<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 30, 1998
REGISTRATION NO. 333 -
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------
MONACO COACH CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<CAPTION>
<S><C>
DELAWARE 35-1880244
---------------- ---------------
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
ORGANIZATION)
</TABLE>
91320 INDUSTRIAL WAY
COBURG, OR 97408
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
MONACO COACH CORPORATION
401(k) PLAN AND TRUST
(FULL TITLE OF THE PLAN)
------------------------
KAY L. TOOLSON
CHIEF EXECUTIVE OFFICER
MONACO COACH CORPORATION
91320 INDUSTRIAL WAY
COBURG, OREGON 97408
(541) 686-8011
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
Copies to:
HENRY P. MASSEY, JR., ESQ.
CHRISTINE L. RICHARDSON, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
(650) 493-9300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE PRICE REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value (1) 750,000 shares $23.375(2) $17,531,250(2) $ 5,172
Common Stock interests in the Monaco (3) (3) (3) (3)
Coach Corporation 401(k) Plan and Trust
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Shares to be held by the Monaco Coach Corporation 401(k) Plan and Trust.
(2) Estimated in accordance with Rule 457(h) of the Securities Act of 1933, as
amended, solely for the purpose of computing the amount of the registration
fee based on the prices of the Company's Common Stock as reported on the
Nasdaq National Market on September 23, 1998.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Monaco Coach Corporation
401(k) Plan and Trust described herein.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
MONACO COACH CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Monaco Coach Corporation (the "Registrant") and the Monaco Coach
Corporation 401(k) Plan and Trust (the "Plan") hereby incorporate by reference
into this Registration Statement the following documents and information
heretofore filed with the Securities and Exchange Commission (the "Commission"):
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended January 3, 1998, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
2. The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended April 4, 1998, filed pursuant to Section 13(a) of the Exchange
Act.
3. The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended July 4, 1998, filed pursuant to Section 13(a) of the Exchange Act.
4. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated August 13, 1993, filed
pursuant to Section 12(g) of the Exchange Act, which was declared effective by
the Commission on September 23, 1993, including any amendment or report filed
for the purpose of updating such description.
5. The information contained in the Registrant's Registration
Statement on Form S-8 (file no. 33-76372) filed on or about March 14, 1994.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof, and prior to the
filing of a post-effective amendment indicating that all securities offered have
been sold or deregistering all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be part hereof from the date of
filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Delaware law authorizes corporations to eliminate the personal
liability of directors to corporations and their stockholders for monetary
damages for breach or alleged breach of the directors' "duty of care." While
the relevant statute does not change directors' duty of care, it enables
corporations to limit available relief to equitable remedies such as injunction
or rescission. The statute has no effect on directors' duty of loyalty, acts or
omissions not in good faith or involving intentional misconduct or knowing
violations of law, illegal payment of dividends and approval of any transaction
from which a director derives an improper personal benefit. The Company has
adopted provisions in its Certificate of Incorporation which eliminate the
personal liability of its directors to the Company and its stockholders for
monetary damages for breach or alleged breach of their duty of care. The Bylaws
of the Company provide for indemnification of its directors, officers, employees
and agents to the full extent permitted by the General Corporation Law of the
State of Delaware, the Company's state of incorporation, including those
circumstances in which indemnification would otherwise be discretionary under
Delaware Law. Section 145 of the General Corporation Law of the State of
Delaware provides for indemnification in terms sufficiently broad to indemnify
such individuals, under certain circumstances for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933, as
amended.
2
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
--------- -------------
<S> <C>
4.1 Monaco Coach Corporation 401(k) Plan and Trust.
23.1 Consent of PricewaterhouseCoopers L.L.P., Independent Accountants.
23.2 Consent of Counsel.
24.1 Power of Attorney (see page II-7).
99.1 Internal Revenue Service Determination Letter, dated July 3, 1997.
</TABLE>
3
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement; and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) Filing incorporating subsequent exchange act documents by reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and, is therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by final adjudication of such issue.
4
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Coburg, State of Oregon,
on this 24th day of September, 1998.
MONACO COACH CORPORATION
By: /s/ John W. Nepute
---------------------------------
John W. Nepute
Title: Vice President of Finance and Chief Financial
Officer
5
<PAGE>
SIGNATURES
MONACO COACH CORPORATION 401(k) PLAN AND TRUST. Pursuant to the
requirements of the Securities Act of 1933, as amended, the Administrator of the
Monaco Coach Corporation 401(k) Plan and Trust has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Coburg, State of Oregon, on September 24, 1998.
MONACO COACH CORPORATION
401(k) PLAN AND TRUST
By: /s/ John W. Nepute
-----------------------------
John W. Nepute
Title: As a member of the Monaco Coach Corporation
401(k) Plan and Trust Committee
6
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kay L. Toolson and John W. Nepute jointly
and severally, as his or her attorney-in-fact and agent, each with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully and to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or their or his substitute, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
- -------------------------------------------------------------------------------------------------------
<S> <C> <C>
/s/ Kay L. Toolson
--------------------------- Chairman of the Board and Chief Executive September 23, 1998
Kay L. Toolson Officer (Principal Executive Officer)
/s/ John W. Nepute Vice President of Finance and Chief September 24, 1998
--------------------------- Financial Officer (Principal Financial Officer)
John W. Nepute
/s/ Michael J. Kluger Director September 24, 1998
---------------------------
Michael J. Kluger
/s/ Lee A. Posey Director September 24, 1998
---------------------------
Lee A. Posey
/s/ Carl E. Ring, Jr. Director September 24, 1998
---------------------------
Carl E. Ring, Jr.
