary, distributions may be made over
the life or over a period certain not greater than the Life
Expectancy of the Designated Beneficiary commencing on or
before December 31 of the calendar year immediately
following the calendar year in which the Participant died;
ii. if the Designated Beneficiary is the Participant's
surviving spouse, the date distributions are required to
begin in accordance with (i) above shall not be earlier
than the later of
1) December 31 of the calendar year immediately
following the calendar year in which the Participant
died and
2) December 31 of the calendar year in which the
Participant would have attained age 70 1/2.
If the Participant has not made an election pursuant to this
(e)(2) by the time of his death, the Participant's Designated
Beneficiary must elect the method of distribution no later than
the earlier of
iii. December 31 of the calendar year in which distributions
would be required to begin under this subparagraph, or
ARTICLE VI 49 (89679)
<PAGE> 53
AMEND. NO. 2 PAGE DTD. 1-20-97
------------------------------
iv. December 31 of the calendar year which contains the fifth
anniversary of the date of death of the Participant.
If the Participant has no Designated Beneficiary, or if the
Designated Beneficiary does not elect a method of distribution,
distribution of the Participant's entire interest must be
completed by December 31 of the calendar year containing the fifth
anniversary of the Participant's death.
3. For purposes of (e)(2) above, if the surviving spouse dies after
the Participant, but before payments to such spouse begin, the
provisions of (e)(2) above, with the exception of (e)(2)(ii)
therein, shall be applied as if the surviving spouse were the
Participant.
4. For purposes of this (e), any amount paid to a child of the
Participant will be treated as if it had been paid to the
surviving spouse if the amount becomes payable to the surviving
spouse when the child reaches the age of majority.
5. For purposes of this (e), distribution of a Participant's interest
is considered to begin on the Participant's Required Beginning
Date (or if (e)(3) above is applicable, the date distribution is
required to begin to the surviving spouse pursuant to (e)(2)
above). If distribution in the form of an annuity irrevocably
commences to the Participant before the Required Beginning Date,
the date distribution is considered to begin is the date
distribution actually commences.
SECTION 6.02A--DISTRIBUTIONS IN QUALIFYING EMPLOYER SECURITIES.
In lieu of the distributions permitted under Section 6.02 above, any
portion of the Participant's Vested Account held in qualifying Employer
Securities may be distributed in kind. Fractional shares shall be paid in cash
valued as of the most recent Valuation Date; the distribution shall include any
dividends (cash or stock) on such whole shares or any additional shares received
as a result of a stock split or any other adjustment to such whole shares since
the Valuation Date preceding the date of distribution.
SECTION 6.03--ELECTION PROCEDURES.
The Participant, Beneficiary, or spouse shall make any election under
this section in writing. The Plan Administrator may require such individual to
complete and sign any necessary documents as to the provisions to be made. Any
election permitted under (a) and (b) below shall be subject to the qualified
election provisions of (c) below.
a) Retirement Benefits. A Participant may elect his Beneficiary or
Contingent Annuitant and may elect to have retirement benefits
distributed under any of the optional forms of retirement benefit
described in the OPTIONAL FORMS OF DISTRIBUTION AND DISTRIBUTION
REQUIREMENTS SECTION of Article VI.
b) Death Benefits. A Participant may elect his Beneficiary and may
elect to have death benefits distributed under any of the optional
forms of death benefit described in the OPTIONAL FORMS OF
DISTRIBUTION AND DISTRIBUTION REQUIREMENTS SECTION of Article VI.
If the Participant has not elected an optional form of distribution for
the death benefit payable to his Beneficiary, the Beneficiary may, for
his own benefit, elect the form of distribution, in like manner as a
Participant.
The Participant may waive the Qualified Preretirement Survivor Annuity by
naming someone other than his spouse as Beneficiary.
ARTICLE VI 50 (89679)
<PAGE> 54
In lieu of the Qualified Preretirement Survivor Annuity described in the
AUTOMATIC FORMS OF DISTRIBUTION SECTION of Article VI, the spouse may,
for his own benefit, waive the Qualified Preretirement Survivor Annuity
by electing to have the benefit distributed under any of the optional
forms of death benefit described in the OPTIONAL FORMS OF DISTRIBUTION
AND DISTRIBUTION REQUIREMENTS SECTION of Article VI.
c) Qualified Election. The Participant, Beneficiary or spouse may make an
election at any time during the election period. The Participant,
Beneficiary, or spouse may revoke the election made (or make a new
election) at any time and any number of times during the election period.
An election is effective only if it meets the consent requirements below.
The election period as to retirement benefits is the 90-day period ending
on the Annuity Starting Date. An election to waive the Qualified Joint
and Survivor Form may not be made before the date he is provided with the
notice of the ability to waive the Qualified Joint and Survivor Form. If
the Participant elects the series of installments, he may elect on any
later date to have the balance of his Vested Account paid under any of
the optional forms of retirement benefit available under the Plan. His
election period for this election is the 90-day period ending on the
Annuity Starting Date for the optional form of retirement benefit
elected.
A Participant may make an election as to death benefits at any time
before he dies. The spouse's election period begins on the date the
Participant dies and ends on the date benefits begin. The Beneficiary's
election period begins on the date the Participant dies and ends on the
date benefits begin. An election to waive the Qualified Preretirement
Survivor Annuity may not be made by the Participant before the date he is
provided with the notice of the ability to waive the Qualified
Preretirement Survivor Annuity. A Participant's election to waive the
Qualified Preretirement Survivor Annuity which is made before the first
day of the Plan Year in which he reaches age 35 shall become invalid on
such date. An election made by a Participant after he ceases to be an
Employee will not become invalid on the first day of the Plan Year in
which he reaches age 35 with respect to death benefits from that part of
his Account resulting from Contributions made before he ceased to be an
Employee.
If the Participant's Vested Account has at any time exceeded $3,500, any
benefit which is (1) immediately distributable or (2) payable in a form
other than a Qualified Joint and Survivor Form or a Qualified
Preretirement Survivor Annuity requires the consent of the Participant
and the Participant's spouse (or where either the Participant or spouse
has died, the survivor). The consent of the Participant or spouse to a
benefit which is immediately distributable must not be made before the
date the Participant or spouse is provided with the notice of the ability
to defer the distribution. Such consent shall be made in writing. The
consent shall not be made more than 90 days before the Annuity Starting
Date. Spousal consent is not required for a benefit which is immediately
distributable in a Qualified Joint and Survivor Form. Furthermore, if
spousal consent is not required because the Participant is electing an
optional form of retirement benefit that is not a life annuity pursuant
to (d) below, only the Participant need consent to the distribution of a
benefit payable in a form that is not a life annuity and which is
immediately distributable. Neither the consent of the Participant nor the
Participant's spouse shall be required to the extent that a distribution
is required to satisfy Code Section 401(a)(9) or Code Section 415. In
addition, upon termination of this Plan if the Plan does not offer an
annuity option (purchased from a commercial provider), the Participant's
Account balance may, without the Participant's consent, be distributed to
the Participant or transferred to another defined contribution plan
(other than an employee stock ownership plan as defined in Code Section
4975(e)(7)) within the same Controlled Group. A benefit is immediately
ARTICLE VI 51 (89679)
<PAGE> 55
distributable if any part of the benefit could be distributed to the
Participant (or surviving spouse) before the Participant attains (or
would have attained if not deceased) the older of Normal Retirement Age
or age 62. If the Qualified Joint and Survivor Form is waived, the
spouse has the right to consent only to a specific Beneficiary or a
specific form of benefit. The spouse can relinquish one or both such
rights. Such consent shall be made in writing. The consent shall not be
made more than 90 days before the Annuity Starting Date. If the
Qualified Preretirement Survivor Annuity is waived, the spouse has the
right to limit consent only to a specific Beneficiary. Such consent
shall be in writing. The spouse's consent shall be witnessed by a plan
representative or notary public. The spouse's consent must acknowledge
the effect of the election, including that the spouse had the right to
limit consent only to a specific Beneficiary or a specific form of
benefit, if applicable, and that the relinquishment of one or both such
rights was voluntary. Unless the consent of the spouse expressly permits
designations by the Participant without a requirement of further consent
by the spouse, the spouse's consent must be limited to the form of
benefit, if applicable, and the Beneficiary (including any Contingent
Annuitant), class of Beneficiaries, or contingent Beneficiary named in
the election. Spousal consent is not required, however, if the
Participant establishes to the satisfaction of the plan representative
that the consent of the spouse cannot be obtained because there is no
spouse or the spouse cannot be located. A spouse's consent under this
paragraph shall not be valid with respect to any other spouse. A
Participant may revoke a prior election without the consent of the
spouse. Any new election will require a new spousal consent, unless the
consent of the spouse expressly permits such election by the Participant
without further consent by the spouse. A spouse's consent may be revoked
at any time within the Participant's election period.
d) Special Rule for Profit Sharing Plan. As provided in the preceding
provisions of the Plan, if a Participant has a spouse to whom he has
been continuously married throughout the one-year period ending on the
date of his death, the Participant's Vested Account shall be paid to
such spouse. However, if there is no such spouse or if the surviving
spouse has already consented in a manner conforming to the qualified
election requirements in (c) above, the Vested Account shall be payable
to the Participant's Beneficiary in the event of the Participant's
death.
The Participant may waive the spousal death benefit described above at
any time provided that no such waiver shall be effective unless it
satisfies the conditions of (c) above (other than the notification
requirement referred to therein) that would apply to the Participant's
waiver of the Qualified Preretirement Survivor Annuity.
Because this is a profit sharing plan which pays death benefits as
described above, this subsection (d) applies if the following condition
is met: with respect to the Participant, this Plan is not a direct or
indirect transferee after December 31, 1984, of a defined benefit plan,
money purchase plan (including a target plan), stock bonus plan or
profit sharing plan which is subject to the survivor annuity
requirements of Code Section 401(a)(11) and Code Section 417. If the
above condition is met, spousal consent is not required for electing a
benefit payable in a form that is not a life annuity. If the above
condition is not met, the consent requirements of this article shall be
operative.
ARTICLE VI 52 (89679)
<PAGE> 56
SECTION 6.04--NOTICE REQUIREMENTS.
a) Optional forms of retirement benefit. The Plan Administrator shall
furnish to the Participant and the Participant's spouse a written
explanation of the optional forms of retirement benefit in the
OPTIONAL FORMS OF DISTRIBUTION AND DISTRIBUTION REQUIREMENTS
SECTION of Article VI, including the material features and
relative values of these options, in a manner that would satisfy
the notice requirements of Code Section 417(a)(3) and the right of
the Participant and the Participant's spouse to defer distribution
until the benefit is no longer immediately distributable. The Plan
Administrator shall furnish the written explanation by a method
reasonably calculated to reach the attention of the Participant
and the Participant's spouse no less than 30 days and no more than
90 days before the Annuity Starting Date.
b) Qualified Joint and Survivor Form. The Plan Administrator shall
furnish to the Participant a written explanation of the following:
the terms and conditions of the Qualified Joint and Survivor Form;
the Participant's right to make, and the effect of, an election to
waive the Qualified Joint and Survivor Form; the rights of the
Participant's spouse; and the right to revoke an election and the
effect of such a revocation. The Plan Administrator shall furnish
the written explanation by a method reasonably calculated to reach
the attention of the Participant no less than 30 days and no more
than 90 days before the Annuity Starting Date.
After the written explanation is given, a Participant or spouse
may make written request for additional information. The written
explanation must be personally delivered or mailed (first class
mail, postage prepaid) to the Participant or spouse within 30 days
from the date of the written request. The Plan Administrator does
not need to comply with more than one such request by a
Participant or spouse.
The Plan Administrator's explanation shall be written in
nontechnical language and will explain the terms and conditions of
the Qualified Joint and Survivor Form and the financial effect
upon the Participant's benefit (in terms of dollars per benefit
payment) of electing not to have benefits distributed in
accordance with the Qualified Joint and Survivor Form.
c) Qualified Preretirement Survivor Annuity. As required by the Code
and Federal regulation, the Plan Administrator shall furnish to
the Participant a written explanation of the following: the terms
and conditions of the Qualified Preretirement Survivor Annuity;
the Participant's right to make, and the effect of, an election to
waive the Qualified Preretirement Survivor Annuity; the rights of
the Participant's spouse; and the right to revoke an election and
the effect of such a revocation. The Plan Administrator shall
furnish the written explanation by a method reasonably calculated
to reach the attention of the Participant within the applicable
period. The applicable period for a Participants whichever of the
following periods ends last:
1. the period beginning one year before the date the
individual becomes a Participant and ending one year after
such date; or
2. the period beginning one year before the date the
Participant's spouse is first entitled to a Qualified
Preretirement Survivor Annuity and ending one year after
such date.
ARTICLE VI 53 (89679)
<PAGE> 57
If such notice is given before the period beginning with the first day of the
Plan Year in which the Participant attains age 32 and ending with the close of
the Plan Year preceding the Plan Year in which the Participant attains age 35,
an additional notice shall be given within such period. If a Participant ceases
to be an Employee before attaining age 35, an additional notice shall be given
within the period beginning one year before the date he ceases to be an Employee
and ending one year after such date.
After the written explanation is given, a Participant or spouse may make written
request for additional information. The written explanation must be personally
delivered or mailed (first class mail, postage prepaid) to the Participant or
spouse within 30 days from the date of the written request. The Plan
Administrator does not need to comply with more than one such request by a
Participant or spouse.
The Plan Administrator's explanation shall be written in nontechnical language
and will explain the terms and conditions of the Qualified Preretirement
Survivor Annuity and the financial effect upon the spouse's benefit (in terms of
dollars per benefit payment) of electing not to have benefits distributed in
accordance with the Qualified Preretirement Survivor Annuity.
ARTICLE VI 54 (89679)
<PAGE> 58
ARTICLE VII
TERMINATION OF PLAN
The Employer expects to continue the Plan indefinitely but reserves the
right to terminate the Plan in whole or in part at any time upon giving written
notice to all parties concerned. Complete discontinuance of Contributions under
the Plan constitutes complete termination of Plan.
The Account of each Participant shall be fully (100%) vested and
nonforfeitable as of the effective date of complete termination of Plan. The
Account of each Participant who is included in the group of Participants deemed
to be affected by the partial termination of the Plan shall be fully (100%)
vested and nonforfeitable as of the effective date of the partial Plan
termination. The Participant's Account shall continue to participate in the
earnings credited, expenses charged and any appreciation or depreciation of the
Investment Fund until the Vested Account is distributed. A distribution under
this article will be a retirement benefit and shall be distributed to the
Participant according to the provisions of Article VI.
A Participant's Account which does not result from Contributions which are
used to compute the Actual Deferral Percentage, as defined in the EXCESS AMOUNTS
SECTION of Article III, may be distributed to the Participant after the
effective date of the complete or partial Plan termination. A Participant's
Account resulting from Contributions which are used to compute such percentage
may be distributed upon termination of the Plan without the establishment or
maintenance of another defined contribution plan, other than an employee stock
ownership plan (as defined in Code Section 4975(e) or Code Section 409) or a
simplified employee pension plan (as defined in Code Section 408(k)). Such a
distribution made after March 31,1988, must be in a single sum.
Upon complete termination of Plan, no more Employees shall become
Participants and no more Contributions shall be made.
The assets of this Plan shall not be paid to the Employer at any time,
except that, after the satisfaction of all liabilities under the Plan, any
assets remaining may be paid to the Employer. The payment may not be made if it
would contravene any provision of law.
ARTICLE VII 55 (89679)
<PAGE> 59
AMEND. NO. 2 PAGE DTD. 1-20-97
------------------------------
ARTICLE VIII
ADMINISTRATION OF PLAN
SECTION 8.01--ADMINISTRATION.
Subject to the provisions of this article, the Plan Administrator has
complete control of the administration of the Plan. The Plan Administrator has
all the powers necessary for it to properly carry out its administrative duties.
Not in limitation, but in amplification of the foregoing, the Plan Administrator
has the power to construe the Plan, including ambiguous provisions, and to
determine all questions that may arise under the Plan, including all questions
relating to the eligibility of Employees to participate in the Plan and the
amount of benefit to which any Participant, Beneficiary, spouse or Contingent
Annuitant may become entitled. The Plan Administrator's decisions upon all
matters within the scope of its authority shall be final.
Unless otherwise set out in the Plan or Group Contract, the Plan
Administrator may delegate recordkeeping and other duties which are necessary
for the administration of the Plan to any person or firm which agrees to accept
such duties. The Plan Administrator shall be entitled to rely upon all tables,
valuations, certificates and reports furnished by the consultant or actuary
appointed by the Plan Administrator and upon all opinions given by any counsel
selected or approved by the Plan Administrator.
The Plan Administrator shall receive all claims for benefits by
Participants, former Participants, Beneficiaries, spouses, and Contingent
Annuitants. The Plan Administrator shall determine all facts necessary to
establish the right of any Claimant to benefits and the amount of those benefits
under the provisions of the Plan. The Plan Administrator may establish rules and
procedures to be followed by Claimants in filing claims for benefits, in
furnishing and verifying proofs necessary to determine age, and in any other
matters required to administer the Plan.
Except as provided for hereinafter, the Plan Administrator shall direct
the Trustee as to the exercise of all voting powers over any shares of
Qualifying Employer Securities. Effective for Plan Years beginning after
December 31, 1991, each Participant shall be entitled to direct the Trustee as
to the exercise of all voting powers over shares allocated to his Account with
respect to any corporate matter which involves the voting of such shares
allocated to the Participant's Account with respect to the approval or
disapproval of a consolidation, recapitalization, reclassification, liquidation,
dissolution, sale of substantially all assets of a trade or business, or such
similar transaction as may be prescribed in Treasury Regulations.
In the event that a tender offer is made for some or all of the shares of
the Employer, each Participant shall have the right to direct whether those
shares allocated to his Account, whether or not vested, shall be tendered. This
right shall be exercised in the manner set forth herein. In the absence of a
written directive from or election by a Participant to the Plan Administrator,
the Plan Administrator shall direct the Trustee not to tender such shares.
Because the choice is to be given to the Participants, the Plan Administrator
and the Trustee shall not have fiduciary responsibility with respect to the
decision to tender or not or whether to tender all of such shares or only a
portion thereof.
In order to facilitate the decision of Participants whether to tender
their shares in a tender offer (or how many shares to tender), the Plan
Administrator shall provide election forms for the Participants, whereby they
may elect to tender or not and whereby they may elect to tender all or a portion
of such shares. Unless otherwise limited by Federal securities law, such
election may be made or changed at any time prior to the date before the
expiration date of the tender offer (with extensions); any election or change in
election must be received by the Plan Administrator, or a designated
representative of the Plan Administrator, on or before the
ARTICLE VIII 56 (89679)
<PAGE> 60
AMEND. NO. 2 PAGE DTD. 1-20-97
------------------------------
day preceding the expiration date of the tender offer (with extensions, if any).
The Plan Administrator may develop procedures to facilitate Participants'
choices, such as the use of facsimile transmissions for Employees located in
areas physically remote from the Plan Administrator. The election shall be
binding on the Plan Administrator and the Trustee. The Plan Administrator shall
make every effort to distribute the notice of the tender, election forms and
other communications related to the tender offer to all Participants as soon as
practicable following the announcement of the tender offer, including mailing
such notice and form to Participants and posting such notice in places designed
to be reviewed by Participants.
As to shares which are not allocated to the Accounts of any Participant,
all such shares (in the aggregate) shall be tendered or not as the majority of
the shares held by Participants and directed by Participants are tendered or
not. The Plan Administrator shall direct the Trustee to tender all such
unallocated shares or not, in accordance with the elections of the Participants
having an allocation of a majority of the shares under the Plan.
SECTION 8.02--RECORDS.
All acts and determinations of the Plan Administrator shall be duly
recorded. All these records, together with other documents necessary for the
administration of the Plan, shall be preserved in the Plan Administrator's
custody.
Writing (handwriting, typing, printing), Photostatting, photographing,
microfilming, magnetic impulse, mechanical or electrical recording or other
forms of data compilation shall be acceptable means of keeping records.
SECTION 8.03--INFORMATION AVAILABLE.
Any Participant in the Plan or any Beneficiary may examine copies of the
Plan description, latest annual report, any bargaining agreement, this Plan, the
Group Contract or any other instrument under which the Plan was established or
is operated. The Plan Administrator shall maintain all of the items listed in
this section in its office, or in such other place or places as it may designate
in order to comply with governmental regulations. These items may be examined
during reasonable business hours. Upon the written request of a Participant or
Beneficiary receiving benefits under the Plan, the Plan Administrator will
furnish him with a copy of any of these items. The Plan Administrator may make a
reasonable charge to the requesting person for the copy.
ARTICLE VIII 56a (89679)
<PAGE> 61
SECTION 8.04--CLAIM AND APPEAL PROCEDURES.
A Claimant must submit any required forms and pertinent information when
making a claim for benefits under the Plan.
If a claim for benefits under the Plan is denied, the Plan Administrator
shall provide adequate written notice to the Claimant whose claim for benefits
under the Plan has been denied. The notice must be furnished within 90 days of
the date that the claim is received by the Plan Administrator. The Claimant
shall be notified in writing within this initial 90-day period if special
circumstances require an extension of time needed to process the claim and the
date by which the Plan Administrator's decision is expected to be rendered. The
written notice shall be furnished no later than 180 days after the date the
claim was received by the Plan Administrator.
The Plan Administrator's notice to the Claimant shall specify the reason
for the denial; specify references to pertinent Plan provisions on which denial
is based; describe any additional material and information needed for the
Claimant to perfect his claim for benefits; explain why the material and
information is needed; inform the Claimant that any appeal he wishes to make
must be made in writing to the Plan Administrator within 60 days after receipt
of the Plan Administrator's notice of denial of benefits and that failure to
make the written appeal within such 60-day period shall render the Plan
Administrator's determination of such denial final, binding and conclusive.
If the Claimant appeals to the Plan Administrator, the Claimant, or his
authorized representative, may submit in writing whatever issues and comments
the Claimant, or his representative, feels are pertinent. The Claimant, or his
authorized representative may review pertinent Plan documents. The Plan
Administrator shall reexamine all facts related to the appeal and make a final
determination as to whether the denial of benefits is justified under the
circumstances. The Plan Administrator shall advise the Claimant of its decision
within 60 days of his written request for review, unless special circumstances
(such as a hearing) would make rendering a decision within the 60-day limit
unfeasible. The Claimant must be notified within the 60-day limit if an
extension is necessary. The Plan Administrator shall render a decision on a
claim for benefits no later than 120 days after the request for review is
received.
SECTION 8.05--UNCLAIMED VESTED ACCOUNT PROCEDURE.
At the time the Participant's Vested Account is distributable to the
Participant, spouse or Beneficiary without his consent according to the
provisions of Article VI or Article IX, the Plan Administrator, by certified or
registered mail addressed to his last known address and in accordance with the
notice requirements of Article VI, will notify him of his entitlement to a
benefit. If the Participant, spouse or Beneficiary fails to claim the Vested
Account or make his whereabouts known in writing within six months from the date
of mailing the notice, the Plan Administrator may treat such unclaimed Vested
Account as a forfeiture and apply it according to the forfeiture provisions of
Article III. If Article III contains no forfeiture provisions, such amount will
be applied to reduce the earliest employer Contributions due after the
forfeiture arises.
If a Participant's Vested Account is forfeited according to the provisions
of the above paragraph and the Participant, his spouse or his Beneficiary at any
time make a claim for benefits, the forfeited Vested Account shall be
reinstated, unadjusted for any gains or losses occurring after the date it was
forfeited. The reinstated Vested Account shall then be distributed to the
Participant, spouse or Beneficiary according to the preceding provisions of the
Plan.
ARTICLE VIII 57 (89679)
<PAGE> 62
SECTION 8.06--DELEGATION OF AUTHORITY.
All or any part of the administrative duties and responsibilities under
this article may be delegated by the Plan Administrator to a retirement
committee. The duties and responsibilities of the retirement committee shall be
set out in a separate written agreement.
ARTICLE VIII 58 (89679)
<PAGE> 63
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01 --AMENDMENTS.
The Employer may amend this Plan at any time, including any remedial
retroactive changes (within the specified period of time as may be determined by
Internal Revenue Service regulations) to comply with the requirements of any law
or regulation issued by any governmental agency to which the Employer is
subject. An amendment may not diminish or adversely affect any accrued interest
or benefit of Participants or their Beneficiaries or eliminate an optional form
of distribution with respect to benefits attributable to service before the
amendment nor allow reversion or diversion of Plan assets to the Employer at any
time, except as may be necessary to comply with the requirements of any law or
regulation issued by any governmental agency to which the Employer is subject.
No amendment to this Plan shall be effective to the extent that it has the
effect of decreasing a Participant's accrued benefit. However, a Participant's
Account may be reduced to the extent permitted under Code Section 412(c)(8). For
purposes of this paragraph, a Plan amendment which has the effect of decreasing
a Participant's Account or eliminating an optional form of benefit, with respect
to benefits attributable to service before the amendment shall be treated as
reducing an accrued benefit. Furthermore, if the vesting schedule of the Plan is
amended, in the case of an Employee who is a Participant as of the later of the
date such amendment is adopted or the date it becomes effective, the
nonforfeitable percentage (determined as of such date) of such Employee's
employer-derived accrued benefit will not be less than his percentage computed
under the Plan without regard to such amendment.
An amendment shall not decrease a Participant's vested interest in the
Plan. If an amendment to the Plan, or a deemed amendment in the case of a change
in top-heavy status of the Plan as provided in the MODIFICATION OF VESTING
REQUIREMENTS SECTION of Article X, changes the computation of the percentage
used to determine that portion of a Participant's Account attributable to
Employer Contributions which is nonforfeitable (whether directly or indirectly),
each Participant or former Participant
a) who has completed at least three Years of Service on the date the
election period described below ends (five Years of Service if the
Participant does not have at least one Hour-of-Service in a Plan
Year beginning after December 31, 1988) and
b) whose nonforfeitable percentage will be determined on any date
after the date of the change
may elect, during the election period, to have the nonforfeltable percentage of
his Account that results from Employer Contributions determined without regard
to the amendment. This election may not be revoked. An election does not need to
be provided for any Participant or former Participant whose nonforfeitable
percentage, determined according to the Plan provisions as changed, cannot at
any time be less than the percentage determined without regard to such change.
The election period shall begin no later than the date the Plan amendment is
adopted, or deemed adopted in the case of a change in the top-heavy status of
the Plan, and end no earlier than the sixtieth day after the latest of the date
the amendment is adopted (deemed adopted) or becomes effective, or the date the
Participant is issued written notice of the amendment (deemed amendment) by the
Employer or the Plan Administrator.
SECTION 9.02--DIRECT ROLLOVERS.
This section applies to distributions made on or after January 1, 1993.
Notwithstanding any provision of the Plan to the contrary that would otherwise
limit a Distributes election under this section, a Distribute may
ARTICLE IX 59 (89679)
<PAGE> 64
elect, at the time and in the manner prescribed by the Plan Administrator, to
have any portion of an Eligible Rollover Distribution paid directly to an
Eligible Retirement Plan, specified by the Distribute, in a Direct Rollover.
SECTION 9.03--MERGERS AND DIRECT TRANSFERS.
The Plan may not be merged or consolidated with, nor have its assets or
liabilities transferred to, any other retirement plan, unless each Participant
in the plan would (if the plan then terminated) receive a benefit immediately
after the merger, consolidation or transfer which is equal to or greater than
the benefit the Participant would have been entitled to receive immediately
before the merger, consolidation or transfer (if this Plan had then terminated).
The Employer may enter into merger agreements or direct transfer of assets
agreements with the employers under other retirement plans which are qualifiable
under Code Section 401(a), including an elective transfer, and may accept the
direct transfer of plan assets, or may transfer plan assets, as a party to any
such agreement. The Employer shall not consent to, or be a party to a merger,
consolidation or transfer of assets with a defined benefit plan if such action
would result in a defined benefit feature being maintained under this Plan.
The Plan may accept a direct transfer of plan assets on behalf of an
Eligible Employee. If the Eligible Employee is not an Active Participant when
the transfer is made, the Eligible Employee shall be deemed to be an Active
Participant only for the purpose of investment and distribution of the
transferred assets. Employer Contributions shall not be made for or allocated to
the Eligible Employee, until the time he meets all of the requirements to become
an Active Participant.
The Plan shall hold, administer and distribute the transferred assets as a
part of the Plan. The Plan shall maintain a separate account for the benefit of
the Employee on whose behalf the Plan accepted the transfer in order to reflect
the value of the transferred assets. Unless a transfer of assets to the Plan is
an elective transfer, the Plan shall apply the optional forms of benefit
protections described in the AMENDMENTS SECTION of Article IX to all transferred
assets. A transfer is elective if: (1) the transfer is voluntary, under a fully
informed election by the Participant; (2) the Participant has an alternative
that retains his Code Section 411(d)(6) protected benefits (including an option
to leave his benefit in the transferor plan, if that plan is not terminating);
(3) if the transferor plan is subject to Code Sections 401(a)(11) and 417, the
transfer satisfies the applicable spousal consent requirements of the Code; (4)
the notice requirements under Code Section 417, requiring a written explanation
with respect to an election not to receive benefits in the form of a qualified
joint and survivor annuity, are met with respect to the Participant and spousal
transfer election; (5) the Participant has a right to immediate distribution
from the transferor plan under provisions in the plan not inconsistent with Code
Section 401(a); (6) the transferred benefit is equal to the Participant's entire
nonforfeltable accrued benefit under the transferor plan, calculated to be at
least the greater of the single sum distribution provided by the transferor plan
(if any) or the present value of the Participant's accrued benefit under the
transferor plan payable at the plan's normal retirement age and calculated using
an interest rate subject to the restrictions of Code Section 417(e) and subject
to the overall limitations of Code Section 415; (7) the Participant has a 100%
nonforfeitable interest in the transferred benefit; and (8) the transfer
otherwise satisfies applicable Treasury regulations.
SECTION 9.04--PROVISIONS RELATING TO THE INSURER AND OTHER PARTIES.
The obligations of an Insurer shall be governed solely by the provisions
of the Group Contract. The Insurer shall not be required to perform any act not
provided in or contrary to the provisions of the Group Contract. See the
CONSTRUCTION SECTION of this article.
ARTICLE IX 60 (89679)
<PAGE> 65
Any issuer or distributor of investment contracts or securities is
governed solely by the terms of its policies, written investment contract,
prospectuses, security instruments, and any other written agreements entered
into with the Trustee.
Such Insurer, issuer or distributor is not a party to the Plan, nor bound
in any way by the Plan provisions. Such parties shall not be required to look to
the terms of this Plan, nor to determine whether the Employer, the Plan
Administrator, the Trustee, or the Named Fiduciary have the authority to act in
any particular manner or to make any contract or agreement.
Until notice of any amendment or termination of this Plan or a change in
Trustee has been received by the Insurer at its home office or an issuer or
distributor at their principal address, they are and shall be fully protected in
assuming that the Plan has not been amended or terminated and in dealing with
any party acting as Trustee according to the latest information which they have
received at their home office or principal address.
SECTION 9.05--EMPLOYMENT STATUS.
Nothing contained in this Plan gives an Employee the right to be retained
in the Employer's employ or to interfere with the Employer's right to discharge
any Employee.
SECTION 9.06--RIGHTS TO PLAN ASSETS.
No Employee shall have any right to or interest in any assets of the Plan
upon termination of his employment or otherwise except as specifically provided
under this Plan, and then only to the extent of the benefits payable to such
Employee in accordance with Plan provisions.
Any final payment or distribution to a Participant or his legal
representative or to any Beneficiaries, spouse or Contingent Annuitant of such
Participant under the Plan provisions shall be in full satisfaction of all
claims against the Plan, the Named Fiduciary, the Plan Administrator, the
Trustee, the Insurer, and the Employer arising under or by virtue of the Plan.
SECTION 9.07--BENEFICIARY.
Each Participant may name a Beneficiary to receive any death benefit
(other than any income payable to a Contingent Annuitant) that may arise out of
his participation in the Plan. The Participant may change his Beneficiary from
time to time. Unless a qualified election has been made, for purposes of
distributing any death benefits before Retirement Date, the Beneficiary of a
Participant who has a spouse who is entitled to a Qualified Preretirement
Survivor Annuity shall be the Participant's spouse. The Participant's
Beneficiary designation and any change of Beneficiary shall be subject to the
provisions of the ELECTION PROCEDURES SECTION of Article VI. It is the
responsibility of the Participant to give written notice to the Insurer of the
name of the Beneficiary on a form furnished for that purpose.
With the Employer's consent, the Plan Administrator may maintain records
of Beneficiary designations for Participants before their Retirement Dates. In
that event, the written designations made by Participants shall be filed with
the Plan Administrator. If a Participant dies before his Retirement Date, the
Plan Administrator shall certify to the Insurer the Beneficiary designation on
its records for the Participant.
If, at the death of a Participant, there is no Beneficiary named or
surviving, any death benefit under the Group Contract shall be paid under the
applicable provisions of the Group Contract.
ARTICLE IX 61 (89679)
<PAGE> 66
SECTION 9.08--NONALIENATION OF BENEFITS.
Benefits payable under the Plan are not subject to the claims of any
creditor of any Participant, Beneficiary, spouse or Contingent Annuitant. A
Participant, Beneficiary, spouse or Contingent Annuitant does not have any
rights to alienate, anticipate, commute, pledge, encumber or assign any of such
benefits, except in the case of a loan as provided in the LOANS TO PARTICIPANTS
SECTION of Article V. The preceding sentences shall also apply to the creation,
assignment, or recognition of a right to any benefit payable with respect to a
Participant according to a domestic relations order, unless such order is
determined by the Plan Administrator to be a qualified domestic relations order,
as defined in Code Section 414(p), or any domestic relations order entered
before January 1, 1985.
SECTION 9.09--CONSTRUCTION.
The validity of the Plan or any of its provisions is determined under and
construed according to Federal law and, to the extent permissible, according to
the laws of the state in which the Employer has its principal office. In case
any provision of this Plan is held illegal or invalid for any reason, such
determination shall not affect the remaining provisions of this Plan, and the
Plan shall be construed and enforced as if the illegal or invalid provision had
never been included.
In the event of any conflict between the provisions of the Plan and the
terms of any contract or policy issued hereunder, the provisions of the Plan
control the operation and administration of the Plan.
SECTION 9.10--LEGAL ACTIONS.
The Plan, the Plan Administrator, the Trustee and the Named Fiduciary are
the necessary parties to any action or proceeding involving the assets held with
respect to the Plan or administration of the Plan or Trust. No person employed
by the Employer, no Participant, former Participant or their Beneficiaries or
any other person having or claiming to have an interest in the Plan is entitled
to any notice of process. A final judgment entered in any such action or
proceeding shall be binding and conclusive on all persons having or claiming to
have an interest in the Plan.
SECTION 9.11 --SMALL AMOUNTS.
If the Vested Account of a Participant has never exceeded $3,500, the
entire Vested Account shall be payable in a single sum as of the earliest of his
Retirement Date, the date he dies, or the date he ceases to be an Employee for
any other reason. This is a small amounts payment. If a small amount is payable
as of the date the Participant dies, the small amounts payment shall be made to
the Participant's Beneficiary (spouse if the death benefit is payable to the
spouse). If a small amounts payment is payable while the Participant is living,
the small amounts payment shall be made to the Participant. The small amounts
payment is in full settlement of all benefits otherwise payable.
No other small amounts payments shall be made.
SECTION 9.12--WORD USAGE.
The masculine gender, where used in this Plan, shall include the feminine
gender and the singular words as used in this Plan may include the plural,
unless the context indicates otherwise.
ARTICLE IX 62 (89679)
<PAGE> 67
SECTION 9.13--TRANSFERS BETWEEN PLANS.
If an Employee previously participated in another plan of the Employer
which credited service under the elapsed time method for any purpose which under
this Plan is determined using the hours method, then the Employee's service
shall be equal to the sum of (a), (b) and (c) below:
a) The number of whole years of service credited to him under the
other plan as of the date he became an Eligible Employee under this
Plan.
b) One year or a part of a year of service for the applicable
service period in which he became an Eligible Employee if he is
credited with the required number of Hours-of-Service. If the
Employer does not have sufficient records to determine the
Employee's actual Hours-of-Service in that part of the service
period before the date he became an Eligible Employee, the
Hours-of-Service shall be determined using an equivalency. For
any month in which he would be required to be credited with one
Hour-of-Service, the Employee shall be deemed for purposes of
this section to be credited with 190 Hours-of-Service.
c) The Employee's service determined under this Plan using the hours
method after the end of the applicable service period in which he
became an Eligible Employee.
If an Employee previously participated in another plan of the Employer
which credited service under the hours method for any purpose which under this
Plan is determined using the elapsed time method, then the Employee's service
shall be equal to the sum of (d), (e) and (f) below:
d) The number of whole years of service credited to him under the
other plan as of the beginning of the applicable service period
under that plan in which he became an Eligible Employee under
this Plan.
e) The greater of (1) the service that would be credited to him for
that entire service period using the elapsed time method or (2)
the service credited to him under the other plan as of the date
he became an Eligible Employee under this Plan.
f) The Employee's service determined under this Plan using the
elapsed time method after the end of the applicable service
period under the other plan in which he became an Eligible
Employee.
Any modification of service contained in this Plan shall be applicable to
the service determined pursuant to this section.
If the Employee previously participated in the plan of a Controlled Group
member which credited service under a different method than is used in this
Plan, for purposes of determining eligibility and vesting the provisions above
shall apply as though the plan of the Controlled Group member were a plan of the
Employer.
ARTICLE IX 63 (89679)
<PAGE> 68
SECTION 9.14--VOTING OF STOCK.
Prior to each meeting of stockholders of the Primary Employer, each
Participant for whom Matching Contributions have been credited to his Matching
Contribution Account and have been invested in the Stock Fund will be furnished
by the Primary Employer or its transfer agent with all final proxy material
relating to such meeting, together with a form to be sent by the Participant to
the Trustee, on which he may give instructions as to the voting of all full
shares of Stock then held in the Stock Fund for his benefit. Upon receipt of
such instructions, the Trustee shall vote such shares in accordance therewith.
The Trustee shall be entitled to vote, in person or by proxy, in its sole
discretion and as it may see fit, all shares of such Stock with respect to which
voting instructions shall not have been received from Participants ten (10) days
prior to a meeting of stockholders. Fractional shares of Stock may also be voted
by the Trustee.
ARTICLE IX 64 (89679)
<PAGE> 69
ARTICLE X
TOP-HEAVY PLAN REQUIREMENTS
SECTION 10.01--APPLICATION.
The provisions of this article shall supersede all other provisions in
the Plan to the contrary.
For the purpose of applying the Top-heavy Plan requirements of this
article, all members of the Controlled Group shall be treated as one Employer.
The term Employer as used in this article shall be deemed to include all members
of the Controlled Group unless the term as used clearly indicates only the
Employer is meant.
The accrued benefit or account of a participant which results from
deductible voluntary contributions shall not be included for any purpose under
this article.
The minimum vesting and contribution provisions of the MODIFICATION OF
VESTING REQUIREMENTS and MODIFICATION OF CONTRIBUTIONS SECTIONS of Article X
shall not apply to any Employee who is included in a group of Employees covered
by a collective bargaining agreement which the Secretary of Labor finds to be a
collective bargaining agreement between employee representatives and one or more
employers, including the Employer, if there is evidence that retirement benefits
were the subject of good faith bargaining between such representatives. For this
purpose, the term "employee representatives" does not include any organization
more than half of whose members are employees who are owners, officers, or
executives.
SECTION 10.02--DEFINITIONS.
The following terms are defined for purposes of this article.
AGGREGATION GROUP means
a) each of the Employer's retirement plans in which a Key
Employee is a participant during the Year containing the
Determination Date or one of the four preceding Years,
b) each of the Employer's other retirement plans which allows
the plan(s) described in (a) above to meet the
nondiscrimination requirement of Code Section 401(a)(4) or
the minimum coverage requirement of Code Section 410, and
c) any of the Employer's other retirement plans not included
in (a) or (b) above which the Employer desires to include
as part of the Aggregation Group. Such a retirement plan
shall be included only if the Aggregation Group would
continue to satisfy the requirements of Code Section
401(a)(4) and Code Section 410.
The plans in (a) and (b) above constitute the "required" Aggregation
Group. The plans in (a), (b) and (c) above constitute the "permissive"
Aggregation Group.
COMPENSATION means, as to an Employee for any period, compensation as
defined in the CONTRIBUTION LIMITATION SECTION of Article III. For
purposes of determining who is a Key Employee, Compensation shall
include, in addition to compensation as defined in the CONTRIBUTION
LIMITATION SECTION of Article III, elective contributions. Elective
contributions are amounts which are excludable from the Employee's gross
income under Code Sections 125, 402(e)(3), 402(h) or 403(b), and
contributed by the Employer, at the
ARTICLE X 65 (89679)
<PAGE> 70
Employee's election, to a Code Section 401(k) arrangement, a simplified employee
pension, cafeteria plan or tax-sheltered annuity.
For purposes of Compensation as defined in this section, Compensation shall be
limited in the same manner and in the same time as the Compensation defined in
the DEFINITION SECTION of Article I.
DETERMINATION DATE means as to this Plan for any Year, the last day of the
preceding Year. However, if there is no preceding Year, the Determination Date
is the last day of such Year.
KEY EMPLOYEE means any Employee or former Employee (including Beneficiaries of
deceased Employees) who at any time during the determination period was
a) one of the Employer's officers (subject to the maximum below)
whose Compensation (as defined in this section) for the Year
exceeds 50 percent of the dollar limitation under Code Section
415(b)(1)(A),
b) one of the ten Employees who owns (or is considered to own, under
Code Section 318) more than a half percent ownership interest and
one of the largest interests in the Employer during any Year of
the determination period if such person's Compensation (as defined
in this section) for the Year exceeds the dollar limitation under
Code Section 415(c)(1)(A),
c) a five-percent owner of the Employer, or
d) a one-percent owner of the Employer whose Compensation (as defined
in this section) for the Year is more than $150,000.
Each member of the Controlled Group shall be treated as a separate employer for
purposes of determining ownership in the Employer.
The determination period is the Year containing the Determination Date and the
four preceding Years. If the Employer has fewer than 30 Employees, no more than
three Employees shall be treated as Key Employees because they are officers. if
the Employer has between 30 and 500 Employees, no more than ten percent of the
Employer's Employees (if not an integer, increased to the next integer) shall be
treated as Key Employees because they are officers. in no event will more than
50 Employees be treated as Key Employees because they are officers if the
Employer has 500 or more Employees. The number of Employees for any Plan Year is
the greatest number of Employees during the determination period. Officers who
are employees described in Code Section 414(q)(8) shall be excluded. If the
Employer has more than the maximum number of officers to be treated as Key
Employees, the officers shall be ranked by amount of annual Compensation (as
defined in this section), and those with the greater amount of annual
Compensation during the determination period shall be treated as Key Employees.
To determine the ten Employees owning the largest interests in the Employer, if
more than one Employee has the same ownership interest, the Employee(s) having
the greater annual Compensation shall be treated as owning the larger
interest(s). The determination of who is a Key Employee shall be made according
to Code Section 416(i)(1) and the regulations thereunder.
NON-KEY EMPLOYEE means a person who is a non-key employee within the meaning of
Code Section 416 and regulations thereunder.
PRESENT VALUE means the present value of a participant's accrued benefit under a
defined benefit plan as of his normal retirement age (attained age if later) or,
if the plan provides non-proportional subsidies, the
ARTICLE X 66 (89679)
<PAGE> 71
age at which the benefit is most valuable. The accrued benefit of any Employee
(other than a Key Employee) shall be determined under the method which is used
for accrual purposes for all plans of the Employer or if there is no one method
which is used for accrual purposes for all plans of the Employer, as if such
benefit accrued not more rapidly than the slowest accrual rate permitted under
Code Section 411(b)(1)(C). For purposes of establishing Present Value, any
benefit shall be discounted only for 7.5% interest and mortality according to
the 1971 Group Annuity Table (Male) without the 7% margin but with projection by
Scale E from 1971 to the later of (a) 1974, or (b) the year determined by adding
the age to 1920, and wherein for females the male age six years younger is used.
If the Present Value of accrued benefits is determined for a participant under
more than one defined benefit plan included in the Aggregation Group, all such
plans shall use the same actuarial assumptions to determine the Present Value.
TOP-HEAVY PLAN means a plan which is a top-heavy plan for any plan year
beginning after December 31, 1983. This Plan shall be a Top-heavy Plan if
a) the Top-heavy Ratio for this Plan alone exceeds 60 percent and
this Plan is not part of any required Aggregation Group or
permissive Aggregation Group.
b) this Plan is a part of a required Aggregation Group, but not part
of a permissive Aggregation Group, and the Top-heavy Ratio for the
required Aggregation Group exceeds 60 percent.
c) this Plan is a part of a required Aggregation Group and part of a
permissive Aggregation Group and the Top-heavy Ratio for the
permissive Aggregation Group exceeds 60 percent.
TOP-HEAVY RATIO means the ratio calculated below for this Plan or for the
Aggregation Group.
a) If the Employer maintains one or more defined contribution plans
(including any simplified employee pension plan) and the Employer
has not maintained any defined benefit plan which during the
five-year period ending on the determination date has or has had
accrued benefits, the Top-heavy Ratio for this Plan alone or for
the required or permissive Aggregation Group as appropriate is a
fraction, the numerator of which is the sum of the account
balances of all Key Employees as of the determination date and the
denominator of which is the sum of all account balances of all
employees as of the determination date. Both the numerator and
denominator of the Top-heavy Ratio are adjusted for any
distribution of an account balance (including those made from
terminated plan(s) of the Employer which would have been part of
the required Aggregation Group had such plan(s) not been
terminated) made in the five-year period ending on the
determination date. Both the numerator and denominator of the
Top-heavy Ratio are increased to reflect any contribution not
actually made as of the Determination Date, but which is required
to be taken into account on that date under Code Section 416 and
the regulations thereunder.
ARTICLE X 67 (89679)
<PAGE> 72
b) If the Employer maintains one or more defined contribution plans
(including any simplified employee pension plan) and the Employer
maintains or has maintained one or more defined benefit plans
which during the five-year period ending on the determination date
has or has had accrued benefits, the Top-heavy Ratio for any
required or permissive Aggregation Group as appropriate is a
fraction, the numerator of which is the sum of the account
balances under the defined contribution plan(s) of all Key
Employees and the Present Value of accrued benefits under the
defined benefit plan(s) for all Key Employees, and the denominator
of which is the sum of the account balances under the defined
contribution plan(s) for all employees and the Present Value of
accrued benefits under the defined benefit plans for all
employees. Both the numerator and denominator of the Top-heavy
Ratio are adjusted for any distribution of an account balance or
an accrued benefit (including those made from terminated plan(s)
of the Employer which would have been part of the required
Aggregation Group had such plan(s) not been terminated) made in
the five-year period ending on the determination date.
c) For purposes of (a) and (b) above, the value of account balances
and the Present Value of accrued benefits will be determined as of
the most recent valuation date that falls within or ends with the
12-month period ending on the determination date, except as
provided in Code Section 416 and the regulations thereunder for
the first and second plan years of a defined benefit plan. The
account balances and accrued benefits of an employee who is not a
Key Employee but who was a Key Employee in a prior year will be
disregarded. The calculation of the Top-heavy Ratio and the extent
to which distributions, rollovers and transfers during the
five-year period ending on the determination date are to be taken
into account, shall be determined according to the provisions of
Code Section 416 and regulations thereunder. The account balances
and accrued benefits of an individual who has performed no service
for the Employer during the five-year period ending on the
determination date shall be excluded from the Top-heavy Ratio
until the time the individual again performs service for the
Employer. Deductible employee contributions will not be taken into
account for purposes of computing the Top-heavy Ratio. When
aggregating plans, the value of account balances and accrued
benefits will be calculated with reference to the determination
dates that fall within the same calendar year.
Account, as used in this definition, means the value of an employee's account
under one of the Employer's retirement plans on the latest valuation date. In
the case of a money purchase plan or target benefit plan, such value shall be
adjusted to include any contributions made for or by the employee after the
valuation date and on or before such determination date or due to be made as of
such determination date but not yet forwarded to the insurer or trustee. In the
case of a profit sharing plan, such value shall be adjusted to include any
contributions made for or by the employee after the valuation date and on or
before such determination date. During the first Year of any profit sharing plan
such adjustment in value shall include contributions made after such
determination date that are allocated as of a date in such Year. The
nondeductible employee contributions which an employee makes under a defined
benefit plan of the Employer shall be treated as if they were contributions
under a separate defined contribution plan.
VALUATION DATE means, as to this Plan, the last day of the last calendar month
ending in a Year.
YEAR means the Plan Year unless another year is specified by the Employer in a
separate written resolution in accordance with regulations issued by the
Secretary of the Treasury or his delegate.
ARTICLE X 68 (89679)
<PAGE> 73
SECTION 10.03--MODIFICATION OF VESTING REQUIREMENTS.
If a Participant's Vesting Percentage determined under Article I is not at
least as great as his Vesting Percentage would be if it were determined under a
schedule permitted in Code Section 416, the following shall apply. During any
Year in which the Plan is a Top-heavy Plan, the Participant's Vesting Percentage
shall be the greater of the Vesting Percentage determined under Article I or the
schedule below.
<TABLE>
<CAPTION>
VESTING SERVICE NONFORFEITABLE
(whole years) PERCENTAGE
<S> <C>
Less than 2 0
2 20
3 40
4 60
5 80
6 or more 100
</TABLE>
The schedule above shall not apply to Participants who are not credited
with an Hour-of -Service after the Plan first becomes a Top-heavy Plan. The
Vesting Percentage determined above applies to all of the Participant's Account
resulting from Employer Contributions, including Contributions the Employer
makes before the TEFRA Compliance Date or when the Plan is not a Top-heavy Plan.
If, in a later Year, this Plan is not a Top-heavy Plan, a Participant's
Vesting Percentage shall be determined under Article I. A Participant's Vesting
Percentage determined under either Article I or the schedule above shall never
be reduced and the election procedures of the AMENDMENTS SECTION of Article IX
shall apply when changing to or from the schedule as though the automatic change
were the result of an amendment.
The part of the Participant's Vested Account resulting from the minimum
contributions required pursuant to the MODIFICATION OF CONTRIBUTIONS SECTION of
Article X shall not be forfeited because of a period of reemployment after
benefit payments have begun.
SECTION 10.04--MODIFICATION OF CONTRIBUTIONS.
During any Year in which this Plan is a Top-heavy Plan, the Employer
shall make a minimum contribution or allocation on the last day of the Year for
each person who is a Non-key Employee on that day and who either was or could
have been an Active Participant during the Year. A Non-key Employee is not
required to have a minimum number of hours-of-service or minimum amount of
Compensation, or to have had any Elective Deferral Contributions made for him in
order to be entitled to this minimum. The minimum contribution or allocation for
such person shall be equal to the lesser of (a) or (b) below:
a) Three percent of such person's Compensation (as defined in this
article).
b) The "highest percentage" of Compensation (as defined in this
article) for such Year at which the Employer's contributions are
made for or allocated to any Key Employee. The highest percentage
shall be determined by dividing the Employer Contributions made
for or allocated to each Key Employee during such Year by the
amount of his Compensation (as defined in this article), which is
not more than the maximum set out above, and selecting the
greatest quotient (expressed as a percentage). To determine the
highest percentage, all of the Employer's defined contribution
plans within the Aggregation Group shall be treated as one plan.
The provisions of this paragraph shall not
ARTICLE X 69 (89679)
<PAGE> 74
apply if this Plan and a defined benefit plan of the Employer are
required to be included in the Aggregation Group and this Plan
enables the defined benefit plan to meet the requirements of Code
Section 401(a)(4) or Code Section 410.
If the Employer's contributions and allocations otherwise required under
the defined contribution plan(s) are at least equal to the minimum above, no
additional contribution or reallocation shall be required. If the Employer's
contributions and allocations are less than the minimum above and Employer
Contributions under this Plan are allocated to Participants, any Employer
Contributions (other than those which are allocated on the basis of the amount
made for such person) shall be reallocated to provide the minimum. The remaining
Contributions shall be allocated as provided in the preceding articles of this
Plan taking into account any amount which was reallocated to provide the
minimum. If the Employer's total contributions and allocations are less than the
minimum above after any reallocation provided above, the Employer shall
contribute the difference for the Year.
The minimum contribution or allocation applies to all of the Employer's
defined contribution plans in the aggregate which are Top-heavy Plans. If an
additional contribution or allocation is required to meet the minimum above, it
shall be provided in the Employer's profit sharing plan.
A minimum allocation under a profit sharing plan shall be made without
regard to whether or not the Employer has profits.
If a person who is otherwise entitled to a minimum contribution or
allocation above is also covered under a defined benefit plan of the Employer's
which is a Top-heavy Plan during that same Year, the minimum benefits for him
shall not be duplicated. The defined benefit plan shall provide an annual
benefit for him on, or adjusted to, a straight life basis of the lesser of (c)
two percent of his average pay multiplied by his years of service or (d) twenty
percent of his average pay. Average pay and years of service shall have the
meaning set forth in such defined benefit plan for this purpose.
For purposes of this section, any employer contribution made according to
a salary reduction or similar arrangement shall not apply before the first
Yearly Date in 1985. On and after the first Yearly Date in 1989, any such
employer contributions and employer contributions which are matching
contributions, as defined in Code Section 401(m), shall not apply in determining
if the minimum contribution requirement has been met, but shall apply in
determining the minimum contribution required. Forfeitures credited to a
Participant's Account are treated as employer contributions.
The requirements of this section shall be met without regard to
contributions under Chapter 2 of the Code (relating to tax on self-employment),
Chapter 21 of the Code (relating to Federal Insurance Contributions Act), Title
11 of the Social Security Act or any other Federal or state law.
SECTION 10.05--MODIFICATION OF CONTRIBUTION LIMITATION.
If the provisions of subsection (e) of the CONTRIBUTION LIMITATION
SECTION of Article III are applicable for any Limitation Year during which this
Plan is a Top-heavy Plan, the benefit limitations shall be modified. The
definitions of Defined Benefit Plan Fraction and Defined Contribution Plan
Fraction in the CONTRIBUTION LIMITATION SECTION of Article III shall be modified
by substituting "1.0" in lieu of "1.25." The optional denominator for
determining the Defined Contribution Plan Fraction shall be modified by
substituting "$41,500" in lieu of "$51,875." In addition, an adjustment shall be
made to the numerator of the Defined Contribution Plan Fraction. The adjustment
is a reduction of that numerator similar to the modification of the Defined
Contribution Plan Fraction described in the CONTRIBUTION LIMITATION SECTION of
Article III, and shall be made with respect to the last Plan Year beginning
before January 1, 1984.
ARTICLE X 70 (89679)
<PAGE> 75
The modifications in the paragraph above shall not apply with respect to a
Participant so long as employer contributions, forfeitures or nondeductible
employee contributions are not credited to his account under this or any of the
Employer's other defined contribution plans and benefits do not accrue for such
Participant under the Employer's defined benefit plan(s), until the sum of his
Defined Contribution and Defined Benefit Plan Fractions is less than 1.0.
ARTICLE X 71 (89679)
<PAGE> 76
By executing this Plan, the Primary Employer acknowledges having counseled to
the extent necessary with selected legal and tax advisors regarding the Plan's
legal and tax implications.
Executed this 21 day of November, 1994.
THE STRONGSVILLE SAVINGS BANK
By: /s/ Barbara J. Burke
----------------------
Assistant Vice President
------------------------
/s/ John F. Ziegler
-------------------
Vice President
--------------
PLAN EXECUTION 72 (89679)
<PAGE> 77
AMENDMENT NO. 2
THE STRONGSVILLE SAVINGS BANK 401(K) RETIREMENT SAVINGS PLAN
The Plan named above gives the Employer the right to amend it at any
time. According to that right, the Plan is amended as provided below:
Effective January 20, 1997,
by striking the following:
Page 1 Page 38
Page 2 Page 41
Page 3 Page 50
Page 14 Page 56
Page 15
Page 37
and substituting the following:
Page 1 Page 38a
Page 2 Page 41
Page 3 Page 50
Page 14 Page 56
Page 15 Page 56a
Page 37
Page 38
The provisions and conditions set forth on any page of this amendment are a part
of the Plan as fully as if recited over the signature(s) below.
By signing this amendment, the Employer acknowledges having counseled to
the extent necessary with selected legal and tax advisors regarding the
amendment's legal and tax implications.
Signed this 26 day of March 1997
THE STRONGSVILLE SAVINGS BANK
By: /s/ John F. Ziegler
------------------------
Executive Vice President
------------------------
Title
(89679)
