As filed with the Securities and Exchange Commission on May 31, 2000
Registration No. 333-____
DOCSSF1:440689.2
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
FRITZ COMPANIES, INC.
(Exact name of issuer as specified in its charter)
Delaware 94-3083515
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
706 Mission Street, San Francisco, CA 94103
(Address of principal executive offices) (Zip Code)
FRITZ COMPANIES, INC.
SALARY INVESTMENT & RETIREMENT PLAN
(Full title of the plans)
Jan H. Raymond
General Counsel
FRITZ COMPANIES, INC.
706 Mission Street
San Francisco, California 94103
(Name and address of agent for service)
(415) 538-0420
(Telephone number, including area code, of agent for service)
Copy to:
Paul Borden, Esq.
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, California 94111
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to to be Offering Price Per Aggregate Offering Registration
be Registered Registered Share* Price* Fee*
<S> <C> <C> <C> <C>
-------------------------- ----------------- ----------------------- ------------------------- -----------------------
Common Stock** 1,000,000 shares $10.06 $10,060,000.00 $2,655.84
-------------------------------------------------------------------------------------------------------=====================
</TABLE>
* Estimated solely for the purpose of calculating the registration fee on
the basis of $10.06 per share, the average of the high and low prices
for the Common Stock on May 31, 2000 as reported by the NASDAQ Stock
Exchange.
** In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
<PAGE>
DOCSSF1:440689.2
7
DOCSSF1:440689.2
2
PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Certain Documents By Reference.
The following documents are incorporated by reference in this
registration statement:
(i) The Registrant's latest annual report, filed pursuant to
Section 13(a) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(ii) The plan's latest annual report, filed pursuant to
Section 13(a) of the Exchange Act.
(iii) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
document referred to in (i) above.
(iv) The description of the class of securities to be offered
under this registration statement contained in a registration statement filed
under Section 12 of the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
All documents filed by the Registrant or the Plan after the
date of this registration statement pursuant to Sections 13(a), 13(c), 14, and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment
(that indicates all securities offered have been sold or deregisters all
securities then remaining unsold), shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof from the date
of filing of such documents.
Item 4. Description Of Securities.
Inapplicable.
Item 5. Interests Of Named Experts And Counsel.
Inapplicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware Law") authorizes a Delaware corporation to indemnify
officers, directors, employees and agents of the corporation, in connection with
actual or threatened actions, suits or proceedings provided that such officer,
director, employee or agent acted in good faith and in a manner such officer
reasonably believed to be in or not opposed to the corporation's best interests,
and, for criminal proceedings, had no reasonable cause to believe his or her
conduct was unlawful. This authority is sufficiently broad to permit
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act.
The Registrant's Certificate of Incorporation provides for
indemnification of officers and directors to the fullest extent permitted by
Delaware Law. In addition, the Registrant has, and intends in the future to
enter into, agreements to provide indemnification for directors and officers in
addition to that contained in the Restated Certificate of Incorporation and
By-laws. The Registrant also carries liability insurance covering officers and
directors.
Fritz Companies, Inc. Salary Investment & Retirement Plan (the
"Plan") contains indemnification provisions, indemnifying the Plan's named
fiduciaries and any other officers or employees of Fritz Companies, Inc. to
which fiduciary duties have been delegated arising out of an alleged breach of
their fiduciary duties under the Plan and under ERISA, except those involving
gross negligence or willful misconduct.
Item 7. Exemption From Registration Claimed.
Inapplicable.
Item 8. Exhibits.
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
5.2 Undertaking re: Status of Favorable Determination
Letter Covering the Plan.
The Registrant has received a favorable determination letter from the Internal
Revenue Service (the "IRS") concerning the qualification of the Fritz Companies,
Inc. Salary Investment & Retirement Plan. The Registrant will submit the Plan,
as amended and restated, to the IRS in a timely manner with a request for a
favorable determination that the Plan, as amended and restated, continue to so
qualify.
23.1 Consent of KPMG LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in
Exhibit 5.1 to this Registration Statement.
24.1 Power of Attorney (included on signature page).
99.1 Fritz Companies, Inc. Salary Investment & Retirement Plan.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do
not apply if the registration statement is on Form S-3 or Form S-8 and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
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 registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant 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 registrant 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.
<PAGE>
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 San Francisco, State of California, on the 31th
day of May, 2000.
FRITZ COMPANIES, INC.
(Registrant)
By: /s/ John R. Skidmore
Vice President, Human Resources
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jan Raymond his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her 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 said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or her substitutes or substitute, may lawfully
do or cause to be done by virtue hereof.
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.
Signature Title Date
Principal Executive Officer:
_________________________ Chief Executive Officer May 31, 2000
/s/ Lynn C. Fritz
Principal Financial Officer:
_________________________ Executive Vice President and Chief May 31, 2000
/s/ Ronald F. Dutt Financial Officer
Principal Accounting Officer:
_________________________ Vice President, Controller May 23, 2000
/s/ Janice J. Washburn and Chief Accounting Officer
Directors:
------------------------------------------
/s/ Lynn C. Fritz Director May 23, 2000
------------------------------------------
/s/ James Gilleran Director May 23, 2000
------------------------------------------
/s/ Preston Martin Director May 23, 2000
------------------------------------------
/s/ Paul S. Otellini Director May 23, 2000
------------------------------------------
/s/ William J. Razzouk Director May 23, 2000
A majority of the members of the Board of Directors.
The Plan
Pursuant to the requirements of the Securities Act of 1933,
the Fritz Companies Salary Investment & Retirement Plan has duly caused this
registration statement to be signed on its behalf by the undersigned, hereunto
duly authorized, in the City of San Francisco, State of California, on May 23,
2000.
FRITZ COMPANIES, INC. SALARY INVESTMENT & RETIREMENT PLAN
By:
/s / Fritz Companies, Inc.
<PAGE>
EXHIBIT INDEX
Exhibit
No.
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
5.2 Undertaking re: Status of Favorable Determination Letter
Covering the Plan. The Registrant has received a favorable
determination letter from the Internal Revenue Service (the
"IRS") concerning the qualification of the Fritz Companies,
Inc. Salary Investment & Retirement Plan. The Registrant will
submit the Plan, as amended and restated, to the IRS in a
timely manner with a request for a favorable determination
that the Plan, as amended and restated, continue to so
qualify.
23.1 Consent of KPMG LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is
included in Exhibit 5.1
to this Registration Statement.
24.1 Power of Attorney (included on signature page).
99.1 Fritz Companies, Inc. Salary Investment & Retirement Plan.
<PAGE>
DOCSSF1:436761.7
60
DOCSSF1:436761.7
EXHIBIT 5.1
Opinion of Orrick, Herrington & Sutcliffe LLP
[Letterhead of Orrick, Herrington & Sutcliffe]
May 31, 2000
Fritz Companies, Inc.
706 Mission Street
San Francisco, California 94103
Attention: Jan H. Raymond
General Counsel
Dear Sirs:
Fritz Companies, Inc., a Delaware corporation, has requested
our opinion in connection with a Registration Statement on Form S-8 (the
"Registration Statement") to be filed by it today with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), relating to the shares of Common Stock, $.01 par value, of
Fritz Companies, Inc. to be issued under the Fritz Companies, Inc. Salary
Investment & Retirement Plan (the "Plan").
We have examined and are relying on originals, or copies
certified or otherwise identified to our satisfaction, of such corporate records
and such other instruments, certificates and representations of public
officials, officers and representatives of Fritz Companies, Inc. and such other
persons, and we have made such investigations of law, as we have deemed
appropriate as a basis for the opinion expressed below.
Based on the foregoing, it is our opinion that the shares of
Fritz Companies, Inc. issuable under the Plan are duly authorized and, when
issued in accordance with the terms of the Plan, at prices in excess of the par
value thereof, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. By giving such consent, we do not thereby admit
that we are experts with respect to any part of the Registration Statement,
including this exhibit, within the meaning of the term "expert" as used in the
Act or the rules and regulations of the Commission issued thereunder.
Very truly yours,
/s/ ORRICK, HERRINGTON & SUTCLIFFE LLP
<PAGE>
EXHIBIT 23.1
Consent of Independent Auditors
The Board of Directors and Stockholders
Fritz Companies, Inc.
We consent to the incorporation by reference in this registration statement on
Form S-8 of Fritz Companies, Inc. of our report dated June 28, 1999 relating to
the consolidated balance sheets of Fritz Companies, Inc. as of May 31, 1999 and
1998 and the related consolidated statements of operations, stockholders' equity
and cash flows for each of the years in the three-year period ended May 31, 1999
which report appears in the May 31, 1999 annual report on Form 10-K of Fritz
Companies, Inc..
/s/ KPMG LLP
San Francisco, California
May 31, 2000
<PAGE>
EXHIBIT 99.1
Fritz Companies, Inc.
Salary Investment & Retirement Plan
<PAGE>
FRITZ COMPANIES, INC.
SALARY INVESTMENT & RETIREMENT PLAN
(January 1, 2000 Restatement)
Preamble
Fritz Companies, Inc. established the Fritz Companies, Inc.
Salary Investment & Retirement Plan effective July 1, 1985 for the purpose of
providing retirement benefits for the Employees of Fritz Companies, Inc.
Effective January 1, 1989, the Plan was amended and restated as the Fritz
Holdings, Inc. Salary Investment & Retirement Plan (1989 Restatement). The Plan
was amended and restated in its entirety effective January 1, 1992, as the Fritz
Companies, Inc. Salary Investment & Retirement Plan (1992 Restatement). The plan
has been further amended, from time to time with Amendments No. 1, No. 2 and No.
3. The Plan is hereby amended and restated in its entirety as the Fritz
Companies, Inc., Salary Investment & Retirement Plan (2000 Restatement) to
comply with the Uruguay Round of General Agreement on Tariffs and Trade (GATT),
enacted December 8, 1994, Uniformed Services Employment & Reemployment Rights
Act of 1994 (USERRA), Small Business Job Protection Act (SBJPA) and the Taxpayer
Relief Act 1997 (TRA 97). The Plan is intended to qualify as a profit sharing
plan under Section 401(a) of the Internal Revenue Code of 1986, with a salary
reduction feature qualified under Section 401(k) of the Code.
Except as otherwise provided, the provisions of this Plan are
effective January 1, 1997. Unless the contrary rule is expressly stated, the
provisions of this Plan shall not apply to the benefits payable to or on account
of an Employee who retired or whose employment terminated prior to January 1,
1997. The rights and benefits of such an Employee shall be determined under the
terms of the Prior Plan as in effect when the Employee retired or the Employee's
employment terminated.
SECTION 1
Definitions and Construction
Unless the context clearly requires a different meaning, the
following terms have the meanings specified:
1.1 Account means the aggregate of the Participant's Salary Deferral Account,
Matching Contributions Account, Intertrans Matching Contributions Account, UWI
Matching Contributions Account, Participant Contributions Account, Intertrans
Discretionary Contributions Account and Rollover Account, as appropriate. 1.2
Actuarial Equivalent means any amount of benefits certified by the actuary
retained on behalf of the Plan to be mathematically equivalent in value to other
benefits on the basis of specified assumptions. 1.3 Administrator means the
administrator of the Plan designated in paragraph 12.6 of this Plan. 1.4 Annuity
Starting Date means the first day of the first period for which an amount is
payable as an annuity, or in the case of a benefit not payable in the form of an
annuity, the first day on which all events have occurred which entitle the
Participant to such benefit. In the case of a deferred annuity, the Annuity
Starting Date shall be the date on which the annuity payments are scheduled to
commence. 1.5 Basic Compensation means the amounts specified in this Section
1.5. (a) General Definition. Except as otherwise provided in this Section 1.5,
Basic Compensation means an Employee's
wages within the meaning of Section 3401(a) of the Code and all other
payments of compensation by an Employer to an Employee in the course of
an Employer's trade or business for which an Employer is required to
furnish the Employee a written statement on Form W-2 under Sections
6041(d) and 6051(a)(3) of the Code.
(b) Special Rule for Determining Highly Compensated Employees. For purposes
of determining the group of Highly Compensated Employees, Basic
Compensation shall include elective deferrals with respect to
employment with an Employer (i) under a qualified cash or deferred
arrangement described in Section 401(k) of the Code, or (ii) to a plan
qualified under Section 125 of the Code.
(c) Limitations on Basic Compensation. The term "Basic Compensation" shall not
include:
(i) Any amounts paid or payable by reason of services performed prior
to the date an Employee becomes a Participant;
and
(ii) Any amounts paid or payable by reason of services performed
after the Employee ceases to be a Participant. In addition, in
any Plan Year any Basic Compensation in excess of $150,000, or
such other amount
established by the Secretary of the Treasury, in accordance with Section
401(a)(17) of the Code (the "Compensation Limit"), shall be disregarded.
1.6 Beneficiary means the person or persons described in paragraph 8.5 who are
to receive benefits after the death of the Participant.
1.7 Code means the Internal Revenue Code of 1986, as amended from time to time.
1.8 Committee means the administrative committee which is provided for in
Section 12 of the Plan.
1.8A Common Stock means the common stock of the Company.
1.9 Company means Fritz Companies, Inc., a Delaware corporation.
1.10 Delayed Retirement Date means a date subsequent to the Participant's Normal
Retirement Date which is the first day of any month coinciding with or following
a Participant's Normal Retirement Date.
1.11 Determination Year means the Plan Year.
1.12 Disability means the inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
for which the Participant receives disability benefits under the federal Social
Security Act. 1.13 Discretionary Contributions means the contributions made by
an Employer pursuant to paragraph 3.5 of the Plan. 1.14 Effective Date means
January 1, 1997. 1.15 Eligible Employee means every Employee on the U.S. dollar
payroll of an Employer, except the following Employees: (a) Employees whose
compensation and conditions of employment are subject to determination by
collective bargaining,
provided that retirement entitlements have been a subject of good-faith
bargaining between an Employer and the person's lawful representative
or bargaining agent;
(b) Employees who have not attained age 21; and
(c) Employees who, as to any period of time are classified or
treated by the Company or an Employer as an independent contractor, a
consultant, a leased employee (within the meaning of section 414(n) of
the Code) or any employee of an employment agency, even if such
individual is subsequently determined to have been a common law
employee of the Company or an Employer during such period. 1.16
Employee means a person employed by an Employer, any portion of whose
income is subject to withholding of income tax and/or for whom Social
Security contributions are made by an Employer, as well as any other
person qualifying as a common law employee of an Employer. The term
"Employee" shall also include leased employees within the meaning of
Section 414(n)(2) of the Code; provided, however, if such leased
employees constitute less than 20 percent of an Employer's nonhighly
compensated work force (within the meaning of Section 414(n)(5)(C)(ii)
of the Code), the term "Employee" shall not include those leased
employees covered by a plan described in Section 414(n)(5)(B) of the
Code unless otherwise provided by the terms of the Plan.
1.16 Employer means the Company and any other corporation or trade or business
which has adopted or hereafter adopts the Plan with the approval of the Company.
A list of adopting Employers is attached to this Plan as "Appendix A" and shall
be kept current by the Committee. Effective as of January 1, 2000, "Employer"
shall mean the Company and any corporation or trade or business which is a
member of a controlled group of corporations, a group of businesses under common
control or an affiliated service group (within the meaning of Sections 414(b),
(c), (m), and (o) of the Code) of which the Company is a member,
For purposes of Section 6 (Limitations on Contributions),
Section 8 (Distribution of Benefits), Section 10 (Top-Heavy Rules) and
determining an Employee's Hours of Service, the term "Employer" includes any
corporation or trade or business which is or was a member of a controlled group
of corporations, a group of businesses under common control or an affiliated
service group (within the meaning of Sections 414(b), (c), (m), and (n) of the
Code) of which an Employer adopting the Plan is a member, and any other entity
required to be aggregated pursuant to Section 414 (o) of the Code and the
regulations thereunder.
In addition, for purposes of determining an Employee's Hours
of Service, the term "Employer" includes the entities described in the preceding
paragraph, as well as any corporation or trade or business for which a leased
employee (within the meaning of Section 414 (n) of the Code) performs services,
but only for such period as the leased employee performs such services.
1.17 Entry Date means January 1, April 1, June 1, and October 1.
1.18 ERISA means Public Law No. 93-406, the Employee Retirement Income Security
Act of 1974, as amended from time to time. 1.19 Family Member means, with
respect to any Employee, such Employee's spouse and lineal ascendants or
descendants, and the spouses of such lineal ascendants or descendants. Effective
January 1, 1997, Section 1.20 is deleted in its entirety. 1.20 Fund means the
total of all contributions made under the Plan by any Employer, increased by
interest, appreciation and experience, credits and other gains, and decreased by
annuity purchases or payments, depreciation, termination refunds, expenses, and
losses. 1.21 Highly Compensated Active Employee means any Employee who performs
services for an Employer during the Determination Year and who, during the
Look-Back Year, (a) received Basic Compensation from an Employer in excess of
$80,000 (as adjusted pursuant to sections 414(q)(1) and 415 (d) of the Code),
and (b) and was a member of the "top-paid group" for such year; provided,
however, that subject to the satisfaction of such conditions as may be
prescribed under section 414(q)(1) of the Code, the Company may elect for any
Plan Year not to apply the requirement of clause (b) above. The term Highly
Compensated Active Employee also includes an Employee who is a 5% owner at any
time during the Look-Back Year or Determination Year. An Employee shall be
considered to be in the "top-paid group" for any Look-Back Year if the Employee
is in the group consisting of the top 20% of Employees when ranked on the basis
of Basic Compensation paid during such year. 1.22 Highly Compensated Employee
means an Employee who is either a Highly Compensated Active Employee or a Highly
Compensated Former Employee. The determination of who is a Highly Compensated
Employee, including the determination of the number and identity of Employees in
the "top-paid group," will be made in accordance with Section 414(q) of the Code
and the regulations thereunder. 1.23 Highly Compensated Former Employee means an
Employee who (i) separated from service (or was deemed to have separated) prior
to the Determination Year, (ii) performs no service for an Employer during the
Determination Year, and (iii) was a Highly Compensated Active Employee for
either the separation year or any Determination Year ending on or after the
Employee's 55th birthday. 1.24 Hour of Service means: (a) An hour for which an
Employee directly or indirectly receives compensation, or is entitled to
compensation, from
an Employer for the performance of duties.
(b) An hour for which an Employee directly or indirectly receives
compensation, or is entitled to compensation, from an Employer on
account of a period of time during which no duties are performed
(irrespective of whether the employment relationship has terminated)
due to vacation, holiday, illness, incapacity (including disability),
layoff, jury duty, military duty or leave of absence.
(c) An hour for which back pay (irrespective of mitigation of damages) is
either awarded or agreed to by an Employer. The same Hours of Service
shall not be credited both under subparagraph (a) or (b) above, as the
case may be, and under this subparagraph (c).
(d) The number of hours and the computation period to which they shall be
credited shall be determined in accordance with Department of Labor
Regulations Section 2530.200b-2 (b) and (c) .
(e) Employees shall also be credited with any additional Hours of Service
required to be credited pursuant to any Federal law other than ERISA or
the Code.
(f) Effective January 1, 1995, an Employee's Hours of Service also shall
include the Employee's periods of employment with Air Compak
International on or prior to January 1, 1995, provided the Employee was
either (i) an employee of Air Compak International on December 31,
1995, or (ii) on authorized leave of absence with Air Compak
International on December 31, 1995. 1.25A Intertrans Discretionary
Contributions Account means the account maintained for each Participant
who was a
former participant in the Intertrans Plan, in the books and records of the Plan
for the purpose of recording any discretionary contributions allocated to the
Participant under the Intertrans Plan, as adjusted for earnings and losses
allocated thereto.
1.25B Intertrans Matching Contributions Account means the account
maintained for each Participant who was a former participant in the Intertrans
Plan, in the books and records of the Plan for the purpose of recording and
matching contributions allocated to the Participant under the Intertrans Plan,
as adjusted for earnings and losses allocated thereto.
1.25C Intertrans Plan means the Intertrans Corporation 401(k)
Retirement Savings Plan. 1.25 Look-Back Year means the calendar year ending with
or within the Determination Year. 1.26 Matching Contribution means a
contribution made by an Employer pursuant to paragraph 3.2. 1.27 Matching
Contributions Account means the account maintained for each Participant in the
books and records of the Plan for the purpose of recording any Matching
Contributions made by an Employer pursuant to paragraph 3.2, as adjusted for
earnings and losses allocated thereto. 1.28 Non-Highly Compensated Employee
means an Employee who is not a Highly Compensated Employee. 1.29 Normal
Retirement Age means age 65. 1.30 Normal Retirement Date means the first day of
the month coincident with or next following the date a Participant attains
Normal Retirement Age. 1.31 One-Year Break in Service means a period calculated
pursuant to paragraph 5.4. 1.32 Participant means an Eligible Employee who has
become a participant in the Plan in accordance with Section 3 and any former
Employee who is entitled to benefits under the Plan. 1.33 Participant
Contribution means an after-tax contribution made by the Participant pursuant to
Section 3.3, as adjusted for earnings and losses allocated thereto. 1.34
Participant Contributions Account means the account maintained for each
Participant in the books and records of the Plan for the purpose of recording
any Participant Contributions made by the Participant, as adjusted for earnings
and losses allocated thereto. 1.35 Plan means the Fritz Companies, Inc. Salary
Investment & Retirement Plan set forth herein, and as it may be amended from
time to time. 1.36 Plan Year means the calendar year. 1.37 Prior Plan means the
Fritz Holdings, Inc. Salary Investment & Retirement Plan, as in effect on
December 31, 1988. 1.38 Rollover Contributions means a contribution made by an
Eligible Employee or a Participant pursuant to paragraph 3.4. 1.39 Rollover
Contributions Account means the account maintained for each Eligible Employee
and Participant in the books and records of the Plan for purposes of recording
any Rollover Contributions made by such Eligible Employee or Participant
pursuant to paragraph 3.4, as adjusted for earnings and losses allocated
thereto. 1.40 Salary Deferral Account means the account maintained for each
Participant in the books and records of the Plan for purposes of recording any
Salary Deferral Contributions made by an Employer pursuant to paragraph 3.1, as
adjusted for earnings and losses allocated thereto. 1.41 Salary Deferral
Contribution means a contribution made by an Employer pursuant to paragraph 3.1.
1.42 Trust means an agreement of trust between the Company and the Trustee. 1.43
Trustee means the one or more banks, trust companies, other financial
institutions, or officer of the Company which hold and manage the funds of the
Trust.
1.44A UWI Matching Contributions Account means the account maintained
for each Participant who was a former participant in the UWI Plan, in the books
and records of the Plan for the purpose of recording and matching contributions
allocated to the Participant under the UWI Plan, as adjusted for earnings and
losses allocated thereto.
1.44B UWI Plan means the Unlimited Warehousing, Inc. Profit Sharing and
Savings Plan & Trust. 1.44 Valuation Date means the last day of the Plan Year
and such other dates determined by the Committee. 1.45 Year of Service means the
12 consecutive month period commencing on the date an Employee first performs an
Hour of Service and for which he is credited with not less than 1,000 Hours of
Service; provided that, if the service requirement is not met during the first
such 12-month period, "Year of Service" means the Plan Year that includes the
first anniversary of the date the Employee first performed an Hour of Service
(or any succeeding Plan Year) for which he is credited with not less than 1,000
Hours of Service. An Employee's Years of Service also shall include period(s) of
employment with Intertrans Corporation and Texas Crating, Inc., on or before May
30, 1995, provided that the Employee was employed by either Intertrans
Corporation or Texas Crating, Inc. on May 30, 1995. Provided further, an
Employee's Years of Service also shall include period(s) of employment with
Unlimited Warehousing, Inc., on or before July 18, 1994, provided that the
Employee was employed by Unlimited Warehousing, Inc. on July 18, 1994. 1.46 Year
of Vesting Service means periods computed under Section 5 for purposes of
determining the nonforfeitable portion of a Participant's Account. An Employee's
Years of Vesting Service also shall include period(s) of employment with
Intertrans Corporation and Texas Crating, Inc., on or before May 30, 1995,
provided that the Employee was employed by either Intertrans Corporation or
Texas Crating, Inc. on May 30, 1995. An Employee's Years of Vesting Service also
shall include period(s) of employment with Unlimited Warehousing, Inc., on or
before July 18, 1994, provided that the Employee was employed by Unlimited
Warehousing, Inc. on July 18, 1994. 1.47 Masculine pronouns used herein shall
include the feminine, the singular number shall include the plural, and the
plural shall be read as the singular. SECTION 2
Participation
2.1 An Eligible Employee who was a Participant in the Prior Plan on the
Effective Date shall become a Participant in the Plan on that date. 2.2 An
Eligible Employee who was eligible to participate in the Prior Plan on December
31, 1988 shall become a Participant in the Plan on the first Entry Date after
making the election described in paragraph 3.1. 2.3 Effective January 1, 2000,
an Eligible Employee not described in paragraph 2.1 or 2.2 shall become a
Participant following three months of employment; provided he is then an
Eligible Employee. For Plan Years beginning prior to January 1, 2000 an Eligible
Employee not described in paragraph 2.1 or 2.2 shall become a Participant on the
Entry Date on or after the date he completes one Year of Service; provided he is
then an Eligible Employee. In addition, an Eligible Employee who is an Employee
of UWI on July 18, 1994, shall become a Participant in the Plan on July 1, 1995,
provided that such Eligible Employee satisfies the service requirements of
Section 2 of the Plan. 2.4 Effective January 1, 2000, an Employee who terminates
employment after having completed three months of employment shall commence
participation again immediately upon next performing an Hour of Service as an
Eligible Employee. For Plan Years beginning prior to January 1, 2000 an Employee
who terminates employment after having completed one Year of Service shall
commence participation again immediately upon next performing an Hour of Service
as an Eligible Employee. SECTION 3
Contributions
3.1 Salary Deferral Contributions
(a) An Eligible Employee who has met the eligibility requirements set forth
in Section 2 and who desires to be a Participant in the Plan may elect
to defer any whole number percentage of his Basic Compensation from one
percent to fifteen percent; provided, however, that in no event shall
the amounts exceed the limits set forth in paragraph 6.1.
(b) The election shall be made in writing on a form prescribed by the
Administrator and must be received by the Administrator prior to the
payroll period for which the Salary Deferral Contribution is to begin.
A Participant may change, discontinue or restart the amount of his
deferral in accordance with rules established by the Committee.
(c) In lieu of paying full Basic Compensation to a Participant who has
elected to defer Basic Compensation, an Employer shall make a Salary
Deferral Contribution to the Salary Deferral Account of the Participant
equal to the amount of Basic Compensation deferred by the Participant.
(d) During a Plan Year, the Committee may, in its sole discretion (but
subject to such rules and procedures as the
Committee may prescribe), suspend or reduce the percentage of Basic
Compensation deferred by a Highly Compensated
Employee pursuant to paragraph 3.1(a) for the remainder of the Plan
Year if the Committee projects that the Plan
will not satisfy the limitations set forth in paragraph 6.3.
If the Committee subsequently projects that the
Participant's salary deferral election has been reduced below the
level necessary to satisfy the tests contained
in paragraph 6.3, the Committee may permit (subject to such rules
and procedures as the Committee may prescribe)
such Participant to increase his or her salary deferral election for
the remainder of the Plan Year to a level not
in excess of the level which the Committee projects will satisfy the
test contained in paragraph 6.3.
3.2 Matching Contributions
Effective January 1, 1999, at the end of each Plan Year an
Employer may make a Matching Contribution to the Matching Contributions
Account of each Participant who is employed on the last day of the Plan
Year (or who died, retired or incurred a Disability during such Plan
Year) and for whom Salary Deferral Contributions were made during such
Plan Year. Matching Contributions shall be equal to a percentage (to be
determined by an Employer) of the Salary Deferral Contribution made by
an Employer on behalf of the Participant.
(a) For the Plan Year beginning January 1, 1999, at the end
of such Plan Year an Employer may make a Matching Contribution to the
Matching Contributions Account of each Participant who is employed on
the last day of the Plan Year (or who died, retired or incurred an
ongoing Disability during such Plan Year) and for whom Salary Deferral
Contributions were made during such Plan Year. For Salary Deferrals
made from January 1, 2000 to May 31, 2000, an Employer shall make a
Matching Contribution to the Matching Contributions Account of each
Participant as soon as administratively feasible following May 31,
2000. For Salary Deferral Contributions made on or after June 1, 2000,
an Employer shall make a Matching Contribution after the end of each
pay period to the Matching Contributions Account of each Participant
who is employed on the last day of the pay period (or who died, retired
or incurred an ongoing Disability during such period) and for whom
Salary Deferral Contributions were made during such pay period.
(b) Matching Contributions shall be equal to a percentage of
the Participant's Basic Compensation. The percentage shall be
determined based on the pre-tax United States profits of the Company
for the Plan Year, as determined by the Compensation Committee of the
Company in its sole discretion, in accordance with the following
schedule:
Amount of Profit Match Percentage Level
Less than $5 Million 0%
$5 Million but less than $10 Million 1%
$10 Million but less than $15 Million 2%
$15 Million but less than $20 Million 3%
$20 Million or more 4%
Notwithstanding the foregoing, in no event will a Participant's
Matching Contribution for a Plan Year exceed the Salary Deferral Contribution
made by an Employer on behalf of the Participant for the Plan Year. For Salary
Deferral Contributions made from January 1, 2000 to May 31, 2000, Matching
Contributions shall be equal to 50% of the Participant's Salary Deferral
Contributions, up to 4% of the Participant's Basic Compensation. For Salary
Deferral Contributions made on or after June 1, 2000, Matching Contributions
shall be equal 50% of the Participant's Salary Deferral Contributions, up to 6%
of the Participant's Basic Compensation.
(c) Effective for Plan Years beginning on or after January 1,
1999, Matching Contributions shall be paid in cash or in the form of
shares of Common Stock, in the sole discretion of the Compensation
Committee of the Company. To the extent that Matching Contributions to
be made by Employers other than the Company are to be made in the form
of shares of Common Stock, such Employers shall transfer the amount of
their Matching Contributions to the Trustee in cash, and the Trustee
shall purchase the appropriate number of shares of Common Stock (as
determined in accordance with the paragraph (e) below) on behalf of the
Trust Fund.
(d) When Matching Contributions are to be made in the form of
shares of Common Stock, the number of shares to be contributed shall be
determined (a) by the actual purchase price, or (b) pursuant to such
other method as shall be selected by the Committee and communicated to
the Participants.
(e) When shares are purchased on behalf of the Trust Fund on
the open market, the number of shares purchased shall be based on the
actual price of such shares on the open market.
(f) Effective for Plan Years beginning on or after January 1,
1999, to the extent that an Employer Matching Contributions are made in
cash, they shall be invested in shares of Common Stock.
3.3 Participant Contributions
(a) A Participant may elect to contribute Participant Contributions to the
Plan equal to any whole number percentage of his Basic Compensation
from one percent to ten percent.
(b) The election shall be in writing on a form presented by the
Administrator and must be received by the Administrator prior to the
payroll period for which the Participant Contribution is to begin. A
Participant may change, discontinue or restart the amount of his
Participant Contributions in accordance with rules established by the
Committee.
3.4 Rollover Contributions
(a) Rollovers from Other Qualified Plans Made Prior to January 1, 1993. The
provisions of this paragraph (a) shall apply to Rollover Contributions
made to the Plan prior to January 1, 1993. An Eligible Employee who has
distributed his or her entire interest in a plan meeting the
requirements of Section 401(a) of the Code may, in accordance with
procedures approved by the Committee, transfer the distribution to the
Trustee, provided that the following conditions are met:
(i) The transfer occurs on or before the 60th day after the Eligible Employee
receives the distribution; (ii) The distribution qualifies as a qualified total
distribution within the meaning of Section 402 (a) (5) (E) (i) of
the Code;
(iii) The amount transferred does not exceed the total distribution
received by the Eligible Employee less the amount, if any,
considered contributed by him or her in accordance with
Section 401(a)(5)(E)(i) of the Code; and
(iv) The amount transferred does not exceed the total distribution
he or she received less the amount, if any, contributed by him
or her in accordance with Section 402(a)(5)(B) of the Code.
(b) Rollovers from Other Qualified Plans Made On or After January 1, 1993.
The provisions of this paragraph (b) shall apply to Rollover
Contributions made to the Plan on or after January 1, 1993. An Eligible
Employee who has distributed his or her entire interest in a plan
meeting the requirements of Section 401(a) of the Code may, in
accordance with procedures approved by the Committee, transfer the
distribution to the Trustee, provided that the following conditions are
met:
(i) The transfer is made in cash on or before the 60th day after the Eligible
Employee receives the distribution; and (ii) The distribution qualifies as an
eligible rollover distribution within the meaning of Section 402(c)(4) of the
Code.
(c) Rollovers from Individual Retirement Accounts. An Eligible Employee who
receives a distribution from an individual retirement account described
in Section 408(b) of the Code which constitutes the entire amount of
such account, and no portion of which is attributable to any source
other than a qualified total distribution (in the case of a
distribution that will be transferred to the Plan prior to January 1,
1993) or an eligible rollover distribution (in the case of a
distribution that will be transferred to the Plan on or after January
1, 1993) from a plan qualified under Section 401(a) of the Code may, in
accordance with procedures approved by the Committee, transfer the
entire amount of such distribution to the Trustee within 60 days after
receiving the distribution.
(d) Administration. The Committee shall develop such procedures, including
procedures for obtaining information from
an Eligible Employee desiring to make such a transfer, as it deems
necessary or desirable to enable it to
determine that the transfer will meet the requirements of this
Section 4. If the Administrator later determines
that an amount transferred pursuant to paragraph (a) or (b), above,
did not satisfy the requirements set forth in
those paragraphs, the Eligible Employee's Rollover Contribution
Account shall immediately be (1) segregated from
all other assets of the Plan, (2) treated as a nonqualified trust
established by and for the benefit of the
Employee, and (3) distributed to the Employee. Any such nonqualifying
Rollover Contribution shall be deemed never
to have been part of the Plan.
3.5 Discretionary Contributions
An Employer shall be permitted to make such additional
contributions to the Trust as it deems necessary in order to comply with either
the actual deferral percentage requirements of Section 401(k)(3) of the Code or
the contribution percentage requirements of Section 401(m)(2) of the Code for a
Plan Year. An Employer may designate all or any part of a Discretionary
Contribution as a contribution to the Salary Deferral Contribution portion of
the Plan which shall be used for Section 401(k) purposes or a contribution to
the Matching Contribution and Participant Contribution portion of the Plan which
shall be used for Section 401(m) purposes. Any Discretionary Contribution
designated as a contribution to the Salary Deferral Contribution portion of the
Plan shall be allocated to the Salary Deferral Contribution Accounts of
Participants as necessary to satisfy the requirements set forth in Section
401(k)(3) of the Code. Such Discretionary Contributions shall satisfy the
requirements for qualified nonelective contributions treated as elective
deferral contributions under Section 401(k)(3)(B) and (C) of the Code and shall
be subject to the withdrawal and distribution rules applicable to Salary
Deferral Contributions. Any Discretionary Contributions designated as a
contribution to the Matching Contribution and Participant Contribution portion
of the Plan shall satisfy the requirements for qualified nonelective
contributions treated as matching contributions and after-tax contributions
under Section 401(m)(4)(C) of the Code. Such contributions shall be allocated as
of the last day of such Plan Year to any or all Participants on that date, other
than Participants who are Highly Compensated Employees, in accordance with the
average of their respective Actual Deferral Percentage and/or Contribution
Percentage for such Plan Year.
3.6 Maximum Contribution
Employer contributions to the Plan shall not exceed the amount
which the Company estimates will be deductible under Section 404(a)(3), or if
applicable under Section 403(a)(7) of the Code, or any successor or similar
statutory provision hereafter enacted.
3.7 Forfeitures
Forfeitures occurring during a Plan Year shall be used to
reduce an Employer's Matching Contributions for that Plan Year, and, to the
extent there is any excess, for each successive Plan Year.
SECTION 4
Participant Accounts
4.1 Establishment of Accounts
The Administrator shall establish, as appropriate, a Salary
Deferral Account, a Matching Contributions Account, an Intertrans Matching
Contributions Account, a UWI Matching Contributions Account, a Rollover
Contributions Account, a Participant Contributions Account, an Intertrans
Discretionary Contributions Account, as appropriate, for each Participant. All
Salary Deferral Contributions made on behalf of a Participant shall be allocated
to the Participant's Salary Deferral Account. All Matching Contributions made on
behalf of a Participant shall be allocated to the Participant's Matching
Contributions Account. All matching contributions allocated to the Participant
under the Intertrans Plan shall be allocated to the Participant's Intertrans
Matching Contributions Account. All matching contributions allocated to the
Participant under the UWI Plan shall be allocated to the Participant's UWI
Matching Contributions Account. All Rollover Contributions made by a Participant
shall be allocated to the Participant's Rollover Contributions Account. All
Participant Contributions made by the Participant shall be allocated to the
Participant's Participant Contributions Account. All discretionary contributions
allocated to the Participant under the Intertrans Plan shall be allocated to the
Participant's Intertrans Discretionary Contributions Account. For each
Participant's Salary Deferral Account, Matching Contributions Account,
Intertrans Matching Contributions, UWI Matching Contributions, and Rollover
Contributions Account, the Administrator shall segregate contributions and
earnings thereon, if any, for Plan Years that begin on or after January 1, 1989
from contributions and earnings thereon, if any, for Plan Years that began prior
to December 31, 1988.
4.2 Valuation of Accounts
The assets of the Plan shall be valued on the last day of the
Plan Year and at such other times as determined by the Committee, for those
investments not invested in Common Stock. Provided further, investments held in
Common Stock will be valued as follows:
(a) Common Stock. The value of the interest of any
Participant's Account in Common Stock shall be measured in shares of Common
Stock in such manner as the determined by the Committee.
(b) Valuation of Common Stock. For all purposes of the Plan,
the Trustee shall determine the fair market value of a share of Common Stock,
which, as of any date, shall be determined (a) by the closing price of Common
Stock as reported on the NASD National Market system (or such other stock
exchange on which the Common Stock if reported) for the date of the valuation,
or (b) pursuant to such other method as shall be selected by the Committee.
4.3 Voting of Common Stock. Common Stock held in the Plan shall be voted
as follows:
(a) When Fritz Companies, Inc., prepares for any annual or
special meeting, the Company shall notify the Trustee at least thirty
(30) days in advance of the intended record date and shall cause a copy
of all proxy solicitations materials to be sent to the Trustee. If
requested by the Trustee, the Company shall certify to the Trustee that
the aforementioned materials represents the same information that is
distributed to shareholders of Fritz Companies, Inc.. Based on these
materials the Trustee shall prepare a voting instruction form and shall
provide a copy of all proxy solicitation materials to be sent to each
Plan Participant with an interest in Common Stock held in the Trust,
together with the foregoing voting instruction form to be returned to
the Trustee or its designee. The form shall show the proportional
interest in the number of full and fractional shares of Common Stock
credited to the Participant's accounts held in Common Stock.
(b) Each Participant with an interest in Common Stock under
the Plan shall have the right to direct the Trustee as to the manner in
which the Trustee is to vote (including not to vote) that number of
shares of Common Stock reflecting such Participant's proportional
interest in Common Stock (both vested and unvested). Directions from a
Participant to the Trustee concerning the voting of Common Stock shall
be communicated in writing or by such other means as is agreed upon by
the Trustee and the Company. These directions shall be held in
confidence by the Trustee and shall not be divulged to Fritz Companies,
Inc., or any adopting Employer listed under "Appendix A" of the plan,
or any officer or employee thereof, or any other person except to the
extent that the consequences of such directions are reflected in
reports regularly communicated to any such persons in the ordinary
course of the performance of the Trustee's service hereunder. Upon its
receipt of the directions, the Trustee shall vote the shares of Common
Stock reflecting the Participant's proportional interest in Common
Stock held in the Plan as directed by the Participant. Shares of Common
Stock as to which the Trustee receives no voting instructions shall not
be voted by the Trustee.
4.4 Tender of Common Stock. Each Participant whose Account is invested in Common
Stock shall have the right to direct the Trustee in writing as to the manner in
which to respond to a tender or exchange offer with respect to the shares
attributable to his or her interest in Common Stock. The Trustee shall utilize
its best efforts to distribute or cause to be distributed in a timely manner to
each Participant such information as will be distributed to shareholders of
Common Stock in connection with any such tender or exchange offer, together with
a form addressed to the Trustee soliciting the Participant's confidential,
written instructions as to whether such shares shall be tendered or exchanged.
If the Trustee receives no written directions from a Participant as to the
manner in which to respond to such a tender or exchange offer, the Trustee shall
not tender or exchange any shares of Common Stock credited to the Account of the
Participant. 4.5 Investment of Contributions (a) Each Participant may elect, on
a form provided by the Committee, to invest his Salary Deferral Account,
Rollover
Contributions Account and Participant Contributions Account in one or
more funds as selected by the Committee. Allocations to a fund shall be
made only in multiples of five percent. Effective July 1, 1991,
allocations to a fund shall be made in multiples of one percent.
(b) Effective as of June 1, 2000, Common Stock shall be added as an
investment fund under the Plan. A Participant may reallocate his
Accounts under subsections (a) (b) and (c) in accordance with rules
established by the Committee.
(c) The Company shall direct the investment of the
Participant's Matching Contributions Account, provided, however, that
after the Participant is fully vested in his Matching Contributions
Account, he may direct the investment of that Account in accordance
with rules established by the Committee.
SECTION 5
Vesting
5.1 Salary Deferral, Participant Contributions and Rollover Accounts
Amounts credited to a Participant's Salary Deferral Account,
Participant Contributions Account and Rollover Contributions Account shall at
all times be fully vested and shall not be forfeitable for any reason.
5.2 Matching Contributions Account
Amounts credited to a Participant's Matching Contributions
Account shall vest in accordance with the following schedule:
Years of Vesting Vested
Service Percentage
Less than 4 years 0%
4 years completed 40%
5 years completed 100%
Effective June 1, 2000, amounts credited (including amounts
previously credited) to a Participant's Matching Contributions Account shall
vest in accordance with the following schedule:
Years of Vesting Vested
Service Percentage
1 year completed 20%
2 years completed 40%
3 years completed 60%
4 years completed 80%
5 years completed 100%
Notwithstanding the foregoing, amounts credited to a
Participant's Matching Contributions Account shall become fully vested
upon the Participant's attainment of Normal Retirement Age, death or
Disability.
5.3 Calculation of Service
For purposes of paragraphs 5.2 (a) and (b), an Employee's
period of Service commences on the first day the Employee performs an Hour of
Service, and except as otherwise provided in paragraph 5.2 (a) or (b),
terminates on the Employee's Severance from Service Date. An Employee's
Severance from Service Date is the earlier of (i) the date he quits, retires, is
discharged or dies, or (ii) the first anniversary of his absence from work for
any other reason, including leave of absence (unless an Employer consents in
writing to an extended leave of absence, in which case an Employer shall specify
the later termination date). Notwithstanding the foregoing, an Employee's period
of Service shall also include such additional periods as may be required by law
(including such Service which must be considered pursuant to the Military
Selective Service Act, as amended), and the following periods of severance:
(a) If an Employee severs from Service by quit, discharge or retirement and
returns to work within one year, the period of severance shall be
considered as part of the Employee's Service.
(b) If the Employee is absent from work for a reason other than quit,
discharge or retirement, and while absent quits, is discharged or
retires, an Employer shall include the period between the date of quit,
retirement or discharge and the date the Employee returns to work
within the Employee's period of Service if the Employee returns to work
within one year of the date his absence first commenced. An Employee is
considered to have returned to work on the first day following his
absence on which he is credited with an Hour of Service.
5.4 One-Year Break in Service
A "One-Year Break in Service" means, with respect to any
Employee, a period of 12 consecutive months beginning on the Employee's
Severance from Service Date (as defined in Section 5.3) or anniversary thereof,
and ending on the next anniversary, provided that the Employee does not perform
an Hour of Service. However, an Employee who is absent from work by reason of
the Employee's pregnancy, the birth of a child of the Employee, or the placement
of a child with the Employee in connection with adoption of the child by the
Employee, or for the purpose of caring for such child by the Employee for a
period immediately following birth or placement shall not be considered to have
incurred a One-Year Break in Service during (i) the one-year period commencing
on the Severance from Service Date, if the Employee severs from Service other
than by quit or discharge, or (ii) the two-year period commencing on the
Severance from Service Date, if the Employee severs from Service by quit or
discharge. The preceding sentence shall not apply unless the Employee furnishes
to the Committee such timely information as the Committee may reasonably require
to establish that the absence is for a reason described in that sentence.
5.5 Termination of Employment; Forfeitures
(a) If a Participant terminates employment and the value of the
Participant's vested Account does not exceed $5,000 (and has never
exceeded $5,000) ($3,500 for Plan Years beginning before January 1,
1998), the Participant shall receive a distribution of his or her
entire vested Account in accordance with Section 8, and the nonvested
portion of the Participant's Account shall be treated as a forfeiture.
For purposes of this paragraph (a), if the value of a Participant's
vested Account is zero, the Participant shall be deemed to have
received a distribution of such vested Account.
(b) If a Participant terminates employment and the value of the
Participant's Account exceeds (or has ever exceeded) $5,000 ($3,500 for
Plan Years beginning before January 1, 1998), and the Participant
consents to receive a distribution of the vested portion of his or her
Account in accordance with paragraph 8.3(b), the nonvested portion of
his or her Account shall be treated as a forfeiture.
(c) If a Participant receives a distribution or is deemed to receive a
distribution pursuant to paragraph (a) or (b), above, and the
Participant is reemployed by an Employer, the Participant's
Employer-derived Account, determined as of the date of the
distribution, shall be restored from forfeitures, from income to the
Plan, or from Employer contributions if the Participant is reemployed
by an Employer before the Participant incurs five consecutive One-Year
Breaks in Service.
5.6 No Forfeitures for Cause
Notwithstanding anything in this Plan to the contrary, a
Participant's vested benefit shall not be forfeitable for any reason.
5.7 Amendment of Vesting Schedule
If the vesting schedule set forth in Section 5.2 is amended,
or the Plan is amended in any way that directly or indirectly affects the
computation of a Participant's vested percentage, or if the Plan is deemed
amended by an automatic change to or from a top-heavy vesting schedule, each
Participant with at least three years of Service may elect to have the
nonforfeitable percentage completed under the Plan without regard to such
amendment or change. The period during which the election may be made shall
commence with the date the amendment is adopted or deemed to be made and shall
end on the latest of: (a) 60 days after the date the amendment is adopted, (b)
60 days after the date the amendment becomes effective, or (c) 60 days after the
date the Participant is issued written notice of the amendment by an Employer or
the Administrator.
SECTION 6
Limitations on Contributions
6.1 Code Section 402(g) Limitation
(a) In no event shall a Participant be permitted to defer an amount of
Basic Compensation during any calendar year in excess of the limit
specified in Code Section 402(g) (as adjusted by the Secretary of the
Treasury pursuant to the authority of Code Section 415(d)) ($10,500 for
calendar year 2000). In determining whether the limit specified in this
paragraph is exceeded, all elective deferrals (as defined in Code
Section 402(g)(3)) made by a Participant under any qualified plan shall
be aggregated.
(b) Amounts deferred by a Participant in excess of the limits set forth in
paragraph (a), above, ("Excess Deferrals") adjusted for income or loss
pursuant to paragraph (c) below, shall be distributed to the
Participant no later than the first April 15 following the close of the
Participant's taxable year provided that the Participant notifies the
Administrator of such Excess Deferrals. Notwithstanding the foregoing,
a Participant shall be deemed to have notified the Plan of Excess
Deferrals to the extent the Participant has Excess Deferrals for the
Participant's taxable year by taking into account only elective
deferrals under the Plan and other plans of the Employers.
(c) The income or loss allocable to Excess Deferrals shall be equal to the
sum of: (i) the income or loss for the
Participant's taxable year allocable to the Participant's Salary
Deferral Contributions multiplied by a fraction,
the numerator of which is the Participant's Excess Deferrals for
the taxable year, and the denominator of which is
equal to the sum of (A) the portion of the Participant's Account
attributable to Salary Deferral Contributions at
the beginning of the Participant's taxable year, and (B) the
Participant's Salary Deferral Contributions for the
Participant's taxable year, plus (ii) ten percent of the amount
determined under clause (i), above, multiplied by
the number of whole calendar months between the end of the
Participant's taxable year and the date of
distribution. For purposes of determining the number of calendar
months that have elapsed since the end of the
Plan Year in which the Excess Deferrals were made, a distribution
occurring on the first 15 days of a calendar
month shall be deemed made on the last day of the preceding month.
A distribution occurring after the 15th day of
a calendar month shall be deemed made on the first day of the next
succeeding calendar month.
6.2 Definitions
For the purposes of paragraphs 6.3 and 6.4, the following
definitions shall be used:
(a) "Actual Deferral Percentage" means the ratio (calculated to the nearest
one-hundredth of one percent) of a Participant's Salary Deferral
Contributions, and Discretionary Contributions made on behalf of a
Participant for the Plan Year divided by the Participant's Basic
Compensation for the Plan Year. The Actual Deferral Percentage of a
Participant who has no Salary Deferral Contributions or Discretionary
Contributions made on his behalf shall be zero. A Participant's Actual
Deferral Percentage shall be computed according to the following rules:
(i) Salary Deferral Contributions and Discretionary Contributions
made on behalf of a Participant shall be taken into account
for a Plan Year only if such contributions are paid to the
Trust within two and one-half months after the end of such
Plan Year.
(ii) In the case of a Highly Compensated Employee who is eligible
to participate in two or more plans of an Employer to which
elective deferrals may be made (other than an employee stock
ownership plan as defined in Section 4975(e)(7) of the Code),
all elective deferral contributions made on behalf of the
Highly Compensated Employee must be aggregated for purposes of
determining such Highly Compensated Employee's Actual Deferral
Percentage.
(iii) If the Employers maintain two or more plans that are subject
to the requirements of Section 401(k) of the Code, and such
plans are considered as one plan for purposes of Section
401(a)(4) or 410(b) of the Code, all such plans shall be
aggregated and treated as one plan for purposes of determining
the Actual Deferral Percentage of a Participant.
(iv) Effective January 1, 1987, if an eligible Highly Compensated
Employee is either a five percent owner (as defined
in Section 416(i)(1) of the Code) or in the group of the ten
Highly Compensated Employees paid the
greatest Compensation during the Plan Year, the combined
Actual Deferral Percentage for the family group
(which includes the Highly Compensated Employee and which is
treated as one Highly Compensated Employee)
shall be determined by combining the elective deferrals,
compensation and amounts treated as elective
deferrals of all the eligible Family Members. The elective
deferrals, compensation and amounts treated as
elective deferrals of all Family Members are disregarded for
purposes of determining the Actual Deferral
Percentage of all other Highly Compensated Employees and
Non-Highly Compensated Employees. However,
effective January 1, 1997, this Section 6.2(a)(iv) is deleted
in its entirety.
(b) "Average ADP" means the average (expressed as a percentage) of the
Actual Deferral Percentage of the eligible Participants in a group.
(c) "Average ACP" means the average (expressed as a percentage) of the
Contribution Percentages of the eligible Participants in a group.
(d) "Average Percentage" means the Average ADP or the Average ACP, as
applicable.
(e) "Contribution Percentage" means the ratio (calculated to the nearest
one-hundredth of one percent) of a Participant's Matching
Contributions, Participant Contributions, Discretionary Contributions
and any Salary Deferral Contributions the Company elects to take into
account in computing the Contribution Percentage for the Plan Year to
the Participant's Basic Compensation for the Plan Year. The
Contribution Percentage of a Participant who has no Matching
Contributions and no Discretionary Contributions made on his behalf,
who makes no Participant Contributions and for whom the Company elects
to take no Salary Deferral Contributions into account shall be zero. A
Participant's Contribution Percentage shall be computed according to
the following rules:
(i) Matching Contributions made on a Participant's behalf shall be taken
into account for a Plan Year only if such
Matching Contributions are allocated to the Participant's
Account during such Plan Year and paid to the
Trust no later than the end of the 12th month following the
of such Plan Year. Participant
Contributions made by a Participant shall be taken into
account for the Plan Year in which such amounts
are contributed to the Trust at the time of payment to the
Trustee if they are transmitted to the Trust
within a reasonable period after such contributions are made.
Excess Contributions that are
recharacterized in accordance with paragraph 6.5(c) shall be
taken into account for the Plan Year that
includes the time at which such Excess Contributions are
includable in the gross income of the Participant.
(ii) In the case of a Highly Compensated Employee who is eligible
to participate in two or more plans of an Employer to which
matching contributions, after-tax contributions, or both, are
made (other than an employee stock ownership plan as defined
in Section 4975(e)(7) of the Code), all such contributions
made on behalf of the Highly Compensated Employee must be
aggregated for purposes of determining the Highly Compensated
Employee's Contribution Percentage.
(iii) If the Employers maintain two or more plans that are subject
to the requirements of Section 401(m) of the Code, and such
plans are considered as one plan for purposes of Section
401(a)(4) or 410 (b) of the Code, all such plans shall be
aggregated and treated as one plan for purposes of determining
the Contribution Percentage of a Participant.
(iv) Effective January 1, 1987, if a Highly Compensated Employee is either
a five percent owner (as defined in Section
416(i)(1) of the Code) or in the group of the ten Highly
Compensated Employees paid the greatest
Compensation during the Plan Year, the combined Contribution
Percentage for the family group (which
includes the Highly Compensated Employee and which is treated
as one Highly Compensated Employee) shall be
determined by combining the after-tax contributions,
compensation, matching contributions and amounts
treated as matching contributions of all the eligible Family
Members. The after-tax contributions,
compensation, matching contributions and amounts treated as
matching contributions of all Family Members
are disregarded for purposes of determining the Contribution
Percentage of all other Highly Compensated
Employees and Non-Highly Compensated Employees. However,
effective January 1, 1997, this Section
6.2(e)(iv) is deleted in its entirety.
(f) "Excess Aggregate Contributions" means, with respect to any Plan Year, the
excess of:
(i) the aggregate amount of the Matching Contributions and
Participant Contributions allocated to a Highly Compensated
Employee for a Plan Year, over
(ii) the maximum amount of such contributions that may be allocated
to the Highly Compensated Employee without violating the
limitations set forth in paragraph 6.3. The maximum amount
that may be allocated to a Highly Compensated Employee shall
be determined by ranking
the Highly Compensated Employees by the amount of their aggregate
Matching and Participant Contributions (the "Aggregate Contribution
Amount") in descending order and then reducing the Matching
Contributions and Participant Contributions from the Accounts of the
Highly Compensated Employees starting with the Highly Compensated
Employee with the highest Aggregate Contribution Amount to the extent
required to: (i) enable the Plan to satisfy the limitations set forth
in paragraph 6.3, or (ii) cause such Highly Compensated Employee's
Aggregate Contribution Amount to equal the Aggregate Contribution
Amount of the Highly Compensated Employee with the next highest
Aggregate Contribution Amount. This process shall be repeated until the
Plan satisfies the limitations set forth in paragraph 6.3. In no event
shall the amount of Excess Aggregate Contributions exceed the amount of
Matching Contributions and Participant Contributions made on behalf of
a Highly Compensated Employee for a Plan Year.
(g) "Excess Contributions" means, with respect to any Plan Year, the excess of:
(i) the Salary Deferral Contributions allocated to a Highly Compensated Employee
for a Plan Year, over (ii) the maximum amount of Salary Deferral Contributions
that may be allocated to such Highly Compensated Employee
without violating the limitations set forth in paragraph 6.3.
The maximum amount that may be allocated to a Highly
Compensated Employee shall be determined by ranking the Highly
Compensated Employees by amount of their Salary Deferral Contributions
(the "Salary Deferral Contribution Amount") in descending order and
then reducing the Salary Deferral Contributions from the Accounts of
the Highly Compensated Employees starting with the Highly Compensated
Employee with the highest Salary Deferral Contribution Amount to the
extent required to: (i) enable the Plan to satisfy the limitations set
forth in paragraph 6.3, or (ii) cause such Highly Compensated
Employee's Salary Deferral Contribution Amount to equal the Salary
Deferral Contribution Amount of the Highly Compensated Employee with
the next highest Salary Deferral Contribution Amount. This process
shall be repeated until the Plan satisfies the limitations set forth in
paragraph 6.3. In no event shall Excess Contributions exceed the amount
of Salary Deferral Contributions made on behalf of a Highly Compensated
Employee for a Plan Year.
6.3 Percentage Limitations on Contributions
Notwithstanding anything in the Plan to the contrary, the
Average ADP and the Average ACP of Participants must each satisfy
either the basic Limitation or the alternative Limitation set forth
below:
(a) Basic Limitation
The Average Percentage of Highly Compensated
Employees who are eligible to participate in the Plan under Section 2
(whether or not such Employees elect to have their Basic Compensation
reduced) shall not exceed for the Plan Year the Average Percentage of
Non-Highly Compensated Employees who are eligible to participate in the
Plan under Section 2 (whether or not such Employees elect to have their
Basic Compensation reduced) for the Plan Year multiplied by 1.25.
(b) Alternative Limitation
The Average Percentage of Highly Compensated
Employees who are eligible to participate in the Plan under Section 2
(whether or not such Employees elect to have their Basic Compensation
reduced) shall not exceed the Average Percentage of Non-Highly
Compensated Employees who are eligible to participate in the Plan under
Section 2 (whether or not such Employees elect to have their Basic
Compensation reduced) for the Plan Year multiplied by two, provided
that the Average Percentage of Highly Compensated Employees does not
exceed the Average Percentage of Non-Highly Compensated Employees by
more than two percentage points.
(c) Multiple Use Limitation
If both the average actual deferral percentage test
and the average contribution percentage test do not satisfy the basic
limitation set forth in paragraph (a) of this paragraph 6.3 and one or
more Highly Compensated Employees are eligible to have Salary Deferral
Contributions made on their behalf and to have Matching Contributions
made on their behalf or to make Participant Contributions to the Plan,
then the sum of the Actual Deferral Percentages of Highly Compensated
Employees plus the sum of the Contribution Percentages of Highly
Compensated Employees shall not exceed the greater of:
(i) The sum of: (A) 1.25 times the greater of the Actual Deferral
Percentages or Contribution Percentages of Non-Highly
Compensated Employees, plus (B) two percentage points plus the
lesser of the Actual Deferral Percentages or Contribution
Percentages of Non-Highly Compensated Employees; or
(ii) The sum of: (A) 1.25 times the lesser of the Actual Deferral
Percentages or Contribution Percentages of Non-Highly
Compensated Employees, plus (B) two percentage points plus the
greater of the Actual Deferral Percentages or Contribution
Percentages of Non-Highly Compensated Employees. If the
multiple use limitation set forth in this paragraph (c) is
exceeded, the Administrator shall
determine the maximum percentage to be used in place of the calculated
percentage for all Highly Compensated Employees that would reduce
either or both the Actual Deferral Percentage or Contribution
Percentage for the Highly Compensated Employees in order that the
multiple use limitation shall be satisfied. Any excess shall be handled
in the same manner that Excess Contributions or Excess Aggregate
Contributions are handled.
Notwithstanding anything in the Plan to the contrary,
effective for Plan Years beginning on or after January 1, 1998, this section 6.3
is amended in its entirety and the Average ADP and the Average ACP of
Participants must each satisfy either the basic Limitation or the alternative
Limitation set forth below:
(d) Basic Limitation
The Average Percentage for eligible Highly
Compensated Employees (those who are eligible to participate in the
Plan under Section 2, whether or not such Employees elect to have their
Basic Compensation reduced) shall not exceed for the Plan Year the
Average Percentage for eligible Non-Highly Compensated Employees (those
who are eligible to participate in the Plan under Section 2, whether or
not such Employees elect to have their Basic Compensation reduced) for
the preceding Plan Year multiplied by 1.25.
(e) Alternative Limitation
The Average Percentage of Highly Compensated
Employees who are eligible to participate in the Plan under Section 2
(whether or not such Employees elect to have their Basic Compensation
reduced) shall not exceed for the Plan Year the Average Percentage for
Non-Highly Compensated Employees who are eligible to participate in the
Plan under Section 2 (whether or not such Employees elect to have their
Basic compensation reduced) for the preceding Plan Year multiplied by
two, provided that the Average Percentage for Highly Compensated
Employees for the Plan Year does not exceed the Average Percentage for
Non-Highly Compensated Employees for the preceding Plan Year by more
than two percentage points.
(f) Multiple Use Limitation
If both the average actual deferral percentage test
and the average contribution percentage test do not satisfy the basic
limitation set forth in paragraph (a) of this paragraph 6.3 and one or
more Highly Compensated Employees are eligible to have Salary Deferral
Contributions made on their behalf and to have Matching Contributions
made on their behalf or to make Participant Contributions to the Plan,
then the sum of the Actual Deferral Percentages of Highly Compensated
Employees for the Plan Year shall not exceed the greater of:
(i) The sum of: (A) 1.25 times the greater of the
Actual Deferral Percentages or Contributions Percentages of
Non-Highly Compensated Employees for the preceding Plan Year,
plus (B) two percentage points plus the lesser of the Actual
Deferral Percentages or Contribution Percentages of Non-Highly
Compensated Employees for the preceding Plan Year; or
(ii) The sum of: (A) 1.25 times the lesser of the
Actual Deferral Percentages or Contribution Percentages of
Non-Highly Compensated Employees for the preceding Plan Year,
plus (B) two percentage points plus the greater of the Actual
Deferral Percentages or Contribution Percentages of Non-Highly
Compensated Employees for the preceding Plan Year.
If the multiple use limitation sets forth in this paragraph
(c) is exceeded, the Administrator shall determine the maximum
percentage to be used in place of the calculated percentage for all
Highly Compensated Employees that would reduce either or both the
Actual Deferral Percentage or Contribution Percentage for the Highly
Compensated Employees in order that the multiple use limitation shall
be satisfied. Any excess shall be handled in the same manner that
Excess Contributions or Excess Aggregate Contributions are handled.
6.4 Remedial Measures
If the Plan does not satisfy the requirements of paragraph 6.3
for any Plan Year, the Administrator shall take such remedial measures, as
necessary, in accordance with either paragraph 6.5 or paragraph 6.6 in order
that the limitations set forth in paragraph 6.3 are met.
6.5 Correction of Actual Deferral Percentage Test
(a) General Rules
The Administrator shall determine the Excess
Contributions for each Highly Compensated Employee in accordance with
paragraph 6.2 (g) and either: (i) distribute such amounts along with
income or loss attributable thereto, to the appropriate Highly
Compensated Employees in the manner set forth in paragraph (b) of this
paragraph 6.5; (ii) contribute a Discretionary Contribution on behalf
of each Participant who is a Non-Highly Compensated Employee in order
that the limitations in paragraph 6.3 are met; (iii) recharacterize
such amount, along with the income or loss attributable thereto, as an
After-Tax Contribution in accordance with paragraph 6.5(c); or (iv) use
any combination of (i), (ii), and (iii) to satisfy the limitations in
paragraph 6.3.
(b) Distribution of Excess Contributions
Excess Contributions and income allocable thereto
shall be distributed to Participants on whose behalf such Excess
Contributions were made no later than the last day of the Plan Year
following the Plan Year for which the Excess Contributions were made.
The amount of Excess Contributions shall be reduced in accordance with
regulations prescribed by the Secretary of the Treasury, by the amount
of the Excess Deferrals, if any, distributed to the Participant under
paragraph 6.1(b).
The income or loss attributable to Excess
Contributions shall be equal to the sum of: (i) the income or loss
allocable to Salary Deferral Contributions made on the Participant's
behalf for the Plan Year multiplied by a fraction, the numerator of
which is the Participant's Excess Contributions for the Plan Year, and
the denominator of which is equal to the sum of (A) that portion of the
Participant's Account attributable to Salary Deferral Contributions at
the beginning of the Participant's taxable year, and (B) the
Participant's Salary Deferral Contributions for the Participant's
taxable year, plus (ii) ten percent of the amount determined under
clause (i), above, multiplied by the number of whole calendar months
between the end of the Plan Year and the date of distribution, counting
the month of distribution if distribution occurs after the 15th of such
month.
(c) Recharacterization of Excess Contributions
Excess Contributions, determined in accordance with
paragraph 6.2(g), shall be recharacterized as After-Tax Contributions
no later than two and one-half months after the Plan Year to which the
recharacterization relates. In no event shall the amount of Excess
Contributions that are recharacterized exceed the amount of Salary
Deferral Contributions made on behalf of a Highly Compensated Employee
for the Plan Year. The Excess Contributions to be recharacterized shall
be reduced, in accordance with regulations prescribed by the Secretary
of the Treasury, by the amount of Excess Deferrals distributed to the
Participant under paragraph 6.1(b). Excess Contributions
recharacterized as After-Tax Contributions shall be subject to the
distribution restrictions set forth in Section 401 (k) (2) (B) of the
Code.
(d) Treatment as Annual Additions
Excess Contributions shall be treated as Annual
Additions under paragraph 6.8(b)(1).
6.6 Correction of Average Contribution Percentage Test
(a) General Rule
The Administrator shall determine the Excess
Aggregate Contributions in accordance with paragraph 6.2 (f) and
either: (i) cause such amounts along with the income or loss
attributable thereto to be forfeited, if not vested under the terms of
the Plan, or, if vested, distributed no later than the last day of the
Plan Year; (ii) contribute a Discretionary Contribution on behalf of
each Participant who is a Non-Highly Compensated Employee in order that
the limitations in paragraph 6.3 are met; or (iii) use any combination
of (i) and (ii) to satisfy the limitations in paragraph 6.3. Any
forfeiture or distribution shall be made on the basis of the respective
portion of the amount of Excess Aggregate Contributions attributable to
each Highly Compensated Employee whose Matching Contributions Account
or Participant Contributions Account received an allocation for the
preceding Plan Year.
(b) Calculation of Income
The income or loss attributable to Excess Aggregate
Contributions shall be equal to the sum of: (i) the income or loss
allocable to the Participant's Participant Contributions and Matching
Contributions, multiplied by a fraction, the numerator of which is the
Participant's Excess Aggregate Contributions for the Plan Year, and the
denominator of which is equal to the sum of (A) that portion of the
Participant's Account attributable to Participant Contributions and
Matching Contributions at the beginning of the Participant's taxable
year, plus (B) the Participant's Participant Contributions and Matching
Contributions for the Participant's taxable year, plus (ii) ten percent
of the amount determined under clause (i), above, multiplied by the
number of whole calendar months between the end of the Plan Year and
the date of the distribution, counting the month of distribution if
distribution occurs after the 15th of such month.
(c) Deadline for Distribution
Excess Aggregate Contributions and income allocable
thereto shall be distributed to Participants on whose behalf such
Excess Aggregate Contributions were made no later than the last day of
the Plan Year following the Plan Year for which such Excess Aggregate
Contributions were made. Excess Aggregate Contributions shall be
distributed from the Participant's Matching Contribution Account and
Participant Contribution Account.
(d) Treatment as Annual Additions
Excess Aggregate Contributions shall be treated as
Annual Additions under paragraph 6.8(b)(1).
6.7 Compliance with Treasury Regulations
The Plan shall satisfy the requirements of Sections 401(k)(3)
and 401(m)(2) of the Code and the regulations thereunder, and such requirements
are hereby incorporated by reference.
6.8 Limitations on Contributions and Benefits
(a) Notwithstanding any other provision of the Plan to the contrary,
contributions to the Plan shall - not exceed the
limits of this paragraph 6.8.
(b) The Annual Additions to a Participant's account (including a
Participant's Account under this Plan) for the Limitation Year shall
not exceed the lesser of (i) $30,000, or (ii) 25 percent of the
Participant's Basic Compensation for the Year. For purposes of this
paragraph 6.8, the term:
(1) "Annual Additions" means for any Limitation Year
the sum of (A) Employer contributions (including Salary
Deferral Contributions, Participant Contributions and Matching
Contributions made pursuant to this Plan) allocated to a
Participant's account in any defined contribution plan
maintained by a Member of the Controlled Group; (B)
forfeitures allocated to a Participant's account in any such
plan; and (C) Employee contributions to any such plan.
(2) "Defined Benefit Fraction" means a fraction
described in Section 415(e)(2) of the Code. (3)
"Defined Contribution Fraction" means a fraction
described in Section 415(e)(3) of the
Code.
(4) "Limitation Year" means the calendar year.
(5) "Member of the Controlled Group" means any
corporation which is a member of a controlled group of
corporations, within the meaning of Section 414 (b) of the
Code (as modified by Section 415 (h) of the Code), of which
the Company is a member, but only for the period during which
such corporation is a member of the controlled group; any
trade or business which is under common control with the
Company within the meaning of Section 414 (c) of the Code (as
modified by Section 415 (h) of the Code), but only for the
period that it is under common control; and any service
organization which is a member of an affiliated service group,
within the meaning of Section 414 (m) of the Code, of which
the Company is a member, but only for the period during which
such service organization is a member of the affiliated
service group.
(c) If as a result of a reasonable error in estimating a Participant's
Basic Compensation, or under similar facts and circumstances which the
Commissioner of Internal Revenue finds to justify the application of
this paragraph 6.8(c), the Annual Additions with respect to a
particular Participant would cause the limitations of Section 415 of
the Code to be exceeded, the Annual Additions made on behalf of a
Participant shall be reduced in the following order of priority to the
extent necessary to prevent the Annual Additions to any Participant's
Account from exceeding the limitations set forth in this paragraph 6.8:
(i) Refund of any Participant Contributions made by the
Participant to this Plan and earnings thereon to the extent
that the refund would reduce the Annual Additions;
(ii) Reduction in the Participant's allocation of Matching Contributions
and Salary Deferral Contributions and earnings
thereon under this plan for the Limitation Year in which the
excess occurs. The excess Annual Additions
so reduced, except for Salary Deferral Contributions, shall
be held in a suspense account to be allocated
to the Participant's Account in succeeding Plan Years to the
extent permissible under this paragraph 6.8.
No profits or losses attributable to the assets of the Trust
may be allocated to this suspense account.
Until all amounts held in the suspense account maintained
under this Plan (or under any other defined
contribution plan the Annual Additions of which are
aggregated with the Annual Additions to this Plan) can
be allocated, the Employers shall make no contributions
under this Plan. If the Plan terminates, any
balance remaining in the suspense account that cannot be
allocated shall revert to the Employer. The
portion of excess Annual Additions attributable to Salary
Deferral Contributions shall be distributed to
the Participant.
(d) If a Participant is also a participant in any defined benefit plan (as
defined in Section 414 (j) of the Code) maintained by an Employer or
Member of the Controlled Group, then in addition to the limitation
contained in paragraph 6.8(b), the sum of (i) the Defined Benefit
Fraction and (ii) the Defined Contribution Fraction with respect to
such Participant shall not exceed 1.0.
(e) The provisions of this paragraph 6.8 are effective January 1, 1987.
(f) Effective with the first day of the Plan Year beginning
after December 31, 1999, all references in the Plan and Trust,
including paragraphs 6.8 and 10.5 of the plan, to combined plan
limitation and 1.0 fractions shall be deleted in their entirety, as
repealed under Internal Revenue Code section 415(e).
SECTION 7
Loans and Withdrawals
7.1 Loans
(a) The Committee shall be responsible for administering loans from the
Plan and shall adopt such rules as it deems appropriate to administer
the loan program in a nondiscriminatory manner.
(b) Loans shall be available to active Participants and those inactive
Participants who are "parties in interest" as defined in Section 3(14)
of ERISA with respect to the Plan.
(c) A Participant who wishes to receive a loan shall submit an application
to the Committee indicating the name of the Participant, and the amount
of the loan requested.
(d) A loan requested by a Participant shall be approved by the Committee if
the Committee determines that the loan will comply with the provisions
of this paragraph 7.1.
(e) A loan to a Participant (when added to the outstanding balance of all
other loans from this Plan and any other qualified plan maintained by
an Employer) shall not be in an amount that exceeds the lesser of:
(i) $50,000, reduced by the excess, if any, of
(A) The highest outstanding balance of loans from the
Plan during the one-year period ending on the day
before the date such loan is made, over
(B) The outstanding balance of loans from the Plan on the date such loan is
made; or
(ii) 50% of the vested balance of the Participant's Account as of the date of
the origination of the loan. (f) The minimum amount of a loan is $1,000. (g) The
term of the loan shall be made for a term not to exceed five years unless the
purpose of the loan is the
purchase of the Participant's principal residence.
(h) The Participant shall only have one loan outstanding at any time.
(i) Each loan shall bear interest at a reasonable rate selected by the
Committee. Such rate shall provide the Trust with a return commensurate
with the interest rates charged by persons in the business of lending
money for loans which would be made under similar circumstances.
(j) Each loan shall be made and secured by collateral consisting of 50% of
the vested balance of such Participant's Account as of the origination
date of the loan, the Participant's right, title and interest in and to
the Trust, supported by the Participant's collateral promissory note
for the amount of the loan, made payable to the Trustee.
(k) If the Participant is married as of the date the loan is made and is
entitled to an annuity form of benefit under Section 8.2, the loan
shall not be made and no assignment of the Participant's interest in
his Account to secure such loan shall be accepted by the Trustee unless
the Participant's spouse has consented in writing to the loan and the
assignment of the Participant's interest in his Account during the
90-day period ending on the date on which the loan is to be so secured.
The consent of the spouse shall be in writing, shall acknowledge the
effect of the consent, and shall be witnessed by a notary public.
(l) Except in the case of a Participant who remains a "party in interest"
after separation from employment with an Employer, the outstanding
balance of a Participant's loan shall become due and payable upon the
Participant's separation from employment with the Employer by reason of
retirement, termination of employment, disability or death. For Plan
Years beginning on or after January 1, 1998, subsection (l) is amended
in its entirety and the following shall apply: No loan shall be made
unless the Participant agrees to make loan payments by payroll
deduction in accordance with rules established by the Committee
(m) In the case of active Participants loans shall be repaid through
payroll deductions of the Participant in
accordance with rules established by the Committee. Notwithstanding
the foregoing, effective for Plan Years
beginning on or after January 1, 1998, if during the term of a loan
a Participant who has been making loan
payments by payroll withholding ceases to receive periodic
compensation payments from an Employer, and if
distribution of the Participant's Account has not begun, the
Participant shall make the remaining loan payments by
check or an automatic payment method which the Committee (in its
sole discretion) determines provides security
comparable to that of payroll withholding. If a Participant who has
been making loan payments by a method
described above begins receiving periodic compensation payments from
an Employer, the Participant shall authorize
payroll withholding for the remaining loan payments.
(n) If any loan made hereunder to a Participant is not repaid in accordance
with its terms, the loan shall be in default. If a Participant defaults
on his payment obligations under the loan within 90 days of the date
that the Administrator notifies him of the default, the Administrator
shall take, or direct the Trustee to take, such action as shall be
necessary or appropriate in the circumstances then prevailing to reduce
the balance credited to the Participant's Account by the amount
required to cure the default.
(o) Every loan applicant shall receive a clear statement of the charges
involved in each loan transaction, including the dollar amount and
annual interest rate of the finance charge.
(p) All loans shall be treated as investments of the Participant's Salary
Deferral Account, Rollover Account, and, if the Participant is
partially vested in his Matching Contributions Account, of the
Participant's Matching Contributions Account. For Plan Years beginning
on or after January 1, 1998, in the event a loan is to be made to a
Participant in accordance with this Section 7.1, a loan subaccount
shall be established as an investment of the Participant under each
Account used to fund the loan. The Accounts used to fund the loan, and
the order in which Accounts are used to fund the loan, shall be
determined in accordance with uniform and nondiscriminatory procedures
adopted by the Committee and modified by it from time to time.
7.2 Hardship Withdrawals
(a) A Participant may withdraw amounts from his Salary Deferral Account and
Rollover Account if the withdrawal is necessary in light of his
immediate and heavy financial needs. The amount withdrawn shall not
exceed the amount required to meet his immediate financial obligations
and not reasonably available from his other resources. Withdrawals from
the Participant's Salary Deferral Account on account of hardship shall
be limited to the amount of contributions to such accounts, and no
amount attributable to income earned on the Participant's Salary
Deferral Contributions may be withdrawn on account of financial
hardship. Income earned on the Participant's Rollover Contributions may
be withdrawn from the Participant's Rollover Account on account of
financial hardship.
(b) For purposes of this paragraph 7.2, a distribution will be deemed to be
made on account of an immediate and heavy financial need of the
Participant if either:
(i) On the basis of all the relevant facts and circumstances the
Administrator determines that the Participant has an immediate
and heavy financial need, or
(ii) the distribution is on account of:
(A) Expenses for medical care described in Code Section
213 (d) previously incurred by the Participant, the
Participant's spouse, or the Participant's dependents
or necessary for these persons to obtain medical
care;
(B) Costs directly related to the purchase (excluding mortgage payments) of the
Participant's principal residence; (C) Payment of tuition and related
educational expenses for the next 12 months of post-secondary education for the
Participant, his or her spouse, children or
dependents;
(D) The need to prevent the eviction of the Participant
from his principal residence or foreclosure on the
Participant's principal residence.
(c) For purposes of this paragraph 7.2, a distribution will be treated as
necessary to satisfy the immediate and heavy financial need of the
Participant if either:
(i) the Administrator reasonably relies on the Participant's
representation that the amount of the distribution is not in
excess of the amount required to relieve the financial need of
the Participant and the need cannot be satisfied:
(A) Through reimbursement or compensation by insurance or otherwise;
(B) By reasonable liquidation of the Participant's assets
to the extent such liquidation would not itself cause
an immediate and heavy financial need;
(C) By cessation of elective deferral contributions and
employee contributions (including Salary Deferral
Contributions and Participant Contributions under
this Plan) under plans maintained by an Employer; or
(D) By other distributions or nontaxable (at the time of
the loan) loans from the Plan and plans maintained by
an Employer or any other employer, or by borrowing
from commercial sources on reasonable commercial
terms; or
(ii) all of the following conditions are satisfied:
(A) The Participant certifies that the distribution is
not in excess of the amount of the immediate and
heavy financial need of the Participant;
(B) The Participant has obtained all distributions and
all nontaxable (at the time of the loan) loans
currently available under all plans maintained by the
Employers;
(C) The Participant shall not be permitted to make
elective deferral contributions or after-tax employee
contributions to any qualified or nonqualified plan
of an Employer (including cafeteria plans within the
meaning of Section 125 of the Code), except for
mandatory employee contributions to a defined benefit
plan of the Employer and contributions to health or
welfare plans of the Employer, including health or
welfare plans that are part of a cafeteria plan,
within 12 months after the hardship withdrawal; and
(D) The Participant's Salary Deferral Contributions made
in the calendar year following a withdrawal on
account of a financial hardship shall not exceed
$10,000 (or such other amount determined by applying
the cost-of-living adjustment factor prescribed by
the Secretary of the Treasury under Section 415 (d)
of the Code, in accordance with the manner prescribed
by the Secretary), reduced by the Participant's
Salary Deferral Contributions which were made in the
calendar year of the hardship withdrawal.
7.3 Withdrawals from Participant Contributions Account. A Participant may
withdraw amounts from his Participant Contributions Account in accordance with
rules established by the Committee.
7.4 Withdrawal After Age 59 1/2. Effective June 1, 1995, a Participant
who has attained the age of 59 1/2 may elect to withdraw the entire balance in
his or her Account.
SECTION 8
Distribution of Benefits
8.1 Method of Distribution for Contributions Made on or After January 1,1989
When a Participant's employment ceases, whether by reason of
retirement, quit, discharge, Disability or death, the Committee shall determine
the value of the Participant's vested Account (in accordance with paragraph 4.2)
attributable to contributions made for Plan Years that begin on or after January
1, 1989 and cause that portion of the vested Account to be distributed to the
Participant, or, in the event of the Participant's death, to the Participant's
Beneficiary in a single lump sum distribution, such payment to be made as soon
as practical after the event giving rise to the distribution occurred, but in no
event later than the date required by Section 401(a)(9) of the Code and the
regulations thereunder. Notwithstanding the preceding sentence, if the value of
a Participant's vested Account exceeds $5,000 (or has ever exceeded $5,000)
($3,500 for Plan Years beginning before January 1, 1998), an immediate
distribution of the vested Account shall not be made without the Participant's
consent before the Participant attains age 65. If a Participant whose vested
Account exceeds $5,000 (or has ever exceeded $5,000) ($3,500 for Plan Years
beginning before January 1, 1998) does not consent to receive an immediate
distribution of his vested Account, or, in the case of a Participant who is
married at the time of his death, his surviving spouse does not consent to
receive an immediate distribution of the Participant's vested Account, the
vested Account shall remain invested in the Fund until the Participant attains
or would have attained age 65 or until the Participant (or the Participant's
surviving spouse) requests distribution, whichever occurs first. If the Plan
holds a security interest in the Account of a deceased Participant by reason of
a loan outstanding to such Participant, the benefit payable to the Participant's
surviving spouse or designated Beneficiary shall be reduced by the amount of
such security interest.
8.2 Method of Distribution for Contributions Made on or Before December 31, 1988
The portion of a Participant's Account attributable to
contributions made for Plan Years that commence prior to December 31, 1988,
shall be paid as either (i) a single lump sum distribution of the entire vested
balance then standing in the Participant's Account, or (ii) an annuity, in
monthly installments as follows:
(a) Unmarried Participants
In the case of a Participant who is unmarried on his
Annuity Starting Date, the Participant's benefits shall be
paid in the form of a single life annuity commencing on the
Participant's Normal Retirement Date or Delayed Retirement
Date, as the case may be. Under this form of benefit, payments
shall continue through the first day of the month in which the
Participant dies; provided, however, that if the Participant
dies before receiving payments equal to the aggregate value of
the vested portion of the Participant's Account determined as
of the date the Participant's payments commence, such payments
shall continue to the Beneficiary designated by the
Participant until the combined total of payments to the
Participant and his Beneficiary equals such aggregate value.
If the Beneficiary dies after he is eligible to receive
benefits, the commuted value of such benefits the Beneficiary
would otherwise receive shall be paid to the Beneficiary's
estate.
(b) Married Participants
In the case of a Participant who is married on his
Annuity Starting Date, the Participant's benefits shall be
paid in the form of a 50% Joint and Survivor Annuity which is
the Actuarial Equivalent of the normal form of benefit in
subparagraph (a) above and commences on the Participant's
Normal Retirement Date or Delayed Retirement Date, as the case
may be. Under the 50% Joint and Survivor Annuity, a reduced
amount shall be paid to the Participant for his life, and his
spouse, if surviving at the Participant's death, shall be
entitled to receive thereafter a lifetime survivorship pension
in a monthly amount equal to 50 percent of the amount which
had been payable to the Participant. The last payment of the
50% Joint and Survivor Annuity shall be made as of the first
day of the month in which the death of both the Participant
and his spouse has occurred; provided, however, that if the
Participant's spouse dies before the Participant and the
Participant's spouse have received payments equal to the
vested portion of the Participant's Account as of the date
payments commenced, the value of such benefits the spouse
would otherwise receive shall be paid to the spouse's
beneficiary.
(c) Optional Forms of Benefit Payment
In lieu of the benefit otherwise payable under
subparagraphs (a) and (b) above, a Participant may elect: (i)
to receive one of the Actuarial Equivalent optional forms of
benefits available under the Prior Plan, or (ii) to have the
form of benefit payable under subparagraphs (a) and (b) above
commence at any time after the Participant separates from
service with an Employer.
8.3 Election of Optional Benefit Form
(a) Notice of Distribution
The Administrator shall provide each Participant
entitled to receive a distribution under paragraph 8.2 with a
general notice of distribution no less than 30 and no more
than 90 days before the Participant's Annuity Starting Date.
Such notice must be in writing and contain an explanation of
the eligibility requirements for, the material features of,
and sufficient additional information to explain, the relative
values of the alternate forms of benefits available under
paragraph 8.2, and the Participant's right to defer receipt of
distribution of his benefits until he attains Normal
Retirement Age. If the Participant is married at the time he
receives the general notice of distribution, the notice also
shall include the terms and conditions of the 50% Joint and
Survivor Annuity, the Participant's right to make, and the
effect of, an election to waive the 50% Joint and Survivor
Annuity, the rights of the Participant's spouse, and the right
to make, and the effect of, a revocation of an election to
waive the 50% Joint and Survivor Annuity.
(b) Election of Optional Benefit Form
Upon receipt of the general notice of distribution, a
Participant may elect to receive his benefits in an optional
form of payment set forth in paragraph 8.2(c). The election
period shall end on the date specified by the Administrator,
but in any event no earlier than the date which is 90 days
prior to the Participant's Annuity Starting Date, and shall
include a period of at least 90 days following the furnishing
of the general distribution notice required to be furnished
pursuant to subparagraph (a), or, if the Participant makes a
timely request for additional information pursuant to
subparagraph (a), at least 60 days following the date such
specific information is furnished to the Participant. Benefit
payments shall be delayed if necessary to provide the full
election period. Any election made under this paragraph may be
revoked in writing during the election period and, after the
election has been revoked, another election may be made during
the election period.
(c) Spousal Consent Requirement
Notwithstanding anything in this Plan to the
contrary, a married Participant's election to receive benefits
in a form other than the 50% Joint and Survivor Annuity shall
not be effective unless the Participant's spouse consents to
such election. The consent of the spouse shall (i) be in
writing on a form satisfactory to the Committee, (ii)
designate a form of benefits and a Beneficiary which may not
be changed without spousal consent (or the consent of the
spouse must expressly permit designations by the Participant
without any further requirement of consent by the spouse),
(iii) acknowledge the effect of the consent, and (iv) be
witnessed by a Plan representative or notary public. No
consent is required if it is established to the satisfaction
of the Committee that consent cannot be obtained because there
is no spouse or the spouse cannot be located. A former
spouse's waiver shall not be binding on a new spouse.
8.4 Cash-Out of Small Benefits
Notwithstanding anything in this Plan to the contrary, if a
Participant's Account does not exceed $5,000 (and has never exceeded $5,000)
($3,500 for Plan Years beginning before January 1, 1998), the Participant shall
receive benefits in the form of a single sum payment within a reasonable time
after the Participant separates from service. Such a Participant shall not have
a right to receive the general notice of distribution set forth in paragraph
8.3(a).
8.4A Form of Lump Sum Distribution
(a) Cash. With respect to any portion of a Participant's
Account that is not invested in Common Stock, any lump sum distribution
from such portion of the Account shall be made in the form of a single
lump sum payment of cash (or its equivalent) equal to the vested
balance credited to such portion of the Account as of the relevant
Valuation Date.
(b) Common Stock. Any lump sum distribution from such portion
of a Participant's Account that is invested in Common Stock as of the
Valuation Date shall be made in the form of a single lump sum payment
of such whole number of shares of Common Stock as is equivalent to the
full value of the shares of Common Stock then credited to such portion
of the Account.
(c) Fractional Shares. If shares of Common Stock are to be
distributed, only full shares shall be distributed and cash (or its
equivalent) shall be distributed in lieu of any fractional share.
This Section 8.4A is effective for Plan Years beginning on or
after January 1, 1999.
8.5 Designation of Beneficiary
Each Participant shall have the right, with the consent of his
or her spouse if he or she is married, to designate on forms provided by the
Administrator a Beneficiary or Beneficiaries to receive the benefits provided by
the Plan in the event of his or her death, and shall have the right to revoke
the designation, or, with the consent of his or her spouse if he or she is
married, to substitute another Beneficiary or Beneficiaries. The consent of the
spouse shall (i) be in writing on a form satisfactory to the Committee, (ii)
designate a Beneficiary which may not be changed without spousal consent (or the
consent of the spouse must expressly permit designations by the Participant
without any further requirement of consent by the spouse), (iii) acknowledge the
effect of the consent, and (iv) be witnessed by a Plan representative or notary
public. No consent is required if it is established to the satisfaction of the
Committee that consent cannot be obtained because there is no spouse or the
spouse cannot be located. If upon the death of a Participant there is no valid
designation of Beneficiary on file with the Employer, the Committee shall
designate the Participant's spouse as the Beneficiary. If there ,is no spouse or
the spouse consents in the manner provided above, the Beneficiary shall be the
Participant's estate.
8.6 Required Distribution
(a) Notwithstanding anything in this Plan to the contrary, all forms of
distribution must comply with the requirements
of Section 401(a)(9) of the Code and the regulations issued
thereunder, including the incidental death benefit
rule of Section 401(a)(9)(G) of the Code. A Participant's benefits
shall commence no later than April 1 of the
calendar year following the calendar year in which the Participant
attains age 70-1/2. However, effective for
Plan Years beginning on or after January 1, 1998, a Participant's
benefits shall commence no later than April 1 of
the calendar year in which the Participant attains age 70 1/2or
terminates his or her employment with all Employers
(whichever is later), provided however, that the benefits of a
Participant who is a 5% owner shall commence no
later than April 1 of the calendar year in which the Participant
attains age 70 1/2.
(b) To the extent not inconsistent with Section 8.2, payment of the balance
in the Participant's vested Account shall begin no later than the 60th
day after the latest of the close of the Plan Year in which: (A) the
Participant attains Normal Retirement Age; (B) occurs the tenth
anniversary of the year in which the Participant commenced
participation in the Plan; or (C) the Participant terminates service
with his or her Employer.
8.7 Infants, Incompetents
If the Committee determines that any person entitled to payments under the
Plan is an infant or incompetent by reason of physical or mental
disability, it may cause any payment due to such person to be made to any
other person for his benefit, without responsibility to follow the
application of amounts so paid. Payments made pursuant to this provision
shall completely discharge the Employer, the Trustee, and the Committee.
8.8 Payment to Alternate Payee
Distribution to an "alternate payee" (as defined in Section
414(p)(8) of the Code) may be made without regard to the age or employment
status of the Participant provided payment is made pursuant to a court order
which the Administrator has determined to be a "qualified domestic relations
order" (within the meaning of Section 414(p)(1) of the Code) in accordance with
procedures established by the Committee. If the amount to be distributed to an
alternate payee exceeds $5,000 (or has ever exceeded $5,000) ($3,500 for Plan
Years beginning before January 1, 1998), distribution shall not be made without
the alternate payee's written consent until the Participant attains Normal
Retirement Age.
8.9 Direct Rollover Requirements.
(a) General Rule. This Section 8.9 applies to distributions made on or
after January 1, 1993. Notwithstanding any provisions of the Plan to
the contrary that would otherwise limit a Distributee's election under
this Section 8.9 a Distributee may elect, at the time and in the manner
prescribed by the Plan Administrator, to have any portion of an
Eligible Rollover Distribution paid directly to an Eligible Retirement
Plan specified by the Distributee in a Direct Rollover.
(b) Definitions. For purposes of this Section 8.9
(i) "Eligible Rollover Distribution" means any distribution of all or any
portion of the balance to the credit of the
Distributee, except that an Eligible Rollover Distribution
does not include: any distribution that is one
of a series of substantially equal periodic payments (not
less frequently than annually) made for the life
(or life expectancy) of the Distributee or the joint lives
(or joint life expectancies) of the Distributee
and the Distributee's designated beneficiary, or for a
specified period of ten years or more; any
distribution to the extent such distribution is required
under Section 401(a)(9) of the Code; and the
portion of any distribution that is not includible in gross
income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities).
(ii) "Eligible Retirement Plan" means an individual retirement
account described in Section 408(a) of the Code, an individual
retirement annuity described in Section 408 (b) of the Code,
an annuity plan described in Section 403 (a) of the Code, or a
qualified trust described in Section 401(a) of the Code, that
accepts the Distributee's Eligible Rollover Distribution.
However, in the case of an Eligible Rollover Distribution to
the surviving spouse, an Eligible Retirement Plan is an
individual retirement account or individual retirement
annuity.
(iii) "Distributee" means an Employee or former Employee. In
addition, the term "Distributee" means 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 Section 414 (p) of the Code with regard to the interest of
the spouse or former spouse.
(iv) "Direct Rollover" means a payment by the Plan to the Eligible Retirement
Plan specified by the Distributee. SECTION 9
Death Benefits
9.1 Contributions Made on or Before December 31, 1988
If a Participant dies prior to his Annuity Starting Date, the
portion of the Participant's Account attributable to contributions made for Plan
Years that begin before December 31, 1988 shall be distributed as provided in
paragraphs 9.2 through 9.3.
(a) Unmarried Participants
If the Participant is not married on the date of his
death, his entire interest shall be distributed in a single sum
distribution, such payment to be made as soon as practical after the
event giving rise to the distribution occurred, but in no event later
than the date required by Section 401(a)(9) of the Code and the
regulations issued thereunder.
(b) Married Participants
If the Participant is married on the date of his
death, 50% of the vested portion of his Account attributable to
contributions made for Plan Years beginning before December 31, 1988
(and earnings thereon) shall be used to purchase an annuity for the
life of the Eligible Spouse ("Qualified Pre-Retirement Survivor
Annuity") unless otherwise elected as provided below. In determining
the amount of a Participant's Account attributable to contributions
made for Plan Years beginning before December 31, 1988, any security
interest held by the Plan by reason of a loan outstanding to the
Participant shall be taken into account. The portion of the
Participant's vested account not applied to the purchase of the
Qualified Pre-Retirement Survivor Annuity shall be distributed to the
Participant's Beneficiary as set forth in paragraph 8.2(c). The
Participant's spouse shall be able to direct commencement of the
Qualified Pre-Retirement Survivor Annuity on the first day of any month
on or after the date of the Participant's death and before the date the
Participant would have attained age 70-1/2. If the Participant's spouse
dies before benefits commence under this subparagraph (b), death
benefits payable under this subparagraph (b), if any, shall be paid to
the spouse's beneficiary. In lieu of the benefit otherwise payable
under subparagraph (b), in accordance with rules established by the
Committee, a Participant's spouse may elect to receive the Actuarial
Equivalent of the qualified Pre-Retirement Survivor Annuity in any of
the Optional forms of benefits available under the Prior Plan.
9.2 Explanation of Qualified Pre-Retirement Survivor Annuity
During the Applicable Election Period, the Administrator shall
provide each Married Participant who has an Account attributable to
contributions made for Plan Years that begin before December 31, 1988, a written
explanation of the terms, conditions and value of the Qualified Pre-Retirement
Survivor Annuity in such terms and in such manner as would be comparable to the
general notice of distribution provided pursuant to Section 8.1(c)(i), such
notice shall set forth (i) the terms, conditions, material features and
sufficient information to explain the relative values of the alternate forms of
benefits available under the Prior Plan, (ii) the Participant's right to make,
and the effect of, an election to waive the Qualified Pre-Retirement Survivor
Annuity, (iii) the rights of Participant's spouse with respect to the Qualified
Pre-Retirement Survivor Annuity, and (iv) the right to make, and the effect of,
a revocation of an election to waive the Qualified Pre-Retirement Survivor
Annuity. For purposes of this paragraph 9.2, "Applicable Period," with respect
to a Participant, means the later of 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, and the period commencing one year before and ending one year after the
Employee becomes a Participant. Notwithstanding the foregoing, the Applicable
Period for a Participant who separates from service before attaining age 35
shall be the period beginning one year before and ending one year after the
Participant's separation from service.
9.3 Waiver of Qualified Pre-Retirement Survivor Annuity
A Participant may elect to waive the Qualified Pre-Retirement
Survivor Annuity, revoke such election, and again Waive the Qualified
Pre-Retirement Survivor Annuity at any time and any number of times during the
Applicable Election Period. All such elections and revocations shall be in
writing. Any election to waive a Qualified Pre-Retirement Survivor Annuity must
be accompanied by (i) the designation of a specific nonspouse beneficiary
(including any class of beneficiaries or any contingent beneficiaries) who will
receive the benefit upon the Participant's death, and (ii) a written spousal
consent acknowledging the effect of the waiver and witnessed by a notary public
or a plan representative (if a plan representative has been designated for this
purpose). For the purposes of this paragraph 9.3, the "Applicable Election
Period" shall commence when the Participant receives a written explanation
pursuant to paragraph 9.2 or on the first day of the Plan Year in which the
Participant attains age 35, whichever occurs earlier. Any waiver made prior to
the first day of the Plan Year in which the Participant attained age 35 shall
become invalid as of such date, and a new waiver must be issued in order for a
waiver of a qualified Pre-Retirement Survivor Annuity to be effective.
9.4 Contributions Made on or After January 1, 1989
Except as otherwise provided in paragraph 8.1, no death
benefits shall be provided under this Plan for the portion of the Participant's
Account attributable to contributions made for Plan Years that begin on or after
January 1, 1989.
9.5 Cash-Out of Small Benefits
Notwithstanding anything in this Section 9 to the contrary, if
the Participant's Account does not exceed $5,000 (and has never exceeded $5,000)
($3,500 for Plan Years beginning before January 1, 1998) at the time of the
Participant's death, payment shall be made in a single payment within a
reasonable time after the Participant's death.
SECTION 10
Top-Heavy Rules
10.1 General Rule
Notwithstanding anything in this Plan to the contrary, the
provisions of this Section 10 will apply in the event that the Plan is
determined to be a "top-heavy plan" under Section 416 of the Code.
10.2 Definitions
For purposes of this Section:
(a) "Determination Date" means, in the case of the first Plan Year, the
last day of such Plan Year, or, in the case of any other Plan Year, the
last day of the preceding Plan Year. When more than one plan is
aggregated, the determination of whether the plans are Top-Heavy shall
be made at a time consistent with regulations issued by the Secretary
of the Treasury.
(b) "Key Employee" means an Employee or former Employee and his
Beneficiaries who, within the meaning of Section 416(i) of the Code and
the regulations thereunder, is or at any time during the four preceding
Plan Years has been:
(i) An officer of an Employer whose annual Compensation exceeds 50% of
the amount in effect under Section 415 (b) (1)
(A) of the Code for any such Plan Year;
(ii) One of the ten Employees whose Compensation from an Employer
exceeds the limitation in effect under Section 415(c)(1)(A)
and who owns or is considered as owning more than a 1/2%
ownership interest and one of the ten largest percentage
ownership interests in an Employer;
(iii) A 5% owner of an Employer; or
(iv) A to owner of an Employer having an annual Compensation of more than
$150,000.
For purposes of this definition, no more than 50 Employees
(or, if less than 50, either three Employees or ten percent of all
Employees, whichever is greater) shall be treated as officers. For
purposes of determining the number of officers taken into account,
Employees described in Section 414(q)(8) of the Code shall be excluded.
In addition, for purposes of determining ownership percentages
hereunder, the constructive ownership rules of Section 318 of the Code
shall apply as provided by Section 416(i)(1)(B) of the Code. For
purposes of paragraph (ii) above, if two Employees have the same
interest in an Employer, the Employee having greater annual
Compensation from the Employer shall be treated as having a larger
interest. Beneficiaries of Key Employees shall be considered Key
Employees.
(c) "Non-Key Employee" means any Employee who is not a Key Employee.
(d) "Permissive Aggregation Group" means any other plans which the Company,
in its discretion, elects to aggregate with the Required Aggregation
Group, provided that the resulting group of plans satisfies Sections
401(a)(4) and 410 of the Code.
(e) "Required Aggregation Group" means (i) each plan of an Employer in
which a Key Employee participates (regardless of whether the Plan has
terminated), and (ii) each other plan of an Employer which enables any
plan described in clause (i), above, to meet the requirements of
Section 401(a)(4) or 410 of the Code.
(f) "Top-Heavy" means a plan in which, as of the Determination Date, the
Top-Heavy Ratio exceeds 60%. The determination of whether a plan is
Top-Heavy shall be made in accordance with Section 416(g) of the Code.
(g) "Top-Heavy Ratio" means for this Plan or the Required Aggregation Group
or Permissive Aggregation Group, as
applicable, the fraction, the numerator of which is the sum of the
account balances under the aggregated defined
contribution plans of all Key Employees as of the Determination Date
(including any part of any account balance
distributed in the five-year period ending on the Determination Date)
and the present value of accrued benefits
(including any part of any accrued benefit distributed in the five-year
period ending on the Determination Date)
under the aggregated defined benefit plans of all Key Employees as of
the Determination Date, and the denominator
of which is the sum of all account balances (including any part of any
account balance distributed in the
five-year period ending on the Determination Date) under the aggregated
defined contribution plans for all
Participants and the present value of accrued benefits under the
defined benefit plans (including any part of any
accrued benefit distributed in the five-year period ending on the
Determination Date) for all Participants as of
the Determination Date, determined in accordance with Section 416 of
the Code and the regulations thereunder. The
accrued benefit of a Participant other than a Key Employee shall be
determined under (a) the method, if any, that
uniformly applies for accrual purposes under all defined benefit plans
maintained by an Employer, or (b) if no
such method exists, as if such benefit accrued not more rapidly than
the slowest accrual rate permitted under the
fractional rule of Section 411(b)(1)(C) of the Code.
10.3 Minimum Contribution Requirement
(a) Notwithstanding anything in this Plan to the contrary, and subject to
the limitations set forth in paragraphs (b) and (c) below, in any Plan
Year in which the Plan is Top-Heavy, the Employers shall contribute an
additional amount so as to provide allocations for each Non-Key
Employee who is employed on the last day of the Plan Year (whether or
not such Non-Key Employee is otherwise a Participant) of Employer
contributions, exclusive of Salary Deferral Contributions and Matching
Contributions, under this Plan which equal three percent of the
Participant's Compensation.
(b) The percentage minimum contribution required under paragraph (a),
above, shall in no event exceed the percentage at which contributions
are made (or required to be made) under the Plan for the Plan Year for
the Key Employee for whom such percentage is the highest for the Plan
Year. In determining the highest rate of contribution applicable to a
Key Employee, amounts elected to be deferred under a qualified Section
401(k) arrangement shall be counted for purposes of Section 416 of the
Code.
(c) No minimum contribution will be required for a Participant under this
Plan for any Plan Year if an Employer maintains another qualified plan
under which a minimum benefit or contribution is being accrued or made
for such Participant in accordance with Section 416(c) of the Code.
10.4 Adjustments to Limitations on Contributions and Benefits
If the Plan becomes Top-Heavy, (a) Sections 415 (e) (2) (B)
and (e) (3) (B) of the Code shall be applied by substituting "1.0" for "1.25"
and (b) Section 415(e)(6)(B)(i) of the Code shall be applied by substituting
"$41;500" for "$51,875."
SECTION 11
Funding
11.1 Contributions made by the Employer and all other assets of this Plan shall
be held in the Trust. The Company may, at any time and from time to time,
appoint or substitute another Trustee for the purpose of holding and investing
all or a portion of the assets of the Plan and to pay the benefits provided
under the Plan. Such appointment or substitution shall not be considered a
discontinuance or termination of the Plan. In any such event, the Company may
transfer all or any part of the assets of the Plan to any such appointed
Trustee. SECTION 12
Plan Fiduciaries and Administration
12.1 Named Fiduciaries
The authority to control and manage the operation and
administration of the Plan is vested in the named fiduciaries specified herein.
Each named fiduciary shall be responsible solely for the tasks allocated to it.
No fiduciary shall have any liability for a breach of fiduciary responsibility
of another fiduciary with respect to the Plan and Trust unless it participates
knowingly in such breach, has actual knowledge of such breach and fails to take
reasonable remedial action to remedy said breach, or, through its negligence in
performing its own specific fiduciary responsibilities which give rise to its
status as a fiduciary, it has enabled such other fiduciary to commit a breach of
the latter's fiduciary responsibility.
12.2 Fiduciary Standard
Each named fiduciary and every other fiduciary under the Plan
shall discharge its duties with respect to the Plan solely in the interests of
the Participants and beneficiaries and:
(a) For the exclusive purpose of providing benefits to Participants and
their beneficiaries, and defraying reasonable expenses of administering
the Plan;
(b) With the care, skill, prudence, and diligence under the circumstances
then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of
a like character and with like aims; and
(c) In accordance with the documents and instruments governing the Plan
insofar as such documents and instruments are consistent with the
provisions of Title I of ERISA.
12.3 Multiple Duties and Advisors
Any person or group of persons may serve in more than one
fiduciary capacity with respect to the Plan. A named fiduciary, or a fiduciary
designated by a named fiduciary in accordance with the terms of the Plan, may
employ one or more persons to render advice with regard to any responsibilities
such fiduciary has under the Plan. The expenses of such person shall be paid by
the Employers.
12.4 Allocation and Delegation of Fiduciary Duties
Each named fiduciary may allocate its fiduciary duties among
its members or may delegate its responsibilities to persons who are not named
fiduciaries with respect to the specific responsibility delegated. Any such
allocation or delegation shall be in writing and shall be made a permanent part
of the records of the named fiduciary. Such allocation or delegation shall be
reviewed periodically by the named fiduciary and shall be terminable upon such
notice as the named fiduciary, in its sole discretion, deems reasonable and
prudent under the circumstances. An action by the Board of Directors or the
Committee allocating or delegating its named fiduciary responsibilities shall be
evidenced by a duly adopted resolution of the Board of Directors or the
Committee.
12.5 Indemnification
The Employers shall indemnify and hold harmless the named
fiduciaries and any officers or employees of the Employers to which fiduciary
responsibilities have been delegated from and against any and all liabilities,
claims, demands, costs, and expenses, including attorneys' fees, arising out of
an alleged breach in the performance of their fiduciary duties under the Plan
and under ERISA, other than such liabilities, claims, demands, costs and
expenses as may result from the gross negligence or willful misconduct of such
person. The Company shall have the right, but not the obligation, to conduct the
defense of such person in any proceeding to which this paragraph applies. The
Employers may satisfy their obligation under this paragraph, in whole or in
part, through the purchase of a policy or policies of insurance.
12.6 The Plan Administrator
The Company shall be the Administrator of the Plan for
purposes of Section 3(16) of ERISA and Section 414 (g) of the Code. As such, the
Company is the named fiduciary with discretionary responsibility for the
administration of the Plan. Any or all of the administrative duties and
responsibilities of the Administrator may be delegated to an administrative
committee, provided such delegation is in writing.
12.7 The Board of Directors
The Board of Directors of the Company is responsible for the
amendment or termination of the Plan and is the named fiduciary with
responsibility for the selection, retention, and replacement of the Trustee. In
addition, the Board of Directors of the Company shall be responsible for the
appointment of the members of the Committee and for their replacement as the
circumstances require.
12.8 The Committee
(a) The Committee is the named fiduciary with the discretionary authority
to: (1) interpret the Plan; (2) formulate such rules and regulations as
are necessary to administer the Plan instrument in accordance with its
terms; (3) conduct final review of claims under the claims review
procedure; and (4) establish and carry out the funding policy of the
Plan. The Committee shall be responsible for reviewing the funding
policy and method of the Plan and shall report to the Board of
Directors of the Company at least annually with respect to its
evaluation of the same.
(b) The Committee shall consist of three or more persons and shall have as
its officers a chairman who shall be a member of the Committee, and a
secretary and one or more assistant secretaries who may, but need not,
be members. The members of the Committee and its officers shall be
appointed by, and hold office at the pleasure of, the Board of
Directors of the Company, and shall serve as such without compensation.
(c) The Committee shall keep minutes of its meetings and proceedings. Every
decision made or action taken by a majority of the members at the time
in office shall constitute the decision or action of the Committee, and
shall be final, conclusive and binding upon all persons affected
thereby. Any decision or action by the Committee under or in connection
with the Plan may be made or taken at a meeting held pursuant to its
rules at which a majority of the members then in office shall be
present and vote in favor thereof, or may be made or taken without a
meeting if approved and evidenced by a writing signed by a majority of
the members then in office.
12.9 Performance of Duties as Administrator
In addition to its performance of the named fiduciary duties
of the Company as Administrator of the Plan, the Company shall have the
discretionary authority to perform and be responsible for performing the
following nonfiduciary administrative functions within the policies,
interpretations, rules, practices and procedures established by the Company or
the Committee in accordance with their respective areas of named fiduciary
responsibility:
(a) Application of rules determining eligibility for participation or
benefits;
(b) Calculation of service and compensation for benefits;
(c) Preparation of employee communications material;
(d) Maintenance of Participants' service and employment records;
(e) Preparation of reports required by government agencies;
(f) Calculation of benefits;
(g) Administration of loan program;
(h) Orientation of new Participants and advising Participants of their rights
and options under the Plan; (i) Collection of contributions and application of
contributions as provided in the Plan; (j) Preparation of reports concerning
Participants' benefits; (k) Processing of claims; and (l) Making recommendations
to the Company or the Committee for decisions with respect to Plan
administration. 12.10 Claims Procedures (a) A Participant or beneficiary
entitled to receive benefits under the Plan need not file a request therefor.
However, if the Participant or beneficiary believes that his benefit
has been incorrectly determined, he may make a written request for
review of the determination by the Administrator. The Administrator may
require additional information if necessary to process the request. The
Administrator or its delegate shall review the request and shall render
its decision within 90 days from the date the request is filed (or the
requested additional information is submitted, if later), unless
special circumstances require an extension of time for processing the
request. If such an extension of time is required, written notice of
the extension shall be furnished the person making the request within
the initial 90-day period, and the notice shall indicate the special
circumstances requiring the extension and the date by which the
Administrator expects to reach a decision on the request. In no event
shall the extension exceed a period of 90 days from the end of the
initial period.
(b) If the Administrator denies a request in whole or in part, it shall
provide the person making the request with written notice of the denial
within the period specified in subparagraph (a), above. The notice
shall set forth in language calculated to be understood by the person
making the request:
(1) The specific reason for such denial;
(2) Specific reference to pertinent Plan provisions
upon which the denial is based; (3) A description of
any additional material or information which may be
needed to clarify
or perfect the request, and an explanation of why such
information is required; and (4) An explanation of
the Plan's review procedure with respect to the
denial of benefits.
(c) (1) A person whose request has been denied in whole or in part may file
a claim for review of the Administrator's decision in writing with the
Committee within 60 days of receipt of the notification of denial. The
Committee, for good cause shown, may extend the period during which the
claim may be filed. The claimant shall be permitted to examine all
documents pertinent to the claim and shall be permitted to submit
issues and comments regarding the claim to the Committee in writing.
(2) The Committee shall render its decision within 60
days after receipt of the application for review, unless special
circumstances (such as the need to hold a hearing) require an extension
of time for processing, but not later than 120 days after receipt of a
request for review. If an extension of time is necessary, written
notice shall be furnished the claimant before the extension period
commences.
(3) The Committee shall decide whether a hearing
shall be held on the claim and, if a hearing is to be held, it shall
notify the claimant in writing of the time and place for the hearing.
The claimant and/or his duly authorized representative may appear at
any such hearing.
(4) The decision of the Committee on review shall be
final and binding, and shall be furnished to the claimant in writing
within the time specified in paragraph 12.10(c)(2). If the decision on
review denies the claim in whole or in part, it shall specify the
reasons for the decision in a manner calculated to be understood by the
claimant, and shall include references to the specific Plan provisions
on which the decision is based. The Committee shall not be restricted
in its review to those provisions of the Plan cited in the original
denial of the claim.
(5) If the decision on review is not furnished by the
Committee within the time specified in paragraph 12.10(c)(2), the claim
shall be deemed denied on review.
SECTION 13
Amendment or Termination of the Plan
13.1 Amendment
The Board of Directors of the Company shall have authority to
amend this Plan, at any time and from time to time, in whole or in part, by
adopting a resolution setting forth such amendment. Any such amendment shall be
binding upon all Employers. Such power to amend includes the right, without
limitation, to make retroactive amendments referred to in Section 401(b) of the
Code. Notwithstanding the foregoing, no amendment of the Plan shall be effective
to reduce the benefits of any Participant or his beneficiary accrued under the
Plan on the effective date of the amendment, except to the extent that such
reduction is permitted by ERISA.
13.2 Plan Termination; Discontinuance of Contributions
(a) The Company intends to continue the Plan on a permanent basis; however,
the Board of Directors reserves the power to terminate the Plan or
discontinue the Plan at any time with respect to any or all Employers.
The board of directors of any Employer shall have the power to
discontinue the Plan with respect to that Employer at any time. If the
Plan is terminated or partially terminated, or if contributions of an
Employer are completely discontinued, the rights of all affected
Participants in their Accounts shall thereupon become nonforfeitable,
notwithstanding any other provisions of the Plan.
(b) Anything in the Plan to the contrary notwithstanding, no Employer, upon
any such termination of the Plan, shall have any obligation or
liability whatsoever to make any further payments (including all or any
part of any contributions payable prior to any termination of the Plan)
to the Trustee for benefits under the Plan. Neither the Trustee, the
Committee, nor any Participant, Employee, or Beneficiary, shall have
any right to compel an Employer to make any payments after the
termination of the Plan.
(c) If the Plan is terminated in whole or in part, or if any Employer shall
completely discontinue its contributions to the Plan, the Company may
in its discretion, (i) cause the Committee to direct that the Accounts
of each Participant shall be paid in cash or in kind to the
Participant, or, if the Participant is then deceased, to his
Beneficiary pursuant to paragraph 8.5, if living, or, if not, to the
deceased Participant's spouse or if there is none, to the Participant's
estate, or (ii) direct that the Committee and the Fund will continue
until the benefits of each Participant have been distributed in
accordance with the Plan and applicable provisions of law.
SECTION 14
Miscellaneous Provisions
14.1 Nonreversion; Return of Contributions
(a) Except as provided in this paragraph 14.1, the assets of the Plan shall
never inure to the benefit of any Employer, and shall be held for the
exclusive purpose of providing benefits to Participants and their
beneficiaries, and for defraying the reasonable expenses of
administering the Plan.
(b) In the case of an Employer contribution which is made by mistake of
fact, this Section shall not prohibit the return of the contribution to
the Employer within one year after the payment of the contribution.
(c) If an Employer contribution is conditioned upon qualification of the
Plan under Section 401(a) of the Code, or any successor provision
thereto, and if the Plan does not so qualify, then this Section shall
not prohibit the return of the contribution to the Employer within one
year after the date of denial of qualification of the Plan.
(d) If an Employer contribution is conditioned upon the deductibility of
the contribution under Section 404 of the Code, or any successor
provision thereto, then to the extent such contribution is disallowed,
this Section shall not prohibit the return to the Employer of the
contribution (to the extent disallowed), within one year after the
disallowance.
14.2 Annuity Contracts
Any annuity contract purchased by the Plan and distributed to
a Participant shall provide that the benefits under the contract are provided in
accordance with the applicable consent, present value and other requirements of
Section 417(e) of the Code.
14.3 Plan Merger
In the event of any merger or consolidation of the Plan with,
or transfer in whole or in part of the assets or liabilities of the Trust to,
another trust fund held under any other plan of deferred compensation maintained
or to be established for the benefit of some or all of the Participants of this
Plan, the assets of the Trust applicable to such Participants shall be
transferred to the other trust fund only if such Participant would (if either
this Plan or the other Plan then terminated) receive a benefit immediately after
the merger, consolidation or transfer which is equal to or greater than the
benefit he would have been entitled to receive immediately before the merger,
consolidation or transfer (if this Plan had then terminated).
14.4 No Assignment or Alienation
Except as provided in a "qualified domestic relations order"
within the meaning of Section 414 (p) of the Code, the benefits under this Plan
may not be assigned or alienated.
14.5 No Employment Contract
The adoption of this Plan is not a contract between any
employer and any employee, nor does it give any employee any right to continue
employment with any employer, or interfere with the right of any employer to
discharge any employee with or without cause.
14.6 Communications
Each Participant, former Participant, beneficiary and
dependent shall notify the Administrator in writing of each change in his post
office address. Any communication, statement or notice to such person by the
Employer, the Administrator, the Committee or the Trustee in connection with the
Plan shall be sufficiently given or furnished if sent to such person by first
class mail, postage prepaid, addressed to him at his last post office address as
disclosed by the records of the Administrator. The Employer, the Administrator,
the Committee and the Trustee shall have no obligation to search for, or
ascertain the whereabouts of, any such person.
14.7 Applicable Law
This Plan shall be construed, administered and enforced
according to ERISA and, to the extent state law is applicable, according to the
laws of the State of California.
14.8 Disqualification of an Employer
If, after initial qualification, it is finally determined that
the plan and the trust of any Employer no longer meet the requirements of
Sections 401(a) and 501(a) of the Code, such Employer will no longer participate
in this Plan and Trust as of the date of disqualification, and the assets of the
Trust allocable to the Employer shall be segregated as soon as possible after
the date of final determination of disqualification and held as a separate fund.
14.9 Successor to an Employer
(a) Notwithstanding any provision in the Plan to the contrary, if any
Employer becomes the successor to the business of another company, by
whatever form or manner resulting, at a time when such other company is
not an Employer hereunder, and employees of such other company become
employees of the Employer, the terms and conditions under which such
employees may participate in this Plan shall be determined by the Board
of Directors of the Company.
(b) Provided such action does not result in discrimination prohibited by
Section 401(a) of the Code or in duplication of benefits, the Board of
Directors may waive or vary requirements for participation in the Plan
by such employees and/or may provide that service with such other
company shall be considered continuous service with the Employers for
any or all purposes of the Plan. 14.10 Military Duty
Notwithstanding any provision of this Plan to the contrary,
contributions, benefits and service credit with respect to qualified military
service will be provided in accordance with section 414(u) of the Code. Loan
repayments will be suspended under this Plan as permitted under section
414(u)(4) of the Code.
/s/ FRITZ COMPANIES, INC.
Date: _______________ By:
Its:
<PAGE>
DOCSSF1:436761.7 85
APPENDIX A
DOCSSF1:436761.7
APPENDIX A
TO THE
FRITZ COMPANIES, INC.
SALARY INVESTMENT & RETIREMENT PLAN
As of January 1, 1995, the following entities have adopted the
Plan with the consent of the Company:
Arthur J. Fritz & Co.
Fritz Air Freight, Inc.
Fritz Transportation International
Fritz International Insurance Brokers
Fritz Container Line, Inc.
Frontier Freight Forwarders, Inc.
Mattoon & Company, Inc.
T.G. International Inc.
Air Compak International, Inc.
As of July 1, 1995, the following entities are Employers under
the Plan:
Air Compak International, Inc.
Arthur J. Fritz & Co.
Fritz Air Freight, Inc.
Fritz Transportation International
Fritz International Insurance Brokers
Fritz Container Line, Inc.
Frontier Freight Forwarders, Inc.
T.G. International Inc.
Unlimited Warehousing, Inc.
FNC International, Inc.
Logistics Service (U.S.A.) Co., Inc.
M.D.S. (Atlantic), Inc.
FCI Logistics, Inc.
Global Crating, Inc.
Fritz Export Packing, Inc.
Effective January 1, 1996, Appendix A is amended by substituting the phrase
"Logistics Service (U.S.A.)Co., Inc. (effective January 1, 1996) for the
phrase "Logistics Service (U.S.A.) Co., Inc."
Effective January 1, 2000, the following entities are added:
Fritz Domestic Services
Fritz Government Services, Inc.
Wall Shipping Co., Inc.
Trade Management Services, Inc.
<PAGE>
DOCSSF1:436761.7
5582-5 PB1 2
FRITZ COMPANIES, INC.
SALARY INVESTMENT & RETIREMENT PLAN
(January 1, 2000 Restatement)
<PAGE>
TABLE OF CONTENTS
(continued)
Page
DOCSSF1:436761.7 -ii-
5582-5 PB1
FRITZ COMPANIES, INC.
SALARY INVESTMENT & RETIREMENT PLAN
(January 1, 2000 Restatement)
TABLE OF CONTENTS
Page
DOCSSF1:436761.7 i
Preamble ................................................................1
SECTION 1...................................Definitions and Construction 2
SECTION 2.................................................Participation 11
SECTION 3..................................................Contribution 12
SECTION 4..........................................Participant Accounts 17
SECTION 5.......................................................Vesting 18
SECTION 6..................................Limitations on Contributions 23
SECTION 7.........................................Loans and Withdrawals 40
SECTION 8........................... ..........Distribution of Benefits 46
SECTION 9................................................Death Benefits 54
SECTION 10..............................................Top-Heavy Rules 58
SECTION 11......................................................Funding 62
SECTION 12..........................Plan Fiduciaries and Administration 63
SECTION 13.........................Amendment or Termination of the Plan 69
SECTION 14.....................................Miscellaneous Provisions 71
71
<PAGE>
DOCSSF1:440689.2
DOCSSF1:440689.2
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