7
<PAGE>
/s/ Richard A. Rouse Director September 24, 1998
---------------------------
Richard A. Rouse
</TABLE>
8
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
--------- -------------
<S> <C>
4.1 Monaco Coach Corporation 401(k) Plan and Trust.
23.1 Consent of PricewaterhouseCoopers L.L.P., Independent Accountants
23.2 Consent of Counsel.
24.1 Power of Attorney (see page II-7).
99.1 Internal Revenue Service Determination Letter, dated July 3, 1997.
</TABLE>
9
<PAGE>
EXHIBIT 4.1
MONACO COACH CORPORATION
401(K) PLAN AND TRUST
(AS AMENDED AND RESTATED EFFECTIVE MARCH 4, 1996)
<PAGE>
MONACO COACH CORPORATION
401(K) PLAN AND TRUST
INDEX
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
Eligibility Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
Contributions and Adjustments to Accounts. . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III
Retirement, Disability and Hardship Benefits . . . . . . . . . . . . . . . . . . . 14
ARTICLE IV
Death Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE V
Termination Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VI
Distribution Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII
Plan Administration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE VIII
The Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IX
Fiduciary Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE X
Exclusive Benefit Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE XI
Plan Termination and Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . 33
i
<PAGE>
ARTICLE XII
Other Required Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE XIII
Loans to Participants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE XIV
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE XV
Top Heavy Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE XVI
Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
</TABLE>
ii
<PAGE>
MONACO COACH CORPORATION
401(K) PLAN AND TRUST
AS AMENDED AND RESTATED EFFECTIVE MARCH 4, 1996
RECITALS
A. Effective as of January 1, 1993, Monaco Coach Corporation (the
"Employer") established a defined contribution plan known as the Monaco
Coach Corporation 401(k) Plan and Trust to provide financial benefits to
the Employer's eligible employees upon retirement and to their dependents
and beneficiaries in the event of death or disability.
B. Effective as of March 4, 1996, the Employer acquired certain assets of
Holiday Rambler LLC, Wakarusa, Indiana and amended the Plan to provide,
among other things, credit for prior service with Holiday Rambler LLC.
C. The following instrument is intended to amend and restate the Plan.
D. Key Trust Company of Indiana, N.A., Elkhart, Indiana (the "Trustee") is
the Trustee of the Plan.
E. The Plan, as amended and restated, is designed to meet the requirements
of the relevant provisions of federal law governing defined contribution
retirement plans including, but not limited to, the Internal Revenue Code
of 1986 (Code) and the Employee Retirement Security Act of 1974 (ERISA).
F. The provisions of this Plan shall apply only to an Employee whose
employment is terminated on or after March 4, 1996, which is the date
that this amended Plan becomes operative.
TERMS AND CONDITIONS
ARTICLE I
ELIGIBILITY REQUIREMENTS
1.01 REQUIRED AGE AND SERVICE.
(a) An Employee, unless such Employee irrevocably elects in writing
not to become a Participant pursuant to Section 1.04, shall become
a Participant as of the first day of the calendar month following
the date on which the Employee first completes the following
eligibility requirements:
(1) Attainment of age 18; and
(2) Completion of 500 Hours of Service within a six (6)
consecutive month period of employment with the Employer.
(b) Each Employee who previously was a participant in the Holiday
Rambler Employees' Retirement Plan shall become a Participant as
of the first day that such Employee is credited with an Hour of
Service on or after March 4, 1996.
(c) Each Employee who was a Participant in the Plan prior to March 4,
1996 shall continue to be a Participant until such Employee's
participation is terminated pursuant to the provisions of the
Plan.
1
<PAGE>
(d) For purposes of determining eligibility to participate, periods of
employment with Royale Coach by Monaco, Inc. and Holiday Rambler
LLC shall be considered as periods of employment by the Employer.
1.02 PLAN INFORMATION. The Plan Administrator shall make available to all
Participants relevant information concerning their rights under this
Plan.
1.03 PARTICIPANT COOPERATION. Each Participant agrees to:
(a) look solely to the assets of the Plan for the payment of any
benefits to which such Participant is entitled unless otherwise
provided by law; and
(b) execute and complete such applications or other forms required by
the Trustee.
1.04 ELECTION NOT TO PARTICIPATE. An Employee may make an irrevocable
election not to participate in the Plan upon the Employee's commencement
of employment or upon the Employee's first becoming eligible to
participate in the Plan. The Employee's election not to participate
shall be in writing and shall specify whether the election is full or
partial. A partial election is an election to have a specified
percentage or amount of compensation contributed by the Employer to the
Plan during the duration of the Employee's employment. Nothing in this
Section 1.04 shall be interpreted to preclude alteration in a
Participant's Elective Deferrals pursuant to Section 2.02.
1.05 REHIRED PARTICIPANT. A former Participant whose employment with the
Employer was terminated for any reason and who is rehired by the Employer
shall re-enter the Plan as a Participant as of the first day of any
calendar month following the date on which he is rehired unless he elects
in writing not to become a Participant pursuant to the provisions of
Section 1.04.
1.06 TRANSFERS.
(a) ELIGIBLE TO INELIGIBLE STATUS. If a Participant is transferred
from a class of Employees eligible to participate in the Plan to a
class of Employees ineligible to so participate, such transferred
Participant shall be suspended from participation in the Plan.
Suspension shall mean that such Participant does not share in the
allocation of any Employer Contributions or forfeitures for the
portion of the Plan Year or Plan Years that the Participant is a
member of an ineligible class of Employees. A suspended
Participant shall, however, continue to receive credit for Years
of Vesting Service for service with the Employer as a member of an
ineligible class of Employees. A suspended Participant's Account
shall continue to be adjusted for changes in market value pursuant
to Section 2.06. Distribution of the Participant's Account shall
be made upon the Participant's termination of employment with the
Employer. If the suspended Participant is ever transferred back
to a class of Employees eligible to participate in the Plan, the
Participant shall immediately recommence full participation in the
Plan upon the date of such transfer.
(b) INELIGIBLE TO ELIGIBLE STATUS. If an Employee of the Employer is
transferred from a class of Employees not eligible to participate
in this Plan to a class of Employees eligible to participate in
this Plan, such Employee's period of employment with the Employer
shall be counted for vesting and eligibility purposes. After such
an Employee becomes a Participant, such Employee's rights to an
allocation of Employer Contributions and forfeitures will be
determined under the provisions of Section 2.03 and will be based
only on Compensation earned while in an eligible class of
Employees.
2
<PAGE>
ARTICLE II
CONTRIBUTIONS AND ADJUSTMENTS
TO ACCOUNTS
2.01 KINDS OF CONTRIBUTIONS. The Plan permits the following six (6) kinds of
contributions:
(a) Elective Deferral Contributions as explained in Section 2.02(a);
(b) Qualified Matching Contributions as explained in Section 2.02(e);
(c) Qualified Nonelective Contributions as explained in Section
2.02(e);
(d) Nondiscretionary Employer Matching Contributions as explained in
Section 2.03(a);
(e) Discretionary Employer Matching Contribution as explained in
Section 2.03(b); and
(f) Discretionary Nonmatching Employer Contributions as explained in
Section 2.03(c).
The Trustee shall establish Accounts for each Participant. Each
Participant's Account shall reflect and account for the six (6) different
kinds of contributions which may be made under the Plan. The maintenance
of Accounts is only for accounting purposes and segregation of the assets
of the Plan to such Accounts shall not be required.
2.02 ELECTIVE DEFERRALS.
(a) AMOUNT. Each Plan Year a Participant may choose to enter into a
written salary reduction agreement with the Employer. This
agreement will apply to all payroll periods within the Plan Year.
The terms of the salary reduction agreement shall provide that the
Participant agrees to accept a reduction in a salary from the
Employer equal to any whole percentage of his Compensation for the
Plan Year not less than one percent (1%) nor more than sixteen
percent (16%) of such Compensation. In addition, no Participant
shall be permitted to have any Elective Deferrals made under the
Plan during any calendar year in excess of the dollar limitation
contained in Code Section 402(g) in effect at the beginning of
such calendar year. The Employer shall contribute the
Participant's Elective Deferrals to the Plan for each Plan Year. A
Participant shall at all times have a 100 percent Vested Interest
in his Elective Deferrals, Qualified Nonelective Contributions,
Discretionary Employer Matching Contributions, Nondiscretionary
Employer Matching Contributions, Discretionary Nonmatching
Employer Contributions and Qualified Matching Contributions and
any earnings on them.
(b) DEADLINE FOR ELECTION. Each Participant who decides to enter
into a salary reduction arrangement must sign and file with the
Plan Administrator a written salary reduction agreement on forms
provided by the Plan Administrator. The written agreement must be
filed at least 14 days prior to the change date for which it is to
become effective. A Participant may alter the percentage of his
Elective Deferrals on the change dates of January 1, April 1, July
1, or October 1. Except as provided in Section 2.02(c), the
salary reduction agreement may not otherwise be changed without
the written consent of the Plan Administrator.
(c) DISCONTINUANCE OF ELECTIVE DEFERRALS. A Participant may elect at
any time to discontinue his salary reduction agreement for a Plan
Year by filing a written notice of discontinuance with the Plan
Administrator on forms provided by the Plan Administrator. The
discontinuance shall be effective for the first payroll period
occurring on or after the date that the election is received by
the Plan Administrator. A Participant who has discontinued his
salary reduction agreement for a Plan Year
3
<PAGE>
shall not be permitted to enter into a new salary reduction
agreement until the next monthly open enrollment period.
(d) ADP TESTS. The Plan Administrator or the Employer may amend or
revoke a salary reduction agreement with any Participant at any
time if either the Plan Administrator or the Employer determines
that such revocation or amendment is necessary to prevent a
Participant's annual addition from exceeding permissible limits or
to meet at least one of the following discrimination tests of
Section 401(k) of the Code:
(1) 1.25 TEST. The Actual Deferral Percentage ("ADP") for
Participants who are Highly Compensated Employees for the
Plan Year shall not exceed the ADP for Participants who are
Nonhighly Compensated Employees for the Plan Year
multiplied by 1.25; or
(2) 200% TEST. The ADP for Participants who are Highly
Compensated Employees for the Plan Year shall not exceed
the ADP for Participants who are Nonhighly Compensated
Employees for the Plan Year multiplied by 2, provided that
the ADP for Participants who are Highly Compensated
Employees does not exceed the ADP for Participants who are
Nonhighly Compensated Employees by more than two (2)
percentage points.
(3) SPECIAL RULES:
(A) The ADP for any Participant who is a Highly
Compensated Employee for the Plan Year and who is
eligible to have Elective Deferrals (and Qualified
Nonelective Contributions or Qualified Matching
Contribution, or both, if treated as Elective
Deferrals for purposes of the ADP test) allocated to
his accounts under two or more arrangements
described in Code Section 401(k), that are
maintained by the Employer, shall be determined as
if such Elective Deferrals (and, if applicable, such
Qualified Nonelective Contributions or Qualifying
Matching Contributions, or both) were made under a
single arrangement. If a Highly Compensated Employee
participates in two or more cash or deferred
arrangements that have different Plan Years, all
cash or deferred arrangements ending with or within
the same calendar year shall be treated as a single
arrangement. Notwithstanding the foregoing, certain
plans shall be treated as separate if mandatorily
disaggregated under the regulations under Code
Section 401(k).
(B) If this Plan satisfies the requirements of Code
Sections 401(k), 401(a), or 410(b) only if
aggregated with one or more other plans, or if one
or more other plans satisfy the requirements of such
sections of the Code only if aggregated with this
Plan, then this section shall be applied by
determining the ADP of Employees as if all such
plans were a single plan. Plans may be aggregated
in order to satisfy Code Section 401(k) only if they
have the same Plan Year.
(C) For Plan Years beginning before January 1, 1997, for
purposes of determining the ADP of a Participant who
is a 5-percent owner or one of the ten most highly
paid Highly Compensated Employees, the Elective
Deferrals (and Qualified Nonelective Contributions
or Qualified Matching Contributions, or both, if
treated as Elective Deferrals for purposes of the
ADP test) and Compensation of such Participant shall
include the Elective Deferrals (and, if applicable,
Qualified Nonelective Contributions and Qualified
Matching Contributions, or both) and Compensation
for the Plan Year of Family Members. Family Members
with respect to such Highly Compensated Employee
shall be disregarded as separate employees in
determin-
4
<PAGE>
ing the ADP both for Participants who are Nonhighly
Compensated Employees and for Participants who are
Highly Compensated Employees.
(D) For purposes of determining the ADP test, Elective
Deferrals, Qualified Nonelective Contributions and
Qualified Matching Contributions must be made before
the last day of the twelve-month period immediately
following the Plan Year to which contributions
relate.
(E) The Employer shall maintain records sufficient to
demonstrate satisfaction of the ADP test and the
amount of Qualified Nonelective Contributions or
Qualified Matching Contributions, or both, used in
such test.
(F) The determination and treatment of the ADP amounts
of any Participant shall satisfy such other
requirements as prescribed by the Secretary of the
Treasury.
(G) For purposes of this Section 2.02(d), an Elective
Deferral is considered allocated as of a date
within a plan year only if:
(I) The elective contribution is allocated to the
Employee's Account under the Plan as of a
date within that Plan Year. For purposes of
this rule, an Elective Deferral is considered
allocated as of a date within a Plan year
only if:
(I) The allocation is not contingent upon
the Employee's participation in the
Plan or performance of services on any
date subsequent to the date, and
(II) The elective contribution is actually
paid to the trust no later than the
end of the 12-month period immediately
following the Plan year to which the
contribution relates.
(ii) The elective contribution relates to
compensation that either:
(I) Would have been received by the
Employee in the Plan Year but for the
Employee's election to defer under the
arrangement, or
(II) Is attributable to services performed
by the Employee in the Plan Year and,
but for the Employee's election to
defer, would have been received by the
Employee within two and one-half
(2 1/2) months after the close of the
Plan Year.
(e) QUALIFIED NONELECTIVE AND QUALIFIED MATCHING CONTRIBUTIONS. The
Employer may elect to make Qualified Nonelective Contributions or
Qualified Matching Contributions, or both, to the extent necessary
to meet the ADP test or the ACP Test, or both, pursuant to
regulations under the Code. Subject to such other requirements as
may be prescribed by the Secretary of the Treasury, the amount of
such contributions taken into account as Elective Deferrals shall
be only those amounts necessary to meet the ADP tests set forth in
Section 2.02(d).
(f) EXCESS ELECTIVE DEFERRALS. A Participant may assign to the Plan
any Excess Elective Deferrals made during the Participant's
taxable year by notifying the Plan Administrator on or before the
March 1st following the close of such taxable year of the amount
of the Excess Elective Deferrals to be assigned
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to the Plan. A Participant is deemed to notify the Plan
Administrator of any Excess Elective Deferrals that arise by
taking into account only those Elective Deferrals made to this
Plan and any other plans of the Employer. Excess Elective
Deferrals, plus any income and minus any loss allocable thereto
shall be distributed no later than April 15 to any Participant to
whose Account Excess Elective Deferrals were assigned for the
preceding year and who claims Excess Elective Deferrals for such
taxable year.
Excess Elective Deferrals shall be adjusted for any income or loss
up to the date of distribution. The income or loss allocable to
the Excess Elective Deferrals is the sum of:
(1) income or loss allocable to the Participant's Elective
Deferral account for the taxable year multiplied by a
fraction. The numerator of the fraction is such
Participant's Excess Elective Deferrals for the year and
the denominator is the Participant's account balance
attributable to Elective Deferrals without regard to any
income or loss occurring during such taxable year; and
(2) ten percent (10%) of the amount determined under (1)
multiplied by the number of whole calendar months between
the end of the Participant's taxable year and the date of
distribution, counting the month of distribution if
distribution occurs after the 15th of such month.
(g) EXCESS CONTRIBUTIONS. Excess Contributions, plus any income and
minus any loss allocable to them shall be distributed no later
than the last day of each Plan Year to Participants to whose
accounts such Excess Contributions were allocated for the
preceding Plan Year. If such excess amounts are not distributed
within 2 1/2 months after the last day of the Plan Year in which
such excess amounts arose, a ten percent (10%) excise tax will be
imposed on the Employer maintaining the Plan with respect to such
amounts. Such distributions shall be made to Highly Compensated
Employees on the basis of the respective portions of the Excess
Contributions attributable to each of such Employees. Excess
Contributions of Participants who are subject to the Family Member
aggregation rules of Code Section 414(q)(6) shall be allocated
among the Family Members in proportion to the Elective Deferrals
(and amounts treated as Elective Deferrals) of each Family Member
that is combined to determine the combined ADP. The following
shall also apply:
(1) ANNUAL ADDITION. Excess Contributions (including the
amounts recharacterized) shall be treated as annual
additions under the Plan.
(2) DETERMINATION OF INCOME OR LOSS. Excess contributions
shall be adjusted for any income or loss up to the date of
distribution. The income or loss allocable to Excess
Contributions is the sum of: (I) income or loss allocable
to the Participant's Elective Deferral account (and, if
applicable, the Qualified Nonelective Contribution account
or the Qualified Matching Contributions account or both)
for the Plan Year multiplied by a fraction. The numerator
of such fraction is such Participant's Excess Contributions
for the year and the denominator is the Participant's
account balance attributable to Elective Deferrals (and
Qualified Nonelective Contributions or Qualified Matching
Contributions, or both, if any of such contributions are
included in the ADP test) without regard to any income or
loss occurring during such Plan Year; and (ii) ten percent
(10%) of the amount determined under (I) multiplied by the
number of whole calendar months between the end the Plan
Year and the date of distribution, counting the month of
distribution if distribution occurs after the 15th of such
month.
(3) ACCOUNTING FOR EXCESS CONTRIBUTIONS. Excess Contributions
shall be distributed from the Participant's Elective
Deferral account and Qualified Matching
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Contribution account (if applicable) in proportion to the
Participant's Elective Deferrals and Qualified Matching
Contributions (to the extent used in the ADP test) for the
Plan Year. Excess Contributions shall be distributed from
the Participant's Qualified Nonelective Contribution
account only to the extent that such Excess Contributions
exceed the balance in the Participant's Elective Deferral
account and Qualified Matching Contribution account.
(h) EXCESS AGGREGATE CONTRIBUTIONS:
(1) GENERAL. Notwithstanding any other provisions of this
Plan, Excess Aggregate Contributions, plus any income and
minus any loss allocable thereto, shall be forfeited, if
forfeitable, or if not forfeitable, distributed no later
than the last day of each Plan Year to Participants to
whose accounts such Excess Aggregate Contributions were
allocated for the preceding Plan Year. Excess Aggregate
Contributions of Participants who are subject to the Family
Member aggregation rules of Section 414(q)(6) of the Code
shall be allocated among the Family Members in proportion
to the Matching Contributions (or amounts treated as
Matching Contributions) of each Family Member that is
combined to determine the combined ACP. If such Excess
Aggregate Contributions are distributed more than 21/2
months after the last day of the Plan Year in which such
excess amounts arose, a ten percent (10%) excise tax will
be imposed on the Employer maintaining the plan with
respect to those amounts. Excess Aggregate Contributions
shall be treated as annual additions under the Plan.
(2) DETERMINATION OF INCOME OR LOSS. Excess Aggregate
Contributions shall be adjusted for any income or loss up
to the date of distribution. The income or loss allocable
to Excess Aggregate Contributions is the sum of: (I) income
or loss allocable to the Participant's Matching
Contribution account (if any, and if all amounts therein
are not used in the ADP test) and, if applicable, Qualified
Nonelective Contribution account and Elective Deferral
account for the Plan Year multiplied by a fraction. The
numerator of such fraction is such Participant's Excess
Aggregate Contributions for the year and the denominator is
the Participant's Account balance(s) attributable to
Contribution Percentage Amounts without regard to any
income or loss occurring during such Plan Year; and (ii)
ten percent (10%) of the amount determined under (I)
multiplied by the number of whole calendar months between
the end of the Plan Year and the date of distribution,
counting the month of distribution if distribution occurs
after the 15th of such month.
(3) FORFEITURES OF EXCESS AGGREGATE CONTRIBUTIONS. Forfeitures
of Excess Aggregate Contributions shall be reallocated to
the accounts of Nonhighly Compensated Employees pursuant to
the provisions of Section 2.05.
(4) ACCOUNTING FOR EXCESS AGGREGATE CONTRIBUTIONS. Excess
Aggregate Contributions shall be forfeited, if forfeitable
or distributed on a pro rata basis from Participant's
Matching Contribution account, and Qualified Matching
Contribution account (and, if applicable, the Participant's
Qualified Nonelective Contribution account or Elective
Deferral account, or both).
(i) PERMISSIBLE DISTRIBUTIONS. The Participant's Account consisting
of Elective Deferrals, Qualified Matching Contributions, and
Qualified Nonelective Employer Contributions and earnings on such
amounts may be distributed after the Participant's attainment of
age 59 1/2, death, becoming Disabled or separation from service.
The Participant's Account shall be distributed in accordance with
Articles III, IV and V. Such amounts may also be distributed upon
the occurrence of any of the following events:
7
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(1) PLAN TERMINATION. Termination of the Plan by the Employer
without the establishment of another defined contribution
plan, other than an employee stock ownership plan (as
defined in Section 4975(e) or Section 409 of the Code) or a
simplified employee pension plan as defined in Code Section
408(k).
(2) DISPOSITION OF ASSETS. The disposition by the Employer to
an unrelated corporation of substantially all of the assets
(within the meaning of Code Section 409(d)(2)) used in a
trade or business of the Employer if such corporation
continues to maintain this Plan after the disposition, but
only with respect to employees who continue employment with
the corporation acquiring such assets.
(3) DISPOSITION OF SUBSIDIARY. The disposition by the Employer
to an unrelated entity of such corporation's interest in a
subsidiary (within the meaning of Section 409(d)(3) of the
Code) if such corporation continues to maintain this Plan,
but only with respect to employees who continue employment
with such subsidiary.
(4) HARDSHIP. The hardship of the Participant as described in
Section 3.04.
All distributions that may be made pursuant to one or more of the
foregoing distributable events are subject to the spousal and
participant consent requirements (if applicable) contained in
Sections 411(a)(11) and 417 of the Code. In addition,
distributions after March 31, 1988, that are triggered by
paragraphs (1), (2), or (3) above must be made in a lump sum.
2.03 EMPLOYER CONTRIBUTIONS.
For each Plan Year the Employer shall make the Employer Contributions
described in Section 2.03(a) and may make the Employer Contributions
described in Section 2.03(b):
(a) MATCHING EMPLOYER CONTRIBUTION.
(1) GENERAL. For each Plan Year during which the Employer has
Net Profit, the Employer shall make a Matching Employer
Contribution on or before the time for filing the
Employer's tax return for such Plan Year. The amount of
any such Matching Employer Contribution shall be equal to
twenty-five percent (25%) of the first four percent (4%) of
Compensation deferred by Qualifying Participants who made
Elective Deferrals under the salary reduction agreements
described in Section 2.02 for the Plan Year. The amount
shall be calculated before contributions to the Plan and
prior to deductions for taxes on income. Calculation shall
be done in accordance with generally accepted accounting
principles. Any Matching Employer Contributions must meet
the nondiscrimination requirements of Code Section
401(a)(4) and the Average Contribution Percentage (ACP)
test of Code Section 401(m). Any such Matching Employer
Contributions shall be vested at all times.
The ACP for Participants who are Highly Compensated
Employees for each Plan Year and the ACP for Participants
who are Non-Highly Compensated Employees for the same Plan
Year must satisfy one of the following tests:
(A) The ACP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP
for Participants who are Non-highly Compensated
Employees for the same Plan Year multiplied by 1.25;
or
(B) The ACP for Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the ACP
for Participants who are Non-highly Compensated
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<PAGE>
Employees for the same Plan Year multiplied by two
(2), provided that the ACP for Participants who are
Highly Compensated Employees does not exceed the ACP
for Participants who are Non-highly compensated
Employees by more than two (2) percentage points.
(2) SPECIAL RULES. The following special rules shall apply:
(A) If the sum of the ADP and ACP of those Highly
Compensated Employees subject to either or both
tests under this Plan exceeds the Aggregate Limit,
then the ACP of those Highly Compensated Employees
will be reduced (beginning with such Highly
Compensated Employee whose ACP is the highest) so
that the limit is not exceeded. The amount by which
each Highly Compensated Employee's Contribution
Percentage Amounts is reduced shall be treated as an
Excess Aggregate Contribution. The ADP and ACP of
the Highly Compensated Employees are determined
after any corrections required to meet the ADP and
ACP tests. Multiple use does not occur if both the
ADP and ACP of the Highly Compensated Employees does
not exceed 1.25 multiplied by the ADP and ACP of the
Non-highly Compensated Employees.
(B) For purposes of this section, the Contribution
Percentage for any Participant who is a Highly
Compensated Employee who is eligible to have
Contribution Percentage Amounts allocated to his
account under two or more plans described in Section
401(a) of the Code, or arrangements described in
Section 401(k) of the Code that are maintained by
the Employer, shall be determined as if the total of
such Contribution Percentage Amounts was made under
each plan. If a Highly Compensated Employee
participates in two or more cash or deferred
arrangements that have different plan years, all
cash or deferred arrangements ending with or within
the same calendar year shall be treated as a single
arrangement. Notwithstanding the foregoing, certain
plans shall be treated as separate if mandatorily
disaggregated under regulations under Code Section
401(k).
(C) If this Plan satisfies the requirements of Sections
401(m), 401(a)(4) or 410(b) of the Code only if
aggregated with one or more other plans, or if one
or more other plans satisfy the requirements of such
sections of the Code only if aggregated with this
Plan, then this section shall be applied by
determining the Contribution Percentage of Employees
as if all such plans were a single plan. Plans may
be aggregated in order to satisfy Section 401(m) of
the Code only if they have the same Plan Year.
(D) For purposes of determining the Contribution
percentage of a Participant who is a five-percent
owner or one of the ten most highly-paid Highly
Compensated Employees, the Contribution Percentage
Amounts and Compensation of such Participant shall
include the Contribution Percentage Amounts and
Compensation for the Plan Year of Family Members.
Family Members, with respect to Highly Compensated
Employees, shall be disregarded as separate
employees in determining the Contribution Percentage
both for Participants who are Non-highly Compensated
Employees and for Participants who are Highly
Compensated Employees.
(E) For purposes of determining the Contribution
Percentage test, Matching Contributions and
Qualified Nonelective Contributions will be
considered made for a
9
<PAGE>
Plan Year if made no later than the end of a
twelve-month period beginning on the day after the
close of the Plan Year.
(F) The Employer shall maintain records sufficient to
demonstrate satisfaction of the ACP test and the
amount of Qualified Nonelective Contributions or
Qualified matching Contributions, or both, used in
such test.
(G) The determination and treatment of the Contribution
Percentage of any Participant shall satisfy such
other requirements as may be prescribed by the
Secretary of the Treasury.
(b) DISCRETIONARY MATCHING CONTRIBUTIONS.
(1) In addition to the Matching Employer Contribution for a
Plan Year set forth in Section 2.02(a), for each Plan Year
in which the Employer has Net Profit, the Employer, in its
sole discretion, may make a discretionary Matching
Contribution by increasing the percentage of its Matching
Employer Contribution on the first four percent (4%) of
Compensation deferred by Qualifying Participants who made
Elective Deferrals under the salary reduction agreements
described in Section 2.02 for the Plan Year.
(2) For each Plan Year in which the Employer has negative
retained earnings, the Employer may, in its sole
discretion, make a Matching Employer Contribution to
Qualifying Participants who made Elective Deferrals under
the salary reduction agreements described in Section 2.02
for the Plan Year in such amounts as the Employer shall
determine.
(c) DISCRETIONARY NONMATCHING EMPLOYER CONTRIBUTIONS.
The Employer at its sole discretion for each Plan Year may
contribute an amount to be allocated to all Participants in the
Plan whether or not such Participants have entered into salary
reduction arrangements for the Plan Year. Such a Discretionary
Employer Contribution shall be allocated to all Participants in
the Plan who are Qualifying Participants on the last day of the
Plan Year. The Trustee shall allocate to the Account of each
Qualifying Participant from any such Employer Contribution and any
forfeitures for the Plan in the ratio that each such Participant's
total Compensation for the Plan Year bears to all such
Participants' total compensation for that Year.
(d) SPECIAL ALLOCATION RULES.
(1) For allocation purposes, a Qualifying Participant is a
Participant who:
(A) is an Employee of the Employer on the last day of
the Plan Year,
(B) has died during the Plan Year,
(C) became Disabled during the Plan Year,
(D) terminated employment with the Employer during the
Plan Year after attainment of Normal Retirement Age,
or
(E) terminated employment with the Employer during the
Plan Year due to the sale by the Employer to an
entity that is not an Affiliated Employer of a
subsidiary or
10
<PAGE>
unincorporated division whose employees were
Participants in the Plan prior to such sale.
(2) The provisions of this paragraph shall be effective for a
Plan Year if, but for the application of this paragraph,
the Plan would fail to satisfy the coverage rules of either
Code Section 401(a)(26) or Code Section 410(b)(1) for the
Plan Year. In such event, the requirements that a
Participant must be an be employed by the Employer on the
last day of the Plan Year in order to receive an allocation
shall be disregarded by allocating Employer Contributions
to Participants who would otherwise be excluded on the
following basis:
(A) First, an allocation of the Employer Contributions
shall be made to the Accounts of certain
Participants who were not Highly Compensated
Employees and who were employed by the Employer on
the last day of the Plan Year. The allocation shall
be made to such Participants one at a time in order,
according to the number of Hours of Service credited
to such Participants during the Plan Year, beginning
with the Participant credited with the largest
number of Hours of Service for the Plan Year. The
allocation shall continue until the coverage rules
are satisfied or until all such Participants have
received an allocation, whichever occurs first.
(B) If the Plan fails to satisfy the coverage rules for
a Plan Year after the application of the preceding
subparagraph, then an allocation of the Employer
Contributions shall be made to the Accounts of
certain Participants who were Employees during the
Plan Year but who were not employed by the Employer
on the last day of the Plan Year. The allocation
shall be made one at a time in the same order and
manner described in the preceding subparagraph.
(3) A Participant whose employment is terminated with the
Employer shall be considered to have automatically elected
to discontinue his salary reduction agreement as of the
date that the termination becomes effective. Compensation
paid by the Employer to such Participant after such
effective date of termination shall not be subject to any
salary reduction.
(e) MAXIMUM AMOUNT OF EMPLOYER CONTRIBUTIONS. For purposes of
determining the maximum amount which may be contributed for a Plan
Year, both the Elective Deferrals permitted by Section 2.02(a) and
the Employer Contributions permitted by Section 2.02 and this
Section 2.03 shall be considered together. In no event, however,
shall the Employer contribute more than the maximum amount for
such Plan Year which may be contributed on a deductible basis for
federal income tax purposes including any deductible amounts which
may be carried forward or backward under the applicable provisions
of the Code. Contributions for each Plan Year shall be paid not
later than the latest permissible date for the making of such
contributions on a deductible basis for such Plan Year for federal
income and excess profits tax purposes as may be prescribed from
time to time by the applicable provisions of the Code. Except as
otherwise specified, the Employer shall make all contributions to
the Plan without regard to current or accumulated earnings and
profits for the taxable year or years ending with or within such
Plan Year. Notwithstanding the foregoing, the Plan shall continue
to be designed to qualify as a profit sharing plan for purposes of
Code Sections 401(a), 402, 412 and 417. The Employer's
determination of its contributions shall be binding on all
Participants, the Trustee and the Administrator. The Trustee
shall have no right or duty to inquire into the amount of the
Employer Contributions or the method used in determining the
amount of such contribution but shall be accountable only for the
funds actually received by it.
2.04 EMPLOYEE CONTRIBUTIONS. No voluntary contributions by Participants shall
be permitted other than Elective Deferrals.
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<PAGE>
2.05 FORFEITURES. Any forfeitures allocable for a Plan Year shall be used to
satisfy the amount of any Employer Matching Contributions for such Plan
Year or for future Plan Years.
2.06 ADJUSTMENT OF ACCOUNTS.
(a) GENERAL. As of the end of each Plan Year, or more frequently as
determined by the Plan Administrator, the Trustee shall adjust the
net credit balances in the Accounts of Participants in the Trust,
upward or downwards pro rata, so that the aggregate of such net
credit balances will equal the net worth of the trust fund as of
the valuation date, using fair market values as determined by the
Trustee and reported to the Plan Administrator, after such net
worth has been reduced by any expenses, withdrawals, distributions
and transfers chargeable to the Trust which have been incurred but
not yet paid. All determinations made by the Trustee with respect
to fair market values and net worth shall be made in accordance
with generally accepted principles of trust accounting and such
determinations when so made by the Trustee and any determinations
by the Plan Administrator based on them shall be conclusive and
binding upon all persons having an interest under the Plan. If
fair market value is not available for certain assets, the Trustee
shall use fair appraised value or such other valuation which, in
the opinion of the Trustee, best reflects the value of such Plan
assets.
(b) SPECIAL VALUATIONS.
(1) If any of the assets of the Plan are invested with an
insurance company or other investment manager, such
investment manager shall render an accounting with respect
to such Plan assets. Such accounting shall be delivered to
the Trustee and the Plan Administrator as soon as feasible
after the valuation date or dates established by the Plan
Administrator. The accounting shall include complete
information about all amounts for which such investment
manager is responsible.
(2) If the Plan Participants are directing the investment of
all or a portion of their Accounts, the Trustee shall
allocate earnings and losses for the directed portion of
each Participant's Account based on those investments
selected by each Plan Participant.
2.07 LIMITATIONS ON ANNUAL ADDITION TO PLAN ACCOUNT. The following rules
shall apply concerning the maximum amount which may be allocated to a
Participant under the Plan:
(a) For purposes of the plan, "Annual Addition" shall mean the sum of
the following amounts allocated to a Participant's Account for the
Limitation Year:
(1) Employer contributions,
(2) Employee contributions,
(3) Forfeitures, and
(4) Amounts allocated, after March 31, 1984, to an individual
medical account, as defined in Section 415(l)(2) of the
Code, which is part of a pension or annuity plan maintained
by the Employer and amounts derived from contributions paid
or accrued after December 31, 1985, in taxable years ending
after such date, which are attributable to post-retirement
medical benefits, allocated to the separate account of a
key employee, as defined in Section 419A(d)(3) of the Code,
under a welfare benefit fund, as defined in Section 419(e)
of the Code, maintained by the Employer.
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<PAGE>
(b) The maximum Annual Addition that may be contributed or allocated
to a Participant's account under the Plan for any Limitation Year
shall not exceed the lesser of:
(1) the Defined Contribution Dollar Limitation, or
(2) 25 percent of the Participant's compensation, within the
meaning of Section 415(c)(3) of the Code for the Limitation
Year.
(c) The compensation limitation referred to in Section 2.07(b)(ii)
shall not apply to any contribution for medical benefits (within
the meaning of Code Section 401(h) or Section 419A(f)(2)) after
separation from service which is otherwise treated as an Annual
Addition under Section 415(l)(1) or Section 419A(d)(2) of the
Code.
(d) For purposes of Section 2.07(b), "Defined Contribution Dollar
Limitation" shall mean $30,000 or, if greater, one-fourth (1/4) of
the defined benefit dollar limitation set forth in Code Section
415(b)(1) as in effect for the Limitation Year.
(e) If, due to reasonable error in estimating a Participant's annual
compensation, or due to the allocation of forfeitures or under
such other limited facts and circumstances which the Commissioner
of Internal Revenue finds justify the availability of relief, any
annual addition in excess of the limitations set forth in this
Section 2.07 will be disposed of as follows:
(1) Any Elective Deferrals made by the Participant will be
returned to the Participant as permitted by Treas. Reg.
Section 1.415-6(b)(6)(iv).
(2) If after the application of paragraph (1) an excess amount
still exists and the Participant is covered by the Plan at
the end of the Limitation Year, the excess amount in the
Participant's Account will be used to reduce Employer
Contributions (including any allocation of forfeitures) for
such Participant in the next Limitation Year, and each
succeeding Limitation Year if necessary.
(3) If after the application of paragraph (2) an excess amount
still exists and the Participant is not covered by the Plan
at the end of the Limitation Year, the excess amount will
be held unallocated in a suspense account. The suspