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EXHIBIT 4
ANTEC CORPORATION EMPLOYEE SAVINGS PLAN
(As Amended and Restated Effective October 1, 1998)
(As Further Amended Through Third Amendment dated March 3, 2000)
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ANTEC CORPORATION EMPLOYEE SAVINGS PLAN
(As Amended and Restated Effective October 1, 1998)
CONTENTS
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I THE PLAN.................................................................................................4
1.1. The Plan............................................................................................4
1.2. Applicability of the Plan...........................................................................4
1.3. Purpose.............................................................................................4
II DEFINITIONS AND CONSTRUCTION.............................................................................4
Definitions..............................................................................................4
III ELIGIBILITY AND PARTICIPATION...........................................................................10
3.1. Eligible Employees and Active Participation........................................................10
3.2. Entry Date.........................................................................................10
3.3. Adoption of Plan by Affiliated Companies...........................................................10
IV CONTRIBUTIONS...........................................................................................10
4.1. Before-Tax Contributions and Account...............................................................10
4.2. Change or Suspension of Participant Contributions..................................................11
4.3. Employer Contributions and Account.................................................................11
4.4. Rollover Contributions and Account.................................................................12
4.5. Qualified Nonelective Contributions................................................................13
4.6. Exclusive Benefit of Employees.....................................................................13
4.7. Annual Limit on Before-Tax Contributions...........................................................14
4.8. Section 401(k) Limit on Before-Tax Contributions...................................................14
4.9. Section 401(m) Limit on Employer Matching Contributions............................................16
4.10. Limitation on Annual Additions....................................................................18
V INVESTMENTS AND ACCOUNTS................................................................................20
5.1. The Investment Funds...............................................................................20
Change in Investment Elections.............................................................................21
Elections to Transfer Balances Between Investment Funds....................................................21
5.2. Plan Accounting and Allocation of Investment Earnings and Losses...................................21
VI VESTING IN ACCOUNTS.....................................................................................21
6.1. Nonforfeitable Interest in Participant's Account...................................................21
6.2. Service............................................................................................24
6.3. Forfeiture of Employer Contributions Account.......................................................24
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6.4. Vesting on Transfer of Joint Ventures..............................................................25
6.5. Vesting on Termination of Employment Due to Closure of Employer's Office in Rolling
Meadows, Illinois..............................................................................25
6.6. Vesting on Termination of Employment Due to Closure of Employer's Facility in West Valley, Utah....25
VII DISTRIBUTIONS, WITHDRAWALS, AND LOANS...................................................................25
7.1. Distributions Upon Termination of Employment or Disability.........................................25
7.2. Distribution Upon Death............................................................................26
7.3. In-Service Withdrawals.............................................................................26
7.4. Due Date for Payments..............................................................................28
7.5. Loans..............................................................................................29
7.6. Eligible Rollover Distributions....................................................................31
7.7. Required Beginning Date............................................................................32
7.8. Payment Medium.....................................................................................32
VIII TOP HEAVY PROVISIONS....................................................................................32
8.1. Application of Top-Heavy Provisions................................................................32
8.2. Definitions........................................................................................33
8.3. Minimum Contribution...............................................................................35
8.4. Limit on Annual Additions: Combined Plan Limit.....................................................36
IX ADMINISTRATION AND FINANCING............................................................................36
9.1. Plan Sponsor and Plan Administrator................................................................36
9.2. Administrative Responsibilities....................................................................36
9.3. Plan Assets........................................................................................36
9.4. Contributions......................................................................................38
9.5. Expenses of Administration.........................................................................38
9.6. Incapacity.........................................................................................38
9.7. Indemnity for Liability............................................................................38
9.8. Claims and Inquiries...............................................................................38
X AMENDMENT AND TERMINATION...............................................................................40
10.1. Amendments to Conform with Law....................................................................40
10.2. Other Amendments and Termination..................................................................40
10.3. Form of Amendment.................................................................................40
10.4. Limitations on Amendments.........................................................................40
10.5. Merger or Consolidation or Transfer...............................................................40
XI MISCELLANEOUS...........................................................................................41
11.1. Gender and Number.................................................................................41
11.2. Applicable Law....................................................................................41
11.3. Severability......................................................................................41
11.4. Headings..........................................................................................41
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11.5. No Enlargement of Employee Rights.................................................................41
11.6. Special Rules Relating to Veterans' Reemployment Rights Under USERRA..............................41
11.7. Plan Supplements..................................................................................43
11.8. Plan Expenses.....................................................................................43
11.9. Nonassignability..................................................................................43
11.10. Missing Persons.................................................................................43
11.11. Withholding Taxes................................................................................43
11.12. Statement of Account.............................................................................44
APPENDIX A..............................................................................................45
SUPPLEMENT A.....................................................................................................46
Former Participants of the Itel Corporation Employees Capital Accumulation Plan..................................46
A-1. Special Provisions for the Former Participants of the Itel Corporation Employees
Capital Accumulation Plan......................................................................46
SUPPLEMENT B.....................................................................................................47
B-1. Special Provisions for the Former Participants of the TSX Corporation 401(k) Savings Plan..........47
B-2. Use of Terms.......................................................................................47
SUPPLEMENT C.....................................................................................................48
C-1. Special Provisions for the Former Participants of the Keptel, Inc. 401(k) Savings Plan.............48
C-2. Use of Terms.......................................................................................48
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ANTEC CORPORATION EMPLOYEE SAVINGS PLAN
(As Amended and Restated Effective October 1, 1998)
ARTICLE I
THE PLAN
1.1. The Plan. Effective September 16, 1993, ANTEC Corporation (the
"Company") was spun-off from Anixter, Inc. Effective as of January 1, 1994, the
Company established the ANTEC Corporation Employee Savings Plan (the "Plan"), as
an amendment and restatement of the Anixter, Inc. Employee Savings Plan (the
"Anixter Plan"), and the assets and liabilities of the Anixter Plan attributable
to employees of the Company were spun-off to this Plan.
Keptel, Inc. and TSX Corporation are Affiliates of the Company.
Effective as of October 1, 1998, the Company has amended and restated the Plan
to incorporate into the Plan (i) all amendments made to the Plan subsequent to
January 1, 1994; (ii) the Keptel, Inc. 401(k) Savings Plan (the "Keptel Plan")
and all amendments thereto; and (iii) the TSX Corporation 401(k) Savings Plan
(the "TSX Plan") and all amendments thereto. The assets and liabilities of the
Keptel Plan and TSX Plan are to be transferred to this Plan as soon as
practicable after such effective date.
Effective as of January 1, 1999, the Company subsequently has amended
the Plan to reflect the merger of the Integration Technologies L.L.C. 401(k)
Savings Plan (the "IT Plan") into this Plan, and the transfer of assets and
liabilities of the IT Plan to this Plan.
1.2. Applicability of the Plan. The provisions of this Plan are
applicable to persons who are employed by the Company or an Affiliate on or
after October 1, 1998.
1.3. Purpose. The purpose of the Plan is to encourage Employees to
accumulate capital on a regular and long-term basis to supplement retirement
income. The Plan and Trust are intended to qualify as a plan and trust which
meet the requirements of Code Sections 401(a), 401(k), and 501(a) and the
provisions of ERISA. The Plan is intended to be a profit sharing plan within the
meaning of Code Section 401(a).
ARTICLE II
DEFINITIONS AND CONSTRUCTION
Definitions. Whenever used in the Plan, the following terms shall have
the respective meanings set forth below unless otherwise expressly provided.
2.1. "Account means a Participant's Before-Tax Contributions
Account, Employer Contributions Account and Rollover Contributions Account,
collectively or individually as the context indicates.
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2.2. "Active Participant means an Eligible Employee who has
satisfied the conditions of Section 3.2 of the Plan.
2.3. "Affiliate means any corporation that is a member of the same
controlled group of corporations (within the meaning of Code Section 414(b)) as
the Company, any trade or business (whether or not incorporated) that is under
common control with the Company within the meaning of Code Section 414(c), any
organization that is a member of an affiliated service group (within the meaning
of Code Section 414(m)) of which the Company is also a member, and any other
entity required to be aggregated under Code Section 414(o).
2.4. "Before-Tax Contributions" and the "Before-Tax Contributions
Account" mean the contributions and account described in Section 4.1 of the
Plan.
2.5. "Beneficiary" means the person specified under Section 7.2 of
the Plan.
2.6. "Board of Directors" means the Board of Directors of the
Company.
2.7. "Break in Service" means a Period of Severance of at least
twelve (12) consecutive months. A Break in Service shall be deemed to commence
on the first day of the Period of Severance and shall be deemed to end on the
day in which the Employee again performs an Hour of Service for the Company. A
"Period of Severance" means a continuous period of time during which an Employee
is not employed by the Company. Such a period shall begin on the earlier of: (a)
the day on which the Employee quits, retires, is discharged or dies; or (b) the
first anniversary of the date on which the Employee separates from service with
the Company for any reason other than the reasons set forth in clause (a) above,
such as vacation, holiday, sickness, disability, leave of absence or layoff. A
Period of Severance shall end on the date on which an Employee again performs an
Hour of Service for the Company.
Solely for purposes of determining whether a Break in Service has
occurred, in the case of an Employee who is absent from work beyond the first
anniversary of the beginning of a Period of Severance and the absence is for
maternity or paternity leave reasons, the date the Employee incurs a Break in
Service shall be the second anniversary of the beginning of the Employee's
Period of Severance. The period between the first and second anniversary of the
beginning of the Period of Severance will not constitute Service. For purposes
of this Section, an absence from work for maternity or paternity reasons means
an absence (a) by reason of pregnancy of the individual; (b) by reason of the
birth of a child of the individual; (c) by reason of the placement of a child
with the individual in connection with the adoption of such child by such
individual; and (d) for purposes of caring for such child for a period beginning
immediately following such birth or placement.
A Break in Service shall not be deemed to have occurred if: (a) the
Employee is absent from employment with the Company by reason of service in the
"uniformed services" (as that term is defined in the Uniformed Services
Employment and Reemployment Rights Act of 1994 ("USERRA")) for a period during
which the Employee's reemployment rights are guaranteed by USERRA, and the
Employee is reemployed by the Company under the terms of Section 4312 of USERRA;
or (b) the Employee is absent on an approved leave of absence
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granted to the Employee on or after August 5, 1993 pursuant to the Family and
Medical Leave Act, if the Employee returns to work for an Employer at the end of
such leave of absence.
2.8. "Code" means the Internal Revenue Code of 1986, as amended.
2.9. "Company" means ANTEC Corporation.
2.10. "Compensation" means an Employee's salary and bonus paid
during a Plan Year and considered wages for federal income tax withholding,
including any elective deferrals (as defined in Code Section 402(g)(3)), any
deferrals made under any other retirement plan of the Company or any deferrals
not included in the gross income of the Employee by reason of Code Section 125.
Notwithstanding the foregoing, Compensation shall not include reimbursements or
other expense allowances (whether or not includable in gross income, and
including but not limited to car allowances), cash or noncash fringe benefits
(including but not limited to contest prizes), moving expenses, welfare benefits
(including but not limited to imputed income on life insurance coverage, unused
and/or accrued vacation pay and severance pay), any distribution of stock,
proceeds from the exercise of any stock options, stock appreciation rights, or
any other stock or equity based annual incentive plan, tax equalization packages
or inputed income attributed to the forgiveness of loans). The following
provisions shall apply in determining Compensation:
(a) In no event shall the Compensation of a Participant taken into
account under the Plan for any Plan Year commencing on and
after January 1, 1989 and prior to January 1, 1994 exceed
$200,000, or such greater amount provided pursuant to Section
401(a)(17) of the Code.
(b) In addition to other applicable limitations set forth in the
Plan and notwithstanding any other provision of the Plan to
the contrary, for Plan Years beginning on or after January 1,
1994, the annual Compensation of each Employee taken into
account under the Plan shall not exceed the OBRA '93 annual
Compensation limit. The OBRA '93 annual Compensation limit is
$150,000, as adjusted by the Commissioner for increases in the
cost of living in accordance with Section 401(a)(17)(B) of the
Code. The cost-of-living adjustment in effect for a calendar
year applies to any period, not exceeding 12 months, over
which Compensation is determined (determination period)
beginning in such calendar year. If a determination period
consists of fewer than 12 months, the OBRA '93 annual
Compensation limit will be multiplied by a fraction, the
numerator of which is the number of months in the
determination period, and the denominator of which is 12.
(c) For Plan Years beginning on or after January 1, 1994, any
reference in this Plan to the limitation under Section
401(a)(17) of the Code shall mean the OBRA '93 annual
Compensation limit set forth in this provision.
(d) If Compensation for any prior determination period is taken
into account in determining an Employee's benefits accruing in
the current Plan Year, the Compensation for that prior
determination period is subject to the OBRA '93
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annual Compensation limit in effect for the prior
determination period. For this purpose, for determination
periods beginning before the first day of the first Plan Year
beginning on or after January 1, 1994, the OBRA '93 annual
Compensation limit is $150,000.
2.11. "Compensation Reduction Agreement" means a written agreement
between a Participant and an Employer under which the Employer reduces the
Participant's Compensation with respect to services rendered after the execution
of the agreement and the Employer agrees to contribute the amount of the
reduction to the Plan on behalf of the Participant as a Before-Tax Contribution.
2.12. "Disability" or "Disabled" means a medically determinable
physical or mental condition for which the Participant has been determined to be
entitled to disability benefits under the Company's long-term disability plan.
2.13. "Eligible Employee" means each Employee of an Employer who is
not included in one of the following excluded categories:
(a) an Employee who is included in a unit of Employees covered by
a collective-bargaining agreement that does not provide that
the Employee shall be eligible to participate in the Plan;
(b) an Employee who is a nonresident alien with respect to the
United States who receives no earned income (within the
meaning of Code Section 911(d)(2)) from the Employer or its
Affiliates which constitutes income from sources within the
United States (within the meaning of Code Section 861(a)(3));
or
(c) an Employee who is a leased employee.
2.14. "Employee" shall mean any person who is employed in the
United States by an Employer, whether or not such person is a citizen of the
United States, and any person who is a citizen of the United States performing
services in operations of an Employer located in a country other than the United
States. To the extent required by Code Section 414(n), a leased employee (as
defined below) shall be treated as an Employee, but shall not be eligible to
participate in this Plan. Notwithstanding the preceding sentence, if a leased
employee subsequently becomes an Employee of the Employer, the period during
which the leased employee performed services for the Employer shall be taken
into account for purposes of determining the Employee's Service for vesting
under Section 6.1 unless: (a) such leased employee was a participant in a money
purchase pension plan maintained by the leasing organization which provided a
nonintegrated employer contribution rate of at least 10% of Compensation,
immediate participation for all employees and full and immediate vesting; and
(b) leased employees do not constitute more than 20% of the employer's nonhighly
compensated workforce. A "leased employee" means any person who is not a
common-law employee of the Employer, but who has provided services to the
Employer of a type which have historically (within the business field of the
employer) been provided by Employees, on a substantially full-time basis for a
period of at least one year, pursuant to an agreement between the Employer and a
leasing organization.
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A person who is not considered to be a "leased employee" as defined
above and who is engaged as an independent contractor pursuant to a contract or
agreement between such person and an Employer which designates him as an
independent contractor or otherwise contemplates or implies that he will
function as an independent contractor is not considered an Employee for purposes
of the Plan. Only individuals who are paid as employees from an Employer payroll
and treated by an Employer at all times as Employees shall be deemed Employees
for purposes of the Plan, and no independent contractor shall be treated as an
Employee under the Plan during the period he renders services to an Employer as
an independent contractor. Any person retroactively or in any other way held or
found to be a "common law employee" shall not be eligible to participate in the
Plan for any period during which he was not treated as an Employee by an
Employer and considered to be an "Employee" under this definition.
2.15. "Employer" means the Company and any Affiliate participating
in the Plan pursuant to Section 3.3.
2.16. "Employer Contributions Account" means the account described
in Section 4.3 of the Plan.
2.17. "Employer Discretionary Contributions" mean the contributions
described in Section 4.3(b) of the Plan.
2.18. "Employer Matching Contributions" mean the contributions
described in Section 4.3(a) of the Plan.
2.19. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
2.20. "Excess Deferrals" means the amount of a Participant's
Before-Tax Contributions plus the amount of the Participant's elective deferrals
under other cash or deferred arrangements described under Code Section 401(k),
408(k), or 403(b) that exceeds the limits described under Code Section 402(g).
2.21. "Five-Percent Owner" means a "5-percent owner" within the
meaning of Code Section 416(i)(1)(B).
2.22. "Fund" means any investment fund established by the Company as
an investment medium for the Trust Fund. The Company shall have the discretion
to establish and terminate such investment funds as it shall deem appropriate.
2.23. "Highly Compensated Employee" means an Employee who:
(a) during the current Plan Year or preceding Plan Year was at any
time a Five-Percent Owner of the Company; or
(b) during the preceding Plan Year received Compensation from the
Company and Affiliates in excess of $80,000 (or such greater
amount provided by the
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Secretary of the Treasury pursuant to Section 414(q) of the
Code), and, if elected by the Company, was in the top paid
group of employees for such Plan Year. A participant is in the
top paid group for such Plan Year if he is in the group
consisting of the top 20% of the Employees when ranked on the
basis of compensation (as defined in Code Section 414(q)(4))
paid during such Plan Year.
2.24. "Hour of Service" means an hour for which an Employee is paid
or entitled to payment by the Company for the performance of duties for the
Company. Such Hours of Service shall be calculated pursuant to Department of
Labor Regulations, 29 CFR ss. 2530.200b-2.
2.25. "Non-Highly Compensated Employee" means an Employee who is not
a Highly Compensated Employee.
2.26. "Normal Retirement Age" means the date that a Participant
attains age 65.
2.27. "Participant" means an Employee who becomes a Participant
under the provisions of Sections 3.1 and 3.2. An Employee, however, who has
deposited a Rollover Contribution pursuant to Section 4.4 shall be deemed a
Participant for purposes of the Plan to the extent that the provisions of the
Plan apply to the Rollover Contribution Account of the Employee.
2.28. "Plan" means the ANTEC Corporation Employee Savings Plan.
2.29. "Plan Administrator" or "Administrator" means the committee
appointed by the Board of Directors of the Company to administer the Plan.
2.30. "Plan Year" means the calendar year.
2.31. "Qualified Nonelective Contributions mean the contributions
described in Section 4.5 of the Plan.
2.32. "Rollover Contributions" and "Rollover Contributions Account"
means the contributions and the account described in Section 4.4 of the Plan.
2.33. "Service" means service as defined in Section 6.2 of the Plan.
2.34. "Trust Agreement" means the agreement establishing a trust,
which forms part of the Plan, to receive, hold, invest, and dispose of the Trust
Fund.
2.35. "Trustee" means the corporation, or person acting as trustee
under the Trust Agreement.
2.36. "Trust Fund" means the assets held under the Trust Agreement
forming a part of the Plan.
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2.37. "Valuation Date" means each business day on which the New York
Stock Exchange is open.
2.38 "Year of Service" means a 12-month period of employment
commencing with an Employee's first day of employment or reemployment, as
described in Section 6.2 of the Plan.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1. Eligible Employees and Active Participation. Each Employee who
was (a) a participant in the Anixter Plan as of December 31, 1993; (b) a
participant in the Keptel Plan as of September 31, 1998; or (c) a participant in
the TSX Plan as of September 31, 1998 shall continue as an Active Participant in
this Plan on October 1, 1998, provided such Participant remains an Eligible
Employee on that date. Each other Eligible Employee shall become a Participant
according to Section 3.2 below.
3.2. Entry Date. An Eligible Employee may become an Active
Participant in the Plan as of the first day of any payroll period that starts on
or after the first day of the month coincident with or following the completion
of six (6) months of employment, provided that the Employee executes a
Compensation Reduction Agreement to make Before-Tax Contributions, or elects to
make Before-Tax Contributions in such other method, such as telephone access
provided by the recordkeeper, as prescribed by the Administrator. A Participant
shall cease to be an Active Participant when he is no longer an Eligible
Employee.
3.3. Adoption of Plan by Affiliated Companies. The Board of
Directors of the Company shall have the right to certify to the Trustee that an
Affiliate shall participate under the terms of this Plan as an Employer. Such
Employers shall be listed in Appendix A. All subsidiaries of the Employers also
shall be Employers unless the Company shall determine otherwise. An Employer is
deemed to have designated the Company as its agent with respect to the Plan. An
Employee of an Affiliate shall not be eligible to become an Active Participant
pursuant to this Article III prior to the date the Affiliate becomes an
Employer.
ARTICLE IV
CONTRIBUTIONS
4.1. Before-Tax Contributions and Account. Subject to Sections 4.7,
4.8, 4.9(e) and 4.10, an Active Participant may elect to reduce his Compensation
by an amount equal to 1% of his Compensation or any greater whole percentage of
his Compensation not in excess of an amount equal to 15% of his Compensation, by
filing a Compensation Reduction Agreement, or in such other method, such as
telephone access provided by the recordkeeper, as prescribed by the
Administrator. The Employer shall contribute to the Plan on behalf of the
Participant an amount equal to the amount of the reduction in Compensation. The
contribution shall be made as soon as administratively practicable but not later
than the 15th business day of the month following the month in which such
amounts otherwise would have been payable to the
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Participant in cash in the absence of the Compensation Reduction Agreement. The
contribution shall be credited to the Participant's Before-Tax Contributions
Account. Such Account shall also reflect its allocable share of investment
earnings, gains, and losses (realized and unrealized) pursuant to Section 5.2
and Plan expenses chargeable under Section 11.8.
4.2. Change or Suspension of Participant Contributions. An Active
Participant may change or suspend contributions or change his Compensation
Reduction Agreement by filing with the Administrator a form prescribed by the
Administrator, or in such other method, such as telephone access provided by the
recordkeeper, as prescribed by the Administrator. A change or suspension of
contributions shall be effective as of the beginning of the first payroll period
administratively practicable after the date the Administrator receives such
form.
4.3. Employer Contributions and Account. Subject to the limitations
of Sections 4.9 and 4.10, the Employer shall contribute the following on behalf
of each Active Participant:
(a) Employer Matching Contributions.
For each payroll period occurring in any Plan Year ending on
or before December 31, 1999, the Employer shall contribute the
following amount on behalf of each Active Participant:
(i) For each Active Participant who is an Employee of the
Company, an amount equal to 25% of the Before-Tax
Contributions made on behalf of the Participant each
payroll period, up to 6% of any such Participant's
Compensation for such payroll period; that is, the
maximum Employer Matching Contribution that may be
made on behalf of any Participant is 1.5% of such
Participant's Compensation.
(ii) For each Active Participant who is an Employee of
Keptel, Inc., an amount equal to: (I) 75% of the
Before-Tax Contributions made on behalf of the
Participant each payroll period, up to 4% of any such
Participant's Compensation for such payroll period;
and (II) 50% of the Before-Tax Contributions made on
behalf of the Participant each payroll period in
excess of 4% of such Participant's Compensation for
such payroll period, up to 8% of such Participant's
Compensation for such payroll period; that is, the
maximum Employer Matching Contribution that may be
made on behalf of any Participant is 5% of such
Participant's Compensation. The Employer may make an
additional Employer Matching Contribution in an
amount specified by the its board of directors in its
sole discretion.
(iii) For each Active Participant who is an Employee of TSX
Corporation, an amount equal to 50% of the Before-Tax
Contributions made on behalf of the Participant each
payroll period, up to 6% of such Participant's
Compensation for such payroll period; that is, the
maximum Employer Matching Contribution that may be
made on behalf of any Participant is 3% of such
Participant's Compensation.
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(b) Employer Discretionary Contributions. For each payroll period
occurring in any Plan Year beginning on or after January 1,
2000, the Employer shall contribute the following amount on
behalf of each Active Participant:
(i) For each Active Participant who is an employee of the
Company and who has made an irrevocable election in
accordance with Subsection 2.04(a) of the ANTEC
Corporation Pension Plan to continue to accrue
benefits thereunder on and after January 1, 2000, the
amount described in Subsection 4.3(a)(i)(A) above.
(ii) For each Active Participant who is an Employee of the
Company and who has made an irrevocable election in
accordance with Subsection 2.04(b) of the ANTEC
Corporation Pension Plan to discontinue future
benefit accruals thereunder after December 31, 1999,
an amount equal to: (I)100% of the first 1% of the
Before-Tax Contributions made on behalf of the
Participant for such payroll period; (II) 75% of the
Before-Tax Contributions made on behalf of the
Participant for such payroll period that are in
excess of 1% but less than 6% of the Participant's
Before-Tax Contributions; and (III) 50% of the
Before-Tax Contributions made on behalf of the
Participant for such payroll period that are in
excess of 6% but less than 8% of such Participant's
Before-Tax Contributions.
(ii) For each other Active Participant not described in
Subsection 4.3(a)(ii)(A) or (B) above, an amount
equal to that described in 4.3(a)(ii)(B) above.
Contributions made pursuant to this Section 4.3 shall be
credited to each Participant's Employer Contributions Account.
Such Account shall also reflect its allocable share of
investment earnings, gains, and losses (realized and
unrealized) pursuant to Section 5.2 and Plan expenses
chargeable under Section 11.8.
4.4. Rollover Contributions and Account. An Eligible Employee who
has received an Eligible Rollover Distribution (as defined in Section 7.6) may
elect to deposit all or any portion (as designated by such Eligible Employee in
writing to the Administrator) of the amount of such distribution as a "rollover
contribution" to this Plan. A rollover contribution may be made only within
sixty (60) days following the date the Employee receives the distribution from
the plan of his former employer (or within such additional period as may be
provided under Section 408 of the Code if the Employee shall have made a timely
deposit of the distribution in an individual retirement account). The
Administrator shall establish rules and procedures to implement this Section
4.4, including, without limitation, such procedures as may be appropriate to
permit the Administrator to verify the tax qualified status of the plan of the
former employer and compliance with any applicable provisions of the Code
relating to such contributions and transfers. The amount contributed or
transferred to the Trustee pursuant to this Section shall be placed in the
Employee's Transfer Account for the benefit of the Employee. The Employee shall
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have a fully vested interest in the Adjusted Balance of his Transfer Account at
all times and such account shall reflect its allocable share of the investment
earnings, gains and losses (realized and unrealized) pursuant to Section 5.2 of
the Plan, and Plan expenses chargeable under Section 11.8, and may be
distributed at the same times and in the manner set forth in Article VII below.
Notwithstanding the preceding provisions of this Section, the Trustee will not
accept a transfer of an Employee's interest in a retirement plan of a former
employer if it is determined that such acceptance would render this Plan a
direct or indirect transferee of a defined benefit plan, money purchase pension
plan (including a target benefit plan), stock bonus, or profit sharing plan that
provides for a life annuity form of payment to the Employee.
4.5. Qualified Nonelective Contributions. The Employer may
contribute to the Plan with respect to any Plan Year a Qualified Nonelective
Contribution on behalf of Participants who are Non-Highly Compensated Employees
in an amount sufficient to satisfy one of the tests set forth in Section 4.9(a).
Such Qualified Nonelective Contribution shall be allocated and credited to the
Before-Tax Contribution Account of each Non-Highly Compensated Employee as of
the Plan Year for which such contribution is made in the same proportion that
each Non-Highly Compensated Employee's Compensation for the Plan Year bears to
the total Compensation of all Participants who are Non-Highly Compensated
Employees. Upon allocation to the Before-Tax Contribution Accounts of such
Participants, the Qualified Nonelective Contribution shall be considered to be
Before-Tax Contributions for all purposes of the Plan other than for purposes of
Section 7.3 and for purposes of determining the amount of Employer Matching
Contributions made on such Participants' behalf pursuant to Section 4.3, and
shall be subject to all of the provisions of the Plan regarding Before-Tax
Contributions. The Employer shall pay to the Trustee its Qualified Nonelective
Contributions with respect to a particular Plan Year within ninety (90) days
after the end of such Plan Year.
4.6. Exclusive Benefit of Employees. All contributions made
pursuant to the Plan shall be held by the Trustee in accordance with the terms
of the Trust Agreement for the exclusive benefit of those Employees who are
Participants under the Plan, including former Employees, and their
Beneficiaries, and shall be applied to provide benefits under the Plan and to
pay expenses of administration of the Plan and the Trust, to the extent that
such expenses are not otherwise paid. At no time prior to the satisfaction of
all liabilities with respect to such Employees and their Beneficiaries shall any
part of the Trust Fund (other than such part as may be required to pay
administration expenses and taxes) be used for, or diverted to, purposes other
than for the exclusive benefit of such Employees and their Beneficiaries.
However, without regard to the provisions of this Section 4.6:
(a) If a contribution under the Plan is conditioned on initial
qualification of the Plan under Section 401(a) of the Code,
and the Plan receives an adverse determination with respect to
its initial qualification, the Trustee shall return to the
Company, upon written request of the Company, the amount of
such contribution (increased by earnings attributable thereto
and reduced by losses attributable thereto) within one
calendar year after the date that qualification of the Plan is
denied, provided that the application for the determination is
made by the time prescribed by law for filing the Company's
return for the taxable year in which the Plan is adopted, or
such later date as the Secretary of the Treasury may
prescribe;
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<PAGE> 15
(b) If a contribution is conditioned upon the deductibility
of the contribution under Section 404 of the Code, then
to the extent the deduction is disallowed, the Trustee
shall return the contribution (to the extent disallowed)
to the Company, upon written request of the Company,
within one year after the date the deduction is
disallowed;
(c) If a contribution or any portion thereof is made by the
Company by a mistake of fact, the Trustee shall return
the contribution or such portion to the Company, upon
written request to Company, within one year after the
date of payment to the Trustee; and
(d) Earnings attributable to amounts to be returned to the
Company pursuant to subsection (b) or (c) above shall not
be returned, and losses attributable to amounts to be
returned pursuant to subsection (b) or (c) shall reduce
the amount to be so returned.
4.7. Annual Limit on Before-Tax Contributions. Notwithstanding
Section 4.1, the Before-Tax Contributions with respect to a Participant shall
not exceed $10,000 (or such other amount specified by the Internal Revenue
Service pursuant to Code Section 402(g)(5)) in any taxable year of the
Participant. Amounts in excess of this limitation (adjusted for gains and losses
as provided by regulations) shall be paid to the Participant not later than
April 15 (or the next business day, if the applicable April 15 falls on a
Saturday, Sunday, or holiday) of the taxable year which follows the taxable year
in which the excess amount arises. Employer Contributions with respect to
amounts which are repaid to a Participant shall be forfeited and treated in the
manner prescribed under Section 6.3(d). Repaid Before-Tax Contributions with
respect to Highly-Compensated Employees shall continue to be treated as
Before-Tax Contributions for the purpose of Section 4.8. If the limitation in
this Section 4.7 would be exceeded by the contribution of Excess Deferrals, the
Administrator may distribute the amount of such excess (adjusted for gains and
losses as provided by regulations) to the Participant no later than the April 15
(or the next business day following such April 15, if the April 15 falls on a
Saturday, Sunday, or holiday) following the calendar year in which the excess
amount arises if the Participant provides the Administrator with a written claim
requesting a refund of the excess. Employer Contributions with respect to
amounts which are repaid to a Participant shall be forfeited and treated in the
manner prescribed under Section 6.3(d). The Administrator may require additional
proof regarding the existence of Excess Deferrals. Repaid Before-Tax
Contributions shall continue to be treated as Before-Tax Contributions for the
purpose of Section 4.8.
4.8. Section 401(k) Limit on Before-Tax Contributions.
(a) In General. Notwithstanding Section 4.1, Before-Tax
Contributions for any Plan Year shall be limited to the extent
necessary so that the Actual Deferral Percentage (as defined
in subsection (b)) for the group of Highly Compensated
Employees who are Eligible Employees is not more than the
greater of:
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<PAGE> 16
(i) the product of 1.25 and the Actual Deferral
Percentage for the Non-Highly Compensated Employees
who are Eligible Employees; or
(ii) the lesser of:
(A) the product of two and the Actual Deferral
Percentage for the Non-Highly Compensated
Employees who are Eligible Employees, or
(B) the Actual Deferral Percentage for the
Non-Highly Compensated Employees who are
Eligible Employees plus two percentage
points.
If the limitation of this subsection is exceeded or is
expected to be exceeded, the excess (or anticipated excess)
may be eliminated pursuant to subsection (c) or (d).
If this Plan is combined with another plan for the purposes of
Code Section 401(a)(4) or 410(b), which contains a cash or
deferred arrangement within the meaning of Code Section
401(k), the elective contributions under both plans shall be
combined for the purposes of this subsection. If a Highly
Compensated Employee is a participant in two or more plans of
the Company and Affiliates containing a cash or deferred
arrangement within the meaning of Code Section 401(k), for
purposes of determining the deferral ratio with respect to
such Employee, all such cash or deferred arrangements shall be
treated as one cash or deferred arrangement.
(b) Actual Deferral Percentage. The Actual Deferral Percentage for
a specified group of Eligible Employees for a Plan Year shall
be the average of the ratios (calculated separately for each
Employee in such group) of:
(i) the amount of the Before-Tax Contributions and
Qualified Nonelective Contributions (as described in
Section 4.5) actually paid over to the Trust on
behalf of each such Employee for such Plan Year, to
(ii) the Eligible Employee's Compensation for such Plan
Year.
For purposes of this Section 4.8, the Actual Deferral
Percentage for Highly Compensated Employees shall be
determined for the current Plan Year. The Actual Deferral
Percentage for the Non-Highly Compensated Employees shall be
determined for the Plan Year preceding the current Plan Year,
based on Eligible Employees who were Non-Highly Compensated
Employees in such preceding Plan Year regardless of whether
such Eligible Employees become Highly Compensated Employees in
the current Plan Year or are no longer Eligible Employees in
the current Plan Year.
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<PAGE> 17
(c) Reductions During Plan Year. If the Administrator determines
prior to the end of a Plan Year that the limitation of
subsection (a) or Section 4.9(e) might not be satisfied, the
Administrator may reduce the future Before-Tax Contributions
of the Highly Compensated Employees (and the amount of the
Compensation reductions) according to the procedure set forth
in subsection (d) to the extent necessary to satisfy the
limitation.
(d) Reductions After End of Plan Year. If the Administrator
determines after the end of a Plan Year that the limitation of
subsection (a) has not been satisfied, the Administrator shall
make reductions in the Before-Tax Contributions of the Highly
Compensated Employees pursuant to the following procedure:
(i) The Actual Deferral Percentage of the Highly
Compensated Employee with the highest Actual Deferral
Percentage for the Plan Year shall be reduced to the
extent necessary to cause such Highly Compensated
Employee's Actual Deferral Percentage to equal the
Actual Deferral Percentage of the Highly Compensated
Employee with the next highest Actual Deferral
Percentage. This process shall be repeated until the
Plan satisfies the limitation of subsection (a) for
such Plan Year.
(ii) The dollar amount of each reduction made pursuant to
(i) next above shall be determined for each Highly
Compensated Employee and all such dollar amounts for
such Plan Year shall be aggregated.
(iii) The Before-Tax Contributions of the Highly
Compensated Employee with the highest dollar amount
of Before-Tax Contributions for the Plan Year shall
be reduced by the amount necessary to cause such
Highly Compensated Employee's Before-Tax
Contributions to equal the amount of Before-Tax
Contributions of the Highly Compensated Employee with
the next highest amount of Before-Tax Contributions
for such Plan Year. This process shall be repeated
until the total amount of Before-Tax Contributions so
reduced equals the aggregate dollar amount determined
in (ii) next above.
Reductions (adjusted for gains and losses) shall be paid to
Participants not later than 12 months following the close of
the Plan Year with respect to which the limitation of
subsection (a) is exceeded. The amount to be paid shall be
reduced by any amounts distributed to the Participant for the
Plan Year under Section 4.7. Employer Contributions with
respect to amounts which are repaid to a Participant shall be
forfeited from the Participant's Account and treated in the
manner prescribed under Section 6.3(d).
4.9. Section 401(m) Limit on Employer Matching Contributions.
(a) In General. Notwithstanding Section 4.3, Employer Matching
Contributions for any Plan Year shall be limited to the extent
necessary so that the Contribution Percentage (as defined in
subsection (b)) for the group of Highly
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<PAGE> 18
Compensated Employees who are Eligible Employees is not more
than the greater of:
(i) the product of 1.25 and the Contribution Percentage
for the Non-Highly Compensated Employees who are
Eligible Employees, or
(ii) the lesser of:
(A) the product of two and the Contribution
Percentage for the Non-Highly Compensated
Employees who are Eligible Employees, or
(B) the Contribution Percentage for the
Non-Highly Compensated Employees who are
Eligible Employees plus two percentage
points.
If this Plan is combined with another plan for the purposes of
Code Section 410(b) or 401(a)(4), both plans shall be combined
for the purposes of this subsection. If the limitation of this
subsection is exceeded or is expected to be exceeded, the
excess (or the anticipated excess) may be eliminated pursuant
to subsection (c) or (d).
(b) Contribution Percentage. The Contribution Percentage for a
specified group of Employees for a Plan Year shall be the
average of the ratios (calculated separately for each Eligible
Employee in such group) of:
(i) the Employer Matching Contributions paid on behalf of
each such Employee for such Plan Year, to
(ii) the Employee's Compensation for such Plan Year.
For purposes of this Section 4.9, the Contribution Percentage
for Highly Compensated Employees shall be determined for the
current Plan Year. The Contribution Percentage for Eligible
Employees who are Non-Highly Compensated Employees shall be
determined for the Plan Year preceding the current Plan Year,
based on Eligible Employees who were Non-Highly Compensated
Employees in such preceding Plan Year regardless of whether
such Eligible Employees become Highly Compensated Employees in
the current Plan Year or are no longer Eligible Employees in
the current Plan Year.
To the extent permitted by Treasury regulations, the
Administrator may elect to take into account Before-Tax
Contributions and Qualified Nonelective Contributions in
calculating the Contribution Percentage. If a Highly
Compensated Employee is a participant in two or more plans of
the Company or an Affiliate which allocates "matching
contributions" or accepts "employee contributions" (as defined
under Treasury regulations), for purposes of determining the
contribution percentage with respect to such Employee, all
plans shall be treated as one plan.
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<PAGE> 19
(c) Reduction of Contributions During Plan Year. Subject to
Treasury regulations, if the Administrator determines prior to
the end of a Plan Year that the limitation of subsection (a)
or (e) might not be satisfied, the Administrator may reduce
the Employer Contributions of the Highly Compensated Employees
in accordance with rules similar to those described in Section
4.8.
(d) Reduction of Contributions After End of Plan Year. If the
Administrator determines after the end of a Plan Year that the
limitation of subsection (a) or (e) has not been satisfied, it
shall make reductions in the contributions with respect to the
Highly Compensated Employees pursuant to rules similar to
those described in Section 4.8(d), subject to the provisions
of Treasury regulations. Highly Compensated Employees affected
shall forfeit all or a portion of such Employer Contributions,
to the extent provided in Section 1.401(m)-1 of the Treasury
Regulations.
(e) Restriction of "Multiple Use" of the Alternative Limitation.
To the extent required by regulations issued under Section
401(m)(9) of the Code, the limits of this Section or Section
4.8 shall be applied in a manner that reflects any
restrictions on the multiple use of the alternative limitation
contained in paragraph (ii) of Section 4.8(a) and this
subsection (a). Any such restriction on the multiple use of
the alternative limitation shall be implemented pursuant to
uniform rules to be adopted by the Administrator.
4.10. Limitation on Annual Additions.
(a) General Limitation. Notwithstanding Sections 4.1 and 4.3, the
Annual Addition (as defined in subsection (c) below) for a
Participant shall not exceed the lesser of:
(i) $30,000 adjusted for increases in the cost of living
specified by the Department of the Treasury,
effective January 1 of each calendar year and
applicable with respect to the Limitation Year ending
with or within such calendar year; or
(ii) 25% of the Participant's Compensation (as defined in
subsection (d)).
(b) Coverage Under a Defined Benefit Plan.
(i) If a Participant is, or was, covered under a
qualified defined benefit plan maintained by any
Employer or Affiliate (as defined in subsection (d)),
the sum of the Participant's Defined Benefit Fraction
and Defined Contribution Fraction may not exceed 1.0
in any Limitation Year (as defined in subsection
(d)).
(ii) The "Defined Benefit Fraction" is a fraction, the
numerator of which is the sum of the Participant's
Projected Annual Benefits under all
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<PAGE> 20
qualified defined benefit plans (whether or not
terminated) maintained by any Employer or Affiliate,
and the denominator of which is the lesser of:
(A) 1.25 times the dollar limitation of Code
Section 415(b)(1)(A) in effect for the
Limitation Year, or
(B) 1.4 times the Participant's average
Compensation for the three consecutive Plan
Years that produces the highest average.
"Projected Annual Benefit" means the annual benefit
to which the Participant would be entitled under the
terms of the defined benefit plan if the Participant
continued employment until Normal Retirement Age (or
current age, if later) and the Participant's
Compensation for the Limitation Year and all other
relevant factors used to determine such benefit
remained constant until Normal Retirement Age (or
current age, if later).
(iii) The "Defined Contribution Fraction" is a fraction,
the numerator of which is the sum of the Annual
Additions to the Participant's Account under all
qualified defined contribution plans (whether or not
terminated) maintained by any Employer or Affiliate
for the current and all prior Limitation Years, and
the denominator of which is the sum of the lesser of
the following amounts determined for such year and
for each prior year of service with any Employer or
Affiliate:
(A) 1.25 times the dollar limitation in effect
under Code Section 415(c)(1)(A) for such
year, or
(B) 1.4 times the amount which may be taken into
account under Code Section 415(c)(1)(B).
In calculating the Defined Contribution Fraction, the
Administrator may, at its discretion, make the
election described in Code Section 415(e)(6).
(c) "Annual Addition" means the sum of the following amounts with
respect to each Participant: Employer Matching, Discretionary
and Qualified Nonelective Contributions, Before-Tax
Contributions, forfeitures, excess amounts treated as Employer
Contributions pursuant to subsection (e), and the
Participant's after-tax contributions under other qualified
defined contribution plans maintained by any Employer or
Affiliate. Amounts allocated to a post-retirement medical
account described in Code Section 415(l)(2) or 419A(d)(2)
shall be treated as an annual addition when applying the
dollar limitation of subsection (a)(1). Contributions do not
fail to be Annual Additions because they are excess deferrals
within the meaning of Code Section 402(g), excess
contributions within the meaning of Code Section 401(k), or
excess aggregate
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<PAGE> 21
contributions within the meaning of Code Section 401(m) which
are distributed. Rollover contributions, restored forfeitures
pursuant to Section 6.3(b), and loan payments shall not be
considered in the calculation of an Annual Addition.
(d) Additional Definitions. For the purpose of this Section,
"Affiliate" shall have the meaning prescribed in Section 2.3
above, except that the phrase "more than 50 percent" shall be
substituted for the phrase "at least 80 percent" each place it
appears in Code Section 1563(a)(1).
"Limitation Year" means the Plan Year. "Compensation" as used
in this Section means amounts actually paid during a
Limitation Year which are the Participant's wages, salary,
fees for personal services actually rendered in the course of
employment with the Employer or an Affiliate, including
amounts described in Treasury regulation ss. 1.415-2(d)(1),
and excluding amounts which are reduced pursuant to a
Compensation Reduction Agreement and other amounts described
in regulation ss. 1.415-2(d)(3). The Administrator may elect
an alternative definition of Compensation for purposes of this
Section, as permitted under regulations governing Code Section
415.
(e) Excess Amounts. If for any Limitation Year, it is necessary to
limit the allocation of an amount to a Participant's Account
to comply with subsection (a), the Plan shall pay to the
Participant, to the extent necessary and as soon as
administratively feasible, the Before-Tax Contributions, if
any, made on behalf of the Participant and any earnings
thereon. The Employer Matching Contributions with respect to
such Before-Tax Contributions shall be placed in a suspense
account and treated as a Forfeiture to be used in the manner
prescribed in Section 6.3(d) in the next Limitation Year.
If the limitations of subsection (b) are exceeded, the accrued
benefit of the Participant under the defined benefit plan
shall be reduced to the extent necessary to satisfy the
requirements of subsection (b).
ARTICLE V
INVESTMENTS AND ACCOUNTS
5.1. The Investment Funds. The Company from time to time shall
direct the Trustee to maintain certain investment funds under the Trust Fund.
Such investment funds as the Trustee, at the direction of the Company, shall
maintain from time to time shall be referred to individually as an "Investment
Fund" and collectively as the "Investment Funds." The Company may direct the
Trustee to establish new Investment Funds, including an Investment Fund
consisting of common stock of the Company, or to eliminate an Investment Fund
from time to time, in the Company's sole discretion. An investment election form
must be filed by each Participant at the time he becomes a Participant. In
accordance with rules established by the Administrator, a Participant may elect
by writing filed with the Administrator, or in such other method, such as
telephone access provided by the recordkeeper, as prescribed by the
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<PAGE> 22
Administrator, to have his Account balance invested in one or more of the
Investment Funds in even multiples of 5%. If a Participant does not make the
election described above within such reasonable period as may be determined by
the Administrator, the Participant shall be deemed to have elected that his
entire Account balances be invested in the Fund that is determined by the
Administrator to be the most consistent with the preservation of capital.
Amounts credited to a Participant's Account after his investment election shall
be invested in accordance with that election, subject to any subsequent
elections the Participant makes under (a) and (b) below.
(a) Change in Investment Elections. A Participant may elect to
change his investment election by writing filed with the
Administrator, or in such other method, such as telephone
access provided by the recordkeeper, as prescribed by the
Administrator, preceding the Valuation Date for which such
transfer is to be effective. Such change shall apply only with
respect to contributions made by or on behalf of the
Participant that are received by the Trustee after the
Participant's election.
(b) Elections to Transfer Balances Between Investment Funds. A
Participant may elect at any time to transfer 5%, or an even
multiple of 5%, of the balance in his Accounts in an
Investment Fund from that Fund to another of the Investment
Funds. Any such direction given to the Administrator shall be
made in writing, or in such other method, such as telephone
access provided by the recordkeeper, as prescribed by the
Administrator, preceding the date for which such transfer is
to be effective. Any direction given to the recordkeeper shall
be pursuant to rules it establishes, and shall be given no
later than the close of business on the date preceding the
date for which such direction is to be effective. The
foregoing provisions of this subsection are contingent upon
the availability of transfers between Investment Funds under
the terms of the investments made by each Investment Fund.
5.2. Plan Accounting and Allocation of Investment Earnings and
Losses. Accounts and Funds shall be valued as of each Valuation Date and
accounting shall be performed on the basis of generally accepted accounting
principles. The "adjusted net worth" of an Investment Fund as of any Valuation
Date means the then net worth of that Investment Fund as determined by the
Trustee in accordance with the provisions of the Trust Agreement. Earnings,
gains, and losses (realized or unrealized) for each Fund shall be allocated to
the portion ("subaccount") of a Participant's Account maintained with respect to
that Fund, in the same ratio that the value of his subaccount bears to the sum
of the values of all Participants' subaccounts maintained with respect to that
Fund.
ARTICLE VI
VESTING IN ACCOUNTS
6.1. Nonforfeitable Interest in Participant's Account.
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<PAGE> 23
(a) A Participant shall have a nonforfeitable interest at
all times in the total value of his Before-Tax
Contributions Account and his Rollover Contributions
Account.
(b) A Participant who is an Employee of the Company shall
have a nonforfeitable interest in his Employer
Contributions Account if such Participant:
(i) is an Employee at any time on or after
attaining the Normal Retirement Age;
(ii) dies while an Employee;
(iii) suffers a Disability while an Employee;
(iv) is an Employee when all contributions are
completely discontinued; or
(v) is affected by a complete or partial
termination of the Plan (within the meaning
of Section 1.411(d)-2 of the Treasury
regulations).
(c) In all other cases:
(i) For each Participant who does not earn an
Hour of Service on or after January 1 2000:
(A) Participant who is an Employee of
the Company shall have a
nonforfeitable interest in his
Employer Contributions Account
according to the following
schedule:
<TABLE>
<CAPTION>
Years of Service Nonforfeitable Percentage
---------------- -------------------------
<S> <C>
Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 100%
</TABLE>
Notwithstanding the foregoing, each such Employee
of the Company who was a Participant as of March
31, 1995, automatically shall have the
nonforfeitable percentage of his Employer
Contributions Account determined according to
whichever of the following vesting schedules
produces the greater vesting: (I) the schedule
provided above; or (II) the provisions of the Plan
in effect prior to April 1, 1995.
(B) A Participant who is an Employee of
TSX Corporation shall have a
nonforfeitable interest in his
Employer Contributions Account
according to one of the following
schedules:
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<PAGE> 24
(I) For a Participant who was employed
by TSX Corporation on or before June
30, 1997:
<TABLE>
<CAPTION>
Years of Service Nonforfeitable Percentage
---------------- -------------------------
<S> <C>
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 100%
</TABLE>
(II) For a Participant who became an
Employee of TSX Corporation on or
after July 1, 1997:
<TABLE>
<CAPTION>
Years of Service Nonforfeitable Percentage
---------------- -------------------------
<S> <C>
Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 100%
</TABLE>
(C) A Participant who is an Employee of Keptel,
Inc. shall have a nonforfeitable interest in
his Employer Contributions Account according
to the following schedule:
<TABLE>
<CAPTION>
Years of Service Nonforfeitable Percentage
---------------- -------------------------
<S> <C>
Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 100%
</TABLE>
(ii) Each Participant who earns an Hour of
Service on or after January 1, 2000 shall
have a nonforfeitable interest in his
Employee Contributions Account according to
the following schedule:
<TABLE>
<CAPTION>
Years of Service Nonforfeitable Percentage
---------------- -------------------------
<S> <C>
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 100%
</TABLE>
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<PAGE> 25
6.2. Service.
(a) Service shall mean an aggregated period of time commencing
with an Employee's first day of employment or reemployment and
ending on the first day of a Period of Severance (as defined
in Section 2.7). An Employee shall be credited with a Year of
Service upon the completion of each 12 month period of
employment with the Company or an Affiliate. An Employee shall
also receive credit for any Period of Severance of less than
12 consecutive months. Fractional periods of less than a year
shall be expressed in terms of days. If an Employee suffers a
Break in Service and he is thereafter reemployed by the
Company, his Service before such break shall be added to his
Service after reemployment for purposes of determining his
vested percentage in his Employer Contributions Account
attributable to contributions made following his reemployment.
Notwithstanding the preceding provisions of this Section,
Service after a period of five consecutive Breaks in Service
shall be disregarded for purposes of determining a
Participant's nonforfeitable interest in his Employer
Contributions Account attributable to contributions made prior
to such period of five consecutive Breaks in Service.
(b) Notwithstanding the foregoing provisions of this Section 6.2,
the amount of Service earned by each Employee who was a
Participant in the Plan at any time prior to January 1, 1998
(or June 1, 1998 in the case of an Employee of Keptel, Inc. or
TSX Corporation or January 1, 1999 in the case of an Employee
of Integration Technologies L.L.C.) shall not be less than the
amount of Service as calculated in accordance with the terms
of the Plan as in effect immediately prior to such date.
6.3. Forfeiture of Employer Contributions Account.
(a) Upon a Distribution. A Participant shall forfeit the portion
of his Employer Contributions Account that is not
nonforfeitable pursuant to Section 6.1 if the Participant
terminates employment with the Employer and all Affiliates.
(b) Restoration of Forfeitable Amount. The amount of the
forfeiture described in (a) above shall be restored if (i) the
Participant is reemployed by an Employer or an Affiliate and
performs an Hour of Service before incurring five consecutive
Breaks in Service; and (ii) the Participant repays the amount
of the distribution he received under this Article before the
later of (A) his completion of five consecutive Breaks in
Service or (B) the end of the five year period beginning on
the later of the date on which he is notified in writing by
the Committee of his repayment rights or his date of
reemployment. The source for restoring forfeitures shall be
current forfeitures, earnings of the Trust Fund, and, if
necessary, an additional Employer contribution.
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<PAGE> 26
(c) Permanent Forfeiture. If a Participant incurs five consecutive
Breaks in Service, he shall permanently forfeit the portion of
his Employer Contributions Account that had not become
nonforfeitable pursuant to Section 6.1.
(d) Treatment of Forfeitures. Forfeitures shall be treated as
though they are Employer Contributions in the following Plan
Year under Section 4.3 and shall reduce the amount of the
Employer Matching Contributions that otherwise would be
required for such Plan Year.
6.4. Vesting on Transfer of Joint Ventures. Each Employee who is
transferred from employment with an Employer to employment with Systems
Integration Venture, L.L.C. or Products Venture, L.L.C., shall become fully
vested in his Employer Contributions Account under the Plan on the date of
transfer.
6.5. Vesting on Termination of Employment Due to Closure of
Employer's Office in Rolling Meadows, Illinois. Each Participant whose
employment with the Company or any Affiliate is terminated by the Company or
such Affiliate due to the closure of the Company's facility in Rolling Meadows,
Illinois, shall become fully vested in his Employer Contributions Account under
the Plan on the date of termination.
6.6. Vesting on Termination of Employment Due to Closure of
Employer's Facility in West Valley, Utah. Each Participant whose employment with
the Company or any Affiliate is terminated by the Company or such Affiliate due
to the closure of the Company's facility in West Valley, Utah, shall become
fully vested in his Employer Contributions Account under the Plan on the date of
termination.
ARTICLE VII
DISTRIBUTIONS, WITHDRAWALS, AND LOANS
7.1. Distributions Upon Termination of Employment or Disability. A
Participant who incurs a Break in Service prior to death or a Disability shall
receive a lump sum distribution of the entire value of the nonforfeitable
portion of his Account (as determined in Article VI):
(a) as soon as practicable following the termination of employment
or Disability, if the value of the nonforfeitable portion of
the Participant's Account as of the Valuation Date which
immediately follows the termination of employment is $5,000 or
less, or
(b) in any other case, in the month the Participant attains age
65, or if later, as soon as practicable following the date of
termination of employment or Disability.
Notwithstanding subsection (b), a Participant who terminates employment or
incurs a Disability before attaining age 65 may elect in writing, pursuant to
Administrator rules, to receive a lump sum distribution at a date earlier than
that prescribed under subsection (b). The amount of a distribution shall be
determined as of the Valuation Date which immediately precedes the date of
distribution.
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7.2. Distribution Upon Death. If a Participant dies, the
Participant's Beneficiary shall receive a cash lump sum distribution of the
entire value credited to the Participant's Account as soon as practicable
following the date of the Participant's death. The value of the distribution
shall be determined as of the Valuation Date that is coincident with or
immediately follows the date of the Participant's death.
(a) Beneficiary. Subject to subsection (b), "Beneficiary" means
the person or persons (who may be named contingently or
successively), including a trust or an estate, designated by a
Participant, to whom the Participant's Account is to be paid
in the event of the Participant's death. Each designation will
revoke all prior designations by the same Participant. A
designation shall be made on a form prescribed by the
Administrator, and will be effective only when filed in
writing with the Administrator. If no Beneficiary is
designated or a designation is revoked in whole or in part, or
if a designated Beneficiary does not survive, the Account
balance shall be payable to the Participant's estate.
(b) Married Participants. Notwithstanding subsection (a), in the
case of a married Participant, the Beneficiary shall be the
Participant's spouse unless:
(i) the Participant has designated another person as the
Beneficiary,
(ii) the spouse has consented to the designation of the
specific nonspouse Beneficiary, including any class
of Beneficiaries or any contingent Beneficiaries,
(iii) the spouse acknowledges the effect of such election,
(iv) the spouse's consent is in writing, and
(v) the consent is witnessed by a notary public or a
representative of the Plan.
The spouse's consent shall not be required if the spouse
cannot be located or if the Participant furnishes the
Administrator a court order decreeing that the Participant and
the spouse are legally separated or that the spouse has
abandoned the Participant. The preceding sentence shall not be
applicable to the extent provided in a qualified domestic
relations order under Code Section 414(p).
7.3. In-Service Withdrawals. Except as provided in this Section or
in Section 7.7, there shall be no distribution to a Participant while he is an
Employee of the Company or an Affiliate.
(a) Hardship Withdrawals. A Participant may receive an in-service
withdrawal of vested amounts credited to his Account if the
withdrawal is on account of an immediate and heavy financial
need constituting a hardship (as described in
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subsection (a)(ii) and necessary to satisfy the need (as
determined under subsection (a)(iii)). Hardship withdrawals
shall be subject to the following restrictions:
(i) In no event shall a hardship withdrawal from a
Participant's Before-Tax Account exceed the lesser
of:
(A) the amount of the actual expense adjusted to
take into account the expected federal and
income tax liability (e.g., federal and
state ordinary income taxes, the Code
Section 72(t) early distribution tax), and
(B) the total Before-Tax Contributions made on
behalf of the Participant (reduced by prior
withdrawals) or, if less, the value of the
Before-Tax Contributions Account.
(ii) A financial hardship shall be deemed to exist as a
result of the following financial obligations:
(A) medical expenses described in Code Section
213(d) incurred by the Participant, the
Participant's spouse, or any dependents of
the Participant (as defined in Code Section
152) and expenses necessary to obtain
medical treatment,
(B) the purchase (excluding mortgage payments)
of a principal residence for the
Participant,
(C) payment of tuition, related educational
fees, and related room and board expenses
for the next twelve months of postsecondary
education for the Participant, his spouse,
children, or dependents, or
(D) the need to prevent the eviction of the
Participant from his principal residence or
foreclosure on the mortgage of the
Participant's principal residence.
(iii) A distribution shall be deemed necessary to satisfy a
financial need described in paragraph (ii) if the
Company can reasonably rely on the Participant's
representation that the need cannot be relieved:
(A) through reimbursement or Compensation by
insurance or otherwise,
(B) by reasonable liquidation of the
Participant's assets to the extent that such
liquidation would not itself cause an
immediate and heavy financial need,
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(C) by cessation of voluntary contributions
under this Plan or any other plan, or
(D) by other distributions or nontaxable loans
from plans or by borrowing from commercial
sources on reasonable commercial terms.
A Participant's resources shall be deemed to include
those assets of his spouse and minor children that
are reasonably available to the Participant.
(iv) A Participant who receives a hardship distribution
under this subsection (a) shall cease Before-Tax
Contributions under this Plan and any other deferred
compensation plans maintained by the Employer for 12
months after the date of receipt of such withdrawal.
Such Participant also may not make Before-Tax
Contributions to this Plan and any other deferred
compensation plans maintained by the Employer for the
Participant's taxable year immediately following the
taxable year of the hardship withdrawal in excess of
the applicable limit under Code Section 402(g) for
such next taxable year less the amount of such
Participant's elective contributions for the taxable
year of the hardship withdrawal.
(b) Age 59 1/2 Withdrawals. A Participant may request an
in-service withdrawal of the vested amounts credited to his
Account if the Participant has attained age 59 1/2.
(c) Age 55 Withdrawals. A Participant who was a participant in the
TSX Plan on July 1, 1997 may request an in-service withdrawal
of the vested amounts credited to his Employer Contributions
Account as of October 1, 1998 if the Participant has attained
age 55.
Any withdrawal shall be made first from the Participant's Rollover Contributions
Account, second from the Employer Contributions Account (if vested), and third
from the Participant's Before-Tax Contributions Account. Further, in no event
shall the Plan make an in-service withdrawal of less than $500. For the purposes
of this Section 7.3, the value of a Participant's Account shall be determined as
of the Valuation Date immediately preceding the date of the withdrawal.
7.4. Due Date for Payments. Subject to subsection (a) below,
payments to a Participant or Beneficiary shall be made as soon as practicable
following the completion of the valuation process for the Valuation Date which
determines the amount of the payment.
(a) Limitation. Subject to subsection (b), payment of
benefits to a Participant shall start no later than
the earlier of:
(i) the Required Beginning Date, or
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(ii) the sixtieth day after the close of the Plan
Year in which the latest of the following
events occur:
(A) the attainment by the Participant
of the Normal Retirement Age;
(B) the fifth anniversary of the date
on which the Participant commenced
active participation in the Plan;
or
(C) the termination of the
Participant's employment with all
Employers and Affiliates.
(b) Deferral to Ascertain Benefit or Locate Participant.
If payment cannot be made on a date it is required to
be made because the Administrator, after making
reasonable efforts, cannot locate a Participant or
Beneficiary or the amount of the payment cannot be
ascertained, a payment retroactive to the required
date shall be made no later than 60 days after the
earliest date on which the amount of the payment can
be ascertained and the date on which the Participant
or Beneficiary has been located.
7.5. Loans. A Participant who is a "party in interest," as defined
under Section 3(14) of ERISA, may request a loan from his Account by filing a
written request with the Administrator. The Administrator shall adopt such rules
as it may deem necessary or appropriate to implement the provisions of this
Section.
(a) Funding of a Loan; Loan Accounts. Upon the approval of a loan
request, the Administrator shall liquidate the Participant's
investments until the amount of the loan has been reached. The
order in which Accounts shall be liquidated shall be the
Rollover Contributions Account, the Employer Contributions
Account (if vested), and the Before-Tax Contributions Account.
If the Account is invested in more than one Fund, the amount
of a particular Fund which is to be liquidated shall be the
product of the total amount to be liquidated under the Account
and a fraction with a numerator equal to the amount of the
Account invested in the Fund and a denominator equal to the
total balance credited to the Account. The Administrator at
its discretion, may adopt a rule permitting a Participant to
designate the Fund or Funds which shall be liquidated.
(b) Frequency of Loans. No more than two loans may be made to a
Participant in any Plan Year. If the Employer or an Affiliate
maintains another qualified plan under which a Participant in
this Plan has received a loan, such loan shall be treated as
though it had been made under this Plan for the purposes of
this subsection.
(c) Loan Amount. The minimum loan amount shall be $500. The
maximum amount of a loan shall not exceed the lesser of:
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(i) $50,000 reduced by the highest outstanding balance of
loans during the one-year period ending on the day
before the date the loan is made, or
(ii) 50% of the nonforfeitable amount of the Participant's
or Beneficiary's entire balance under all Accounts.
For the purpose of this subsection, Account values shall be
determined as of the most recent Valuation Date within the
12-month period prior to the loan date, adjusted solely for
distributions and contributions made after such Valuation Date
but before the date of the loan.
(d) Term of a Loan. The term of a loan shall be designated by the
Participant (in full one-year periods), but shall not exceed
five years, except that the term of the loan to a Participant
used to acquire any dwelling unit that within a reasonable
time after the loan is made is to be used (determined at the
time the loan is made) as the principal residence of the
Participant shall not exceed 10 years. The term of a loan
shall expire on the date of the Participant's termination of
employment from the Employer and all Affiliates, or his death
if earlier.
(e) Interest. A loan shall bear a reasonable rate of interest as
determined by the Administrator. Such rate shall be determined
by taking into account the interest rates being charged at the
time the loan is granted on loans of a comparable nature. The
interest rate shall be fixed for the entire term of the loan.
(f) Payments. Repayment of the loan principal and payment of the
interest thereon shall be made by approximately equal payments
that will permit the loan to be fully amortized over the term
selected by the Participant pursuant to subsection (d).
Subject to Treasury regulations and Administrator rules, the
preceding sentence shall not be applicable with respect to a
period when a Participant is on a leave of absence without
Compensation for up to one year. Required payments shall be
made by payroll deductions in each payroll period. If a
Participant's Compensation is insufficient to make such
payments in full, the amount of the deficiency shall be paid
by personal check (not less frequently than each quarter). A
prepayment of the entire remaining balance of the loan and
accrued interest may be made by personal check at any time
without penalty. Loan repayments shall be invested in
accordance with the Participant's current investment direction
pursuant to Section 5.1.
(g) Promissory Note. A loan shall be evidenced by a promissory
note in such form and containing such terms as the
Administrator shall direct, subject to the provisions of this
section.
(h) Security and Default. A Participant's obligation to repay a
loan and interest thereon shall be secured by his Loan
Account. If a Participant fails to make a required payment and
the Administrator determines that the loan is in default,
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the unpaid balance of the loan and accrued interest shall be
deducted from the Loan Account until the total amount of the
unpaid balance and accrued interest has been reached. The
promissory note shall then be canceled. The amount deducted
from the Loan Account shall be treated as a distribution to
the Participant. No deduction shall be made with respect to
the Before-Tax Contributions Account until an event which
would entitle the Participant to a distribution from that
Account.
7.6. Eligible Rollover Distributions. Notwithstanding any provision
of the Plan to the contrary that would otherwise limit a Distributee's election
under this Article, a Distributee may elect, at the time and in the manner
prescribed by the 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.
(a) "Eligible Rollover Distribution" is any distribution of all or
any portion of the balance to the credit of the Distributee,
except that an Eligible Rollover Distribution does not
include: 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).
(b) "Eligible Retirement Plan" is 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.
(c) "Distributee" includes an Employee or former Employee. In
addition, the Employee's or former Employee's surviving spouse
and the Employee's or former Employee's spouse or former
spouse who is the alternate payee under a qualified domestic
relations order, as defined in Section 414(p) of the Code, are
Distributees with regard to the interest of the spouse or
former spouse.
(d) "Direct Rollover" is a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
If a distribution is one to which Code Sections 401(a)(11) and 417 do not apply,
such distribution may commence less than 30 days after the notice required under
Section 1.411(a)-11(c) of the Income Tax Regulations is given, provided that:
(i) the Administrator clearly informs the Participant that the Participant has a
right to a period of at least 30 days after receiving the notice
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to consider the decision of whether or not to elect a distribution (and, if
applicable, a particular distribution option); and (ii) the Participant, after
receiving the notice, affirmatively elects a distribution.
7.7. Required Beginning Date. Notwithstanding the foregoing, a
Participant shall receive a distribution of his Account not later than his
Required Beginning Date. The Required Beginning Date shall mean April 1 of the
calendar year following the later of:
(a) the calendar year in which the Participant attains age 70 1/2,
or
(b) the calendar year in which he leaves the employ of the Company
and all Affiliates, unless he is Five Percent Owner of the
Company at any time during the five-Plan Year period ending in
the calendar year in which the Participant attains age 70 1/2,
in which case this subsection (b) shall not apply.
The preceding provisions of Section 7.7 will not apply to a Participant who
reaches 70 1/2 on or after January 1, 1996 and prior to January 1, 1999, unless
he elects to have such provisions apply to him. This election shall not be
available to any Participant who is a Five Percent Owner of the Company at any
time during the five-Plan Year period ending in the calendar year in which the
Participant attains age 70 1/2. The Administrator shall notify any such
Participant of his right to make such an election. Such election shall be made
in writing in the manner and at the time prescribed by the Administrator. If
such election is not made by a Participant, his Required Distribution Date will
be April 1 of the calendar year following the calendar year in which he attains
age 70 1/2.
7.8. Payment Medium. Distributions made pursuant to Sections 7.1
and 7.2 shall be made in cash; provided, however, that distributions of the
portion of a Participant's Account accrued as of June 30, 1997 under the TSX
Plan and invested in shares of ANTEC Corporation Common Stock shall, at the
election of the Participant, be made in cash or property.
ARTICLE VIII
TOP HEAVY PROVISIONS
8.1. Application of Top-Heavy Provisions.
(a) Single Plan Determination. Except as provided in subsection
(b)(ii), if as of a Determination Date, the sum of the amount
of the Section 416 Accounts of Key Employees and the
Beneficiaries of deceased Key Employees exceeds 60% of the
amount of the Section 416 Accounts of all Participants and
Beneficiaries, the Plan is top-heavy and the provisions of
this Article shall become applicable.
If any individual has not performed services for an Employer
or an Affiliate at any time during the five-year period ending
on the Determination Date, the Section 416 Account of such
individual or his Beneficiary shall be excluded from all
computations under this Article. However, if such an
individual
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returns to employment with an Employer or Affiliate, his
Section 416 Account shall be included in calculations under
this Section. The Section 416 Account of an individual who was
a Key Employee but is not a Key Employee for the Plan Year
containing the Determination Date and the preceding four Plan
Years or the Section 416 Account of the Beneficiary of such an
individual shall be excluded from all computations under this
Article.
(b) Aggregation Group Determination.
(i) If as of a Determination Date this Plan is part of an
Aggregation Group which is top-heavy, the Plan is
top-heavy and the provisions of this Article shall
become applicable. Top-heaviness for the purpose of
this subsection shall be determined with respect to
the Aggregation Group in the same manner as described
in subsection (a) except that if the Aggregation
Group includes a defined benefit plan, the Section
416 Account shall include the present value of the
accrued benefit of a participant or a beneficiary
under such plan.
(ii) If this Plan is top-heavy under subsection (a), but
the Aggregation Group is not top-heavy, this Article
shall not be applicable.
(c) Calculations. The Administrator shall have responsibility to
make all calculations to determine whether this Plan is
top-heavy. The Administrator may use a method which
approximates the calculations described in this Section
provided that it mathematically proves that the Plan is not
top-heavy, such as a method which overstates the Section 416
Accounts with respect to Key Employees and understates the
Section 416 Accounts with respect to non-Key Employees.
8.2. Definitions.
(a) "Aggregation Group" means this Plan and all other plans
(including a frozen plan) maintained by any Employer and its
Affiliates which cover a Key Employee or his Beneficiary and
any other plan which enables a plan covering a Key Employee or
his Beneficiary to meet the requirements of Code Sections
401(a)(4) or 410. A terminated plan shall be included in an
Aggregation Group if it was maintained by an Employer or an
Affiliate within the last five years ending on the
Determination Date for the Plan Year in question and would,
but for the fact it was terminated, meet the conditions of the
preceding sentence. In addition, at the election of the
Administrator, the Aggregation Group may be expanded to
include any other qualified plan maintained by any Employer or
Affiliate if such expanded Aggregation Group meets the
requirements of Code Sections 401(a)(4) and 410.
(b) "Compensation" means compensation as defined in Section
4.9(10).
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(c) "Determination Date" means the last day of the Plan Year
immediately preceding the Plan Year for which top-heaviness is
to be determined.
(d) "Key Employee" means an Employee (or a former or deceased
Employee) who, for the Plan Year containing the Determination
Date or any of the four preceding Plan Years, is:
(i) an officer of an Employer or an Affiliate having an
annual Compensation for a Plan Year greater than 150%
of the amount in effect under Code Section
415(c)(1)(A) for the calendar year in which the Plan
Year ends; provided, however, that no more than the
lesser of:
(A) 50 Employees, or
(B) the greater of (I) three Employees or (II)
10% of the greatest number of Employees of
the Employer and Affiliates for the Plan
Year containing the Determination Date and
the preceding four Plan Years;
shall be treated as officers, and such officers shall
be those with the highest annual Compensation in the
five-year period;
(ii) one of the ten Employees having an annual
Compensation in excess of the amount in effect under
Code Section 415(c)(1)(A) and owning (or considered
as owning within the meaning of Code Section 318)
both more than a 1/2% interest in the Employer and
the largest interests in an Employer;
(iii) a Five Percent Owner of an Employer; or
(iv) a 1% Owner of an Employer having an annual
Compensation of more than $150,000.
For the purpose of subsection (d)(1)(B)(ii), if 10% of the
number of Employees is not an integer, the number shall be
increased to the nearest integer. For the purpose of
subsection (d)(ii), if two Employees have the same interest in
the Employer, the Employee having the greater annual
Compensation from the Employer shall be treated as having a
larger interest. For the purposes of subsections (d)(iii) and
(d)(iv), ownership shall be determined in accordance with Code
Section 416(i)(1)(B) and (C).
(e) "Section 416 Account" means the sum of:
(i) the amount credited to a Participant's or
Beneficiary's Account under this Plan as of the most
recent Valuation Date occurring within the 12-month
period ending on the Determination Date (or his
account under another qualified defined contribution
plan which is part of an
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Aggregation Group) including uncontributed amounts due as of
such Valuation Date but which are actually contributed on or
before the Determination Date;
(ii) the present value of the accrued benefit credited as
of a Determination Date to a Participant or
Beneficiary under a qualified defined benefit plan
which is part of an Aggregation Group; and
(iii) the amount of distributions to the Participant or
Beneficiary during the five-year period ending on the
Determination Date, including a distribution under a
terminated plan which, if it had not been terminated,
would have been required to be included in an
Aggregation Group, and a distribution of Employee
contributions, but excluding a distribution which is
a tax-free rollover contribution (or similar
transfer) that is not initiated by the Participant or
that is contributed to a plan which is maintained by
an Employer or an Affiliate; reduced by:
(iv) the amount of a rollover contribution (or similar
transfer) which is accepted by this Plan (or a plan
forming part of an Aggregation Group) after December
31, 1983 and which was initiated by the Participant
and derived from a plan not maintained by the
Employer or an Affiliate, and the earnings on such
rollover contribution.
8.3. Minimum Contribution.
(a) General. If this Plan is determined to be top-heavy
under the provisions of Section 8.1 with respect to a
Plan Year, with respect to each Eligible Employee who
is not a Key Employee and is an Employee on the last
day of the Plan Year, the sum of Employer
contributions (excluding, in the case of Non-Highly
Compensated Employees, contributions to a qualified
plan under a Compensation Reduction Agreement) and
forfeitures reallocated to the Employee under all
qualified defined contribution plans in the
Aggregation Group shall not be less than 3% of such
Employee's Compensation. This Section shall not be
applicable with respect to an Employee who is also
covered under a defined benefit plan maintained by an
Employer or an Affiliate which provides the benefit
specified by Code Section 416(c)(1).
(b) Exception. The contribution rate specified in
subsection (a) shall not exceed the percentage at
which Employer contributions and forfeitures are
allocated under the Plan or the plans of the
Aggregation Group to the account of the Key Employee
for whom such percentage is the highest for the Plan
Year. For the purpose of this subsection, the
percentage for each Key Employee shall be determined
by dividing the Employer contributions and
forfeitures for the Key Employee by the amount of his
total Compensation for the year not in excess of
$200,000, $150,000 for Plan Years beginning on or
after January 1, 1994, (as adjusted by the Secretary
of the Treasury under Code Section 416(d)). This
subsection shall not apply if this Plan is required
to be included in an
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Aggregation Group and the Plan enables a defined
benefit plan which is part of the Aggregation Group
to meet the requirements of Code Section 401(a)(4) or
410.
8.4. Limit on Annual Additions: Combined Plan Limit.
(a) General. If this Plan is determined to be top-heavy under
Section 8.1, Section 4.10(b)(ii) and (iii) of this Plan shall
be applied by substituting 1.0 for 1.25.
(b) Exception. Subsection (a) shall not be applicable if:
(i) Section 8.3 is applied by substituting "4%" for "3%",
and
(ii) this Plan would not be top-heavy if "90%" is
substituted for "60%" in Section 8.1.
(c) Transitional Rule. If, but for this subsection (c), subsection
(a) would begin to apply with respect to the Plan, the
application of subsection (a) shall be suspended with respect
to a Participant so long as there are:
(i) no Employer contributions, forfeitures, or voluntary
nondeductible contributions allocated to such
Participant, and
(ii) no accruals under a qualified defined benefit plan
for such Participant.
ARTICLE IX
ADMINISTRATION AND FINANCING
9.1. Plan Sponsor and Plan Administrator. The Company is the "plan
sponsor" of the Plan. The Company has delegated all administrative
responsibilities under this Article IX to a committee that shall be composed of
not less than three individuals who may, but need not be Employees. This
committee is the "plan administrator" of the Plan, as that term is used in ERISA
and the Code, and shall be known as the Administrator.
9.2. Administrative Responsibilities. The Administrator shall be
the named fiduciary that has the authority to control and manage the operation
and administration of the Plan. The Administrator shall make such rules,
interpretations, and computations and take such other actions to administer the
Plan as the Administrator may deem appropriate. The rules, interpretations,
computations, and actions of the Administrator shall be binding and conclusive
on all persons. In administering the Plan, the Administrator shall act in a
nondiscriminatory manner to the extent required by Code Section 401(a) and
related provisions of the Code and shall at all times discharge its duties with
respect to the Plan in accordance with the standards set forth in ERISA Section
404(a)(1).
9.3. Plan Assets.
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(a) Trust Agreement. The Company shall maintain a Trust Fund as a
part of the Plan in order to implement and carry out the
provisions of the Plan and to finance the benefits under the
Plan, by entering into one or more Trust Agreements. Any Trust
Agreement is designated as, and shall constitute, a part of
this Plan, and all rights which may accrue to any person under
this Plan shall be subject to all the terms and provisions of
such Trust Agreement. The Company may modify any Trust
Agreement from time to time to accomplish the purpose of the
Plan and may replace any Trustee and appoint a successor
Trustee or Trustees. The assets of the Trust Fund shall not be
used for or diverted to purposes other than the exclusive
benefit of Participants and Beneficiaries.
(b) Management of Plan Assets. The Administrator shall be a named
fiduciary with respect to control and management of the assets
of the Plan, and shall have the authority to: (i) appoint one
or more Trustees to hold the assets of the Plan in trust and
to enter into a Trust Agreement with each Trustee it appoints;
(ii) appoint one or more Investment Managers (within the
meaning of ERISA Section 3(38)) for any assets of the Plan and
to enter into an investment management agreement with each
Investment Manager it appoints; and (iii) direct the
investment of any Plan assets not assigned to an Investment
Manager. Each Investment Manager shall acknowledge that it is
a fiduciary under the Plan in writing delivered to the
Administrator and the Trustee.
(c) Trustees and Investment Managers. Each Trustee shall have the
exclusive authority and discretion to control and manage the
Plan assets held in trust by it, except to the extent that:
(i) the Administrator directs how those assets shall be
invested; (ii) the Administrator allocates the authority to
manage those assets to a committee or to one or more
Investment Managers; or (iii) the Plan prescribes how those
assets shall be invested. Each Investment Manager shall have
the exclusive authority to manage, including the power to
acquire and dispose of, the Plan assets assigned to it by the
Administrator, except to the extent that the Plan prescribes
how those assets shall be invested. In accordance with ERISA
Section 404(a)(1)(C), the Trustee and each Investment Manager
shall be solely responsible for diversifying the investment of
the Plan assets assigned to them by the Administrator, except
to the extent that the Administrator directs or the Plan
prescribes how those assets shall be invested.
(d) Delegation of Responsibilities. The Administrator may engage
such attorneys, actuaries, accountants, consultants, or other
persons to render advice or to perform services with regard to
any of its responsibilities under the Plan as it shall
determine to be necessary or appropriate. The Administrator
may designate by written instrument (signed by both parties)
one or more actuaries, accountants, consultants, or other
persons to carry out, where appropriate, responsibilities of
the Administrator.
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<PAGE> 39
(e) Service in Several Fiduciary Capacities. Nothing in this
section shall prohibit any person or group of persons from
serving in more than one fiduciary capacity with respect to
the Plan (including service both as the plan administrator and
as a Trustee).
9.4. Contributions. The Company and any Employer shall make such
contributions to the Trust Fund as are required by the provisions of the Plan,
subject to the right of the Company to terminate the Plan or the Employer to
withdraw from the Plan. Forfeitures arising under the Plan for any reason shall
be used as soon as possible to reduce the Employers' contributions under the
Plan.
9.5. Expenses of Administration. The compensation of the Trustee,
any reasonable and proper attorneys' or management fee incurred in the
administration of the Trust Fund or other reasonable and proper Plan expenses
shall be paid pursuant to Section 11.8.
9.6. Incapacity. If, in the opinion of the Administrator, any
Participant (or Beneficiary) becomes unable to handle properly any property
distributable under the Plan, the Administrator may make any arrangement for
distribution on such Participant's behalf that it determines will be beneficial
to such Participant, including (without limitation) distribution to such
Participant's guardian, conservator, spouse, or dependent, and such distribution
so made shall be a complete discharge of the liabilities of the Plan with
respect to the Participant.
9.7. Indemnity for Liability. To the maximum extent allowed by law
and to the extent not otherwise indemnified, the Company shall indemnify any
current or former officer, director, or employee of the Company, and each member
of the committee acting as Administrator, against any and all claims, losses,
damages, expenses, including counsel fees, incurred by such persons and any
liability, including any amounts paid in settlement with the Company's approval,
arising from such person's action or failure to act.
9.8. Claims and Inquiries.
(a) Application for Benefits. Applications for benefits and
inquiries concerning the Plan or concerning present or future
rights to benefits under the Plan shall be submitted to the
Administrator in writing. An application for benefits shall be
submitted on the prescribed form and shall be signed by the
Participant or, in the case of a benefit payable after the
death of a Participant, by the Participant's Beneficiary.
(b) Denial of Application. In the event an application for
benefits is denied in whole or in part, the Administrator
shall notify the applicant in writing of the denial and the
right to a review of the denial. The written notice shall set
forth, in a manner calculated to be understood by the
applicant, specific reasons for the denial, specific reference
to the provisions of the Plan on which the denial is based, a
description of any information or material necessary for the
applicant to perfect the application, an explanation of why
the material is necessary and an explanation of the review
procedure under the Plan. The written notice shall be given to
the applicant within a reasonable period of time
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(not more than 90 days) after the Administrator receives the
application, unless special circumstances require further time
for processing and the applicant is advised of the extension.
In no event shall the notice be given more than 180 days after
the Administrator receives the application.
(c) Review of Denied Claims.
(i) Review Panel. The Administrator shall from time to
time appoint a panel (the "Review Panel") which shall
consist of three individuals who may, but need not,
be employees of the Company. The Review Panel shall
be the named fiduciary that has the authority to act
with respect to any appeal from a denial of benefits
or a determination of benefit rights.
(ii) Request for Review. An applicant whose application
for benefits is denied in whole or in part, or the
applicant's duly authorized representative, may
appeal from the denial by submitting to the Review
Panel a request for a review of the application
within 60 days after receiving written notice of the
denial from the Administrator. The Administrator or
the Company shall give the applicant or the
representative an opportunity to review pertinent
materials, other than legally privileged documents,
in preparing the request for a review. The request
for a review shall be in writing. The request for a
review shall set forth all of the grounds on which it
is based, all facts in support of the request, and
any other matters which the applicant deems
pertinent. The Review Panel may require the applicant
to submit such additional facts, documents, or other
materials as it may deem necessary or appropriate in
making its review.
(iii) Decision on Review. The Review Panel shall act on
each request for a review within 60 days after
receipt, unless special circumstances require further
time for processing and the applicant is advised of
the extension. In no event shall the decision on
review be rendered more than 120 days after the
Review Panel receives the request for a review. The
Review Panel shall give prompt, written notice of its
decision to the applicant and to the Administrator.
In the event that the Review Panel confirms the
denial of the application for benefits in whole or in
part, the notice shall set forth, in a manner
calculated to be understood by the applicant, the
specific reasons for the decision and specific
references to the provisions of the Plan on which the
decision is based.
(iv) Rules and Interpretations. The Review Panel shall
adopt such rules, procedures, and interpretations of
the Plan as it deems necessary or appropriate in
carrying out its responsibilities under this Section
9.8.
(v) Exhaustion of Remedies. No legal action for benefits
under the Plan shall be brought unless and until the
claimant: (A) has submitted a written application for
benefits in accordance with Section 9.8(a); (B)
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has been notified by the Administrator that the
application is denied; (C) has filed a written
request for a review of the application in accordance
with subsection (c)(ii) above; and (D) has been
notified in writing that the Review Panel has
affirmed the denial of the application; provided,
however, that legal action may be brought after the
Administrator or the Review Panel has failed to take
any action on the claim within the time prescribed by
this Section.
ARTICLE X
AMENDMENT AND TERMINATION
10.1. Amendments to Conform with Law. The Company reserves the right
to make by amendment such changes in, additions to, and substitutions for the
provisions of this Plan, to take effect retroactively or otherwise, as is deemed
necessary or advisable for the purpose of conforming the Plan to Code Section
401 or to any other present or future federal law relating to trusts and plans
of this or similar nature, and to the administrative regulations promulgated
pursuant to the Code and such laws.
10.2. Other Amendments and Termination. The Company also reserves
the right to amend this Plan at any time, and from time to time, in any manner
which it deems desirable including, but not by way of limitation, to change or
modify contributions under the Plan, and to change any provision relating to the
distribution or payment, or both, of any Account balances. The Company further
reserves the right to terminate this Plan at any time.
10.3. Form of Amendment. Any such amendment shall be made by an
instrument in writing, signed by a duly authorized officer or officers of the
Company certifying that said amendment has been authorized by the Board of
Directors of the Company.
10.4. Limitations on Amendments. The provisions of this Article X
are subject to the following restrictions:
(a) No amendment shall operate either directly or indirectly to
give an Employer any interest whatsoever in any fund or
property held by the Trustee under the terms of this Plan, or
to permit corpus or income of the Trust to be used for or
diverted to purposes other than the exclusive benefit of
persons who are Participants or Beneficiaries.
(b) Except as permitted by Treasury regulations or to the extent
necessary to conform to the laws and regulations described in
Section 10.1, no such amendment shall operate either directly
or indirectly to deprive any Participant of the value of his
nonforfeitable interest, the value of the Account as of the
date of the amendment, or eliminate an optional form of
benefit with respect to the Account value immediately prior to
the amendment.
10.5. Merger or Consolidation or Transfer. No merger or
consolidation of the Plan with, or any transfer of assets or liabilities of the
Plan to or from, any other plan shall occur
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<PAGE> 42
unless each Participant in the Plan would be entitled to receive a benefit
immediately after the merger, consolidation, or transfer (if the Plan then
terminated) which is equal to or greater than the benefit he would have been
entitled to receive immediately before the merger, consolidation, or transfer
(if the Plan had then terminated).
ARTICLE XI
MISCELLANEOUS
11.1. Gender and Number. Except when otherwise indicated by the
context, any masculine terminology shall also include the feminine, and the
definition of any term in the singular shall also include the plural.
11.2. Applicable Law. To the extent not preempted by the laws of the
United States, the laws of the State of Georgia shall be the controlling law in
all matters relating to the Plan.
11.3. Severability. If a provision of this Plan shall be held
illegal or invalid, the illegality or invalidity shall not affect the remaining
parts of the Plan, and the Plan shall be construed and enforced as if the
illegal or invalid provision had not been included in this Plan.
11.4. Headings. The headings of this Plan are inserted for
convenience or reference only and are not to be considered in the construction
or the interpretation of the Plan.
11.5. No Enlargement of Employee Rights. Nothing contained in the
Plan shall be deemed to give any Employee the right to be retained in the
service of the Employer or an Affiliate or to interfere with the right of the
Employer or Affiliate to discharge or retire any Employee at any time.
11.6. Special Rules Relating to Veterans' Reemployment Rights Under
USERRA. Effective on and after December 12, 1994, the following special
provisions of this Section shall apply to an Employee or Participant who is
reemployed in accordance with the reemployment provisions of USERRA following a
period of qualifying military service (as determined under USERRA):
(a) Each period of qualifying military service served by an
Employee or Participant shall, upon such reemployment, be
deemed to constitute Service with the Employer for all
purposes of the Plan, including determining the Participant's
vested percentage in his Employer Contributions Account.
(b) The Participant shall be permitted to make up Before-Tax
Contributions missed during the period of qualifying military
service. The Participant shall have a period of time beginning
on the date of the Participant's reemployment with the
Employer following his period of qualifying military service
and extending over the lesser of (i) the product of three and
the Participant's period of qualifying military service, and
(ii) five years, to make up such missed Before-Tax
Contributions.
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(c) If the reemployed Participant elects to make up Before-Tax
Contributions in accordance with paragraph (b) above, the
Employer shall make any Employer Matching Contributions that
would have been made on behalf of such Participant had the
Participant made such Before-Tax Contributions during the
period of qualifying military service.
(d) If the Employer made any Employer Discretionary Contributions
or Qualified Nonelective Contributions to the Plan during the
period of qualifying military service, the Employer shall make
an Employer Discretionary Contribution or Qualified
Nonelective Contribution on behalf of the Participant upon the
Participant's reemployment following his period of qualifying
military service, in the amount that would have been made on
behalf of such Participant had the Participant been employed
during the period of qualifying military service.
(e) The Employer shall not (i) credit earnings to a Participant's
Account with respect to any Before-Tax, Employer Matching,
Employer Discretionary or Qualified Nonelective Contribution
before such contribution is actually made, or (ii) make up any
allocation of forfeitures, with respect to the period of
qualifying military service.
(f) A reemployed Participant shall be entitled to accrued benefits
attributable to Before-Tax Contributions only if such
contributions are actually made.
(g) For all purposes under the Plan, including the Employer's
liability for making contributions on behalf of a reemployed
Participant as described above, the Participant shall be
treated as having received Compensation from the Employer
based on the rate of Compensation the Participant would have
received during the period of qualifying military service, or
if that rate is not reasonably certain, on the basis of the
Participant's average rate of Compensation during the 12-month
period immediately preceding such period.
(h) If a Participant makes a Before-Tax Contribution or the
Employer makes an Employer Matching, Employer Discretionary or
Qualified Nonelective Contribution in accordance with the
foregoing provisions of this Section 11.6:
(i) such contributions shall not be subject to any
otherwise applicable limitation under Code Section
402(g), 404(a) or 415, and shall not be taken into
account in applying such limitations to other
Participant or Company contributions under the Plan
or any other plan, with respect to the year in which
such contributions are made, and such contributions
shall be subject to these limitations only with
respect to the year to which such contributions
relate and only in accordance with regulations
prescribed by the Internal Revenue Service; and
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(ii) the Plan shall not be treated as failing to meet the
requirements of Code Section 401(a)(4), 401(a)(26),
401(k)(3), 401(k)(11), 401(k)(12), 401(m), 410(b) or
416 by reason of such contributions.
11.7. Plan Supplements. The provisions of the Plan may be modified
by Supplements to the Plan. The terms and provisions of each Supplement are a
part of the Plan and supersede the provisions of the Plan to the extent
necessary to eliminate inconsistencies between the Plan and the Supplement.
11.8. Plan Expenses. All expenses incident to the maintenance and
administration of this Plan shall be paid by the Trust or by the Employer, as
directed by the Company. Such expenses shall include, but not be limited to,
fees of accountants, auditors, counsel, investment managers, custodians, and
other specialists, and other costs of administering the Plan and Trust.
11.9. Nonassignability. Except as provided in a qualified domestic
relations order as defined in Code Section 414(p) or as otherwise permitted by
Code Section 401(a)(13), no Account or benefit under this Plan shall be
anticipated, assigned (either at law or in equity), alienated or subject to
attachment, garnishment, levy, execution, or other legal or equitable process
(whether voluntary or involuntary). The Administrator shall establish a
procedure to determine the qualified status of a domestic relations order and to
administer distributions under a qualified domestic relations order. In no event
shall a domestic relations order be determined to be a qualified domestic
relations order if it requires the Plan to make distributions to an alternate
payee prior to the date that a Participant attains "earliest retirement age."
Notwithstanding the foregoing, the Plan may make a distribution to an alternate
payee prior to the date that a Participant attains "earliest retirement age" if
the qualified domestic relations order provides that the Plan and the alternate
payee may agree in writing to the earlier distribution, and the distribution is
made pursuant to such a written agreement. "Earliest retirement age" means the
earliest to occur of:
(a) the date the Participant terminates employment,
(b) the date the Participant attains age 50, or
(c) the date the Participant dies.
11.10. Missing Persons. If the Administrator is unable to locate a
proper payee within one year after an Account becomes payable, the Administrator
may treat the balance credited to the Account as a forfeiture; however, if a
claim for benefits is subsequently presented by a person entitled to a payment,
the forfeited amount shall be recredited to the Account upon verification of the
claim, except for those amounts that have been paid pursuant to an escheat or
other applicable law. Forfeitures restored under this subsection shall be paid
from current forfeitures, earnings of the Trust Fund, and if insufficient, from
an additional Employer Contribution.
11.11. Withholding Taxes. The Employer or Trustee may withhold from a
Participant's Compensation or any payment under this Plan any taxes required to
be withheld with respect to contributions or benefits under this Plan and such
sum as the Employer or Trustee
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may reasonably estimate as necessary to cover any taxes for which they may be
liable and which may be assessed with respect to contributions or benefits under
this Plan.
11.12. Statement of Account. As soon as practicable after the
December 31 Valuation Date, or more frequently as the Administrator shall
specify, each Participant will be furnished with a statement reflecting the
condition of his Account in the Trust Fund as of such Valuation Date. No
Participant shall have the right to inspect the records reflecting the Account
of any other Participant.
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APPENDIX A
Participating Employers
The following Affiliates of the Company are eligible to participate in the Plan
as of the specified Effective Date:
<TABLE>
<CAPTION>
Affiliate Effective Date
--------- --------------
<S> <C>
Keptel, Inc. October 1, 1998
TSX Corporation October 1, 1998
</TABLE>
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<PAGE> 47
SUPPLEMENT A
Former Participants of the
Itel Corporation Employees Capital Accumulation Plan
A-1. Special Provisions for the Former Participants of the Itel
Corporation Employees Capital Accumulation Plan.
(a) Applicability of the Plan. The provisions of the Plan
shall become fully applicable to a person who was a
participant or member of the Itel Corporation
Employees Capital Accumulation Plan ("Prior Plan").
(b) Accounts. The Account of a Participant who was
covered under the Prior Plan shall also include an
"After-Tax Contributions Account," a "Deductible
Employee Contribution Account," and a "Pre-1980
Company Account" as defined under the terms of the
Prior Plan as of January 1, 1992.
(c) Vesting. Notwithstanding Article VI, a Participant
who was covered under the Prior Plan shall have a
nonforfeitable interest in his entire Account
(including his Employer Contributions Account),
regardless of his years of Service.
(d) In-Service Withdrawals. In lieu of the order provided
under Section 7.3, a withdrawal shall be made from
the Account of a Participant who was covered under
the Prior Plan in the following order: the After-Tax
Contributions Account, the Rollover Contributions
Account, the Pre-1980 Company Account, the Employer
Contributions Account (to the extent vested), the
Before-Tax Contributions Account, and the Deductible
Employee Contributions Account.
(e) Loans. In lieu of the order provided under Section
7.5(a), the order in which Accounts shall be
liquidated shall be the After-Tax Contributions
Account, the Rollover Contributions Account, the
Pre-1980 Company Account, the Employer Contributions
Account, and the Before-Tax Contributions Account,
but not earnings accrued after December 31, 1988 on
the Before-Tax Contributions Account (as determined
by the Administrator).
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SUPPLEMENT B
Former Participants of the
TSX Corporation 401(k) Savings Plan
B-1. Special Provisions for the Former Participants of the TSX
Corporation 401(k) Savings Plan.
(a) Applicability of the Plan. The provisions of the Plan
shall become fully applicable to an Employee who was
a participant in the TSX Corporation 401(k) Savings
Plan (the "Prior Plan").
(b) Accounts. The Plan Accounts maintained for each
Employee who was a participant under the Prior Plan
have been transferred to and merged with the Plan.
Each Account so transferred from the Prior Plan shall
continue under this Plan as a Prior Plan Before-Tax
Contributions Account, a Prior Plan Employer
Contributions Account or a Prior Plan Rollover
Contributions Account (the "Prior Plan Accounts").
(c) Vesting. Each Participant with a Prior Plan Account
shall have his nonforfeitable interest in his Prior
Plan Account determined in accordance with Article VI
of the Plan (as if such Prior Plan Account were a
comparable Plan Account).
(d) In-Service Withdrawals. Each Participant with a Prior
Plan Account may make in-service withdrawals in
accordance with Section 7.3 of the Plan (as if such
Prior Plan Account were a comparable Plan Account).
(e) Loans. A Participant may request a loan from his
Prior Plan Account in accordance with Section 7.5 of
this Plan.
(f) Payment of Account Balances. Distribution of a
Participant's Prior Plan Account shall be made in
accordance with the provisions of Article VII.
(g) Directed Investment. Each Participant with a Prior
Plan Account may direct the investment of his Prior
Plan Account in accordance with Article V of the
Plan.
B-2. Use of Terms. All terms and provisions of the Plan shall apply
to this Supplement B, except that where the terms and
provisions of the Plan and this Supplement B conflict, the
terms and provisions of this Supplement B shall govern.
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SUPPLEMENT C
Former Participants of the
Keptel, Inc. 401(k) Savings Plan
C-1. Special Provisions for the Former Participants of the Keptel,
Inc. 401(k) Savings Plan.
(a) Applicability of the Plan. The provisions of the Plan
shall become fully applicable to an Employee who was
a participant in the Keptel, Inc. 401(k) Savings Plan
(the "Prior Plan").
(b) Accounts. The Plan Accounts maintained for each
Employee who was a participant under the Prior Plan
have been transferred to and merged with the Plan.
Each Account so transferred from the Prior Plan shall
continue under this Plan as a Prior Plan Before-Tax
Contributions Account, a Prior Plan Employer
Contributions Account or a Prior Plan Rollover
Contributions Account (the "Prior Plan Accounts").
(c) Vesting. Each Participant with a Prior Plan Account
shall have his nonforfeitable interest in his Prior
Plan Account determined in accordance with Article VI
of the Plan (as if such Prior Plan Account were a
comparable Plan Account).
(d) In-Service Withdrawals. Each Participant with a Prior
Plan Account may make in-service withdrawals in
accordance with Section 7.3 of the Plan (as if such
Prior Plan Account were a comparable Plan Account).
(e) Loans. A Participant may request a loan from his
Prior Plan Account in accordance with Section 7.5 of
this Plan.
(f) Payment of Account Balances. Distribution of a
Participant's Prior Plan Account shall be made in
accordance with the provisions of Article VII.
(g) Directed Investment. Each Participant with a Prior
Plan Account may direct the investment of his Prior
Plan Account in accordance with Article V of the
Plan.
C-2. Use of Terms. All terms and provisions of the Plan shall apply
to this Supplement C, except that where the terms and
provisions of the Plan and this Supplement C conflict, the
terms and provisions of this Supplement C shall govern.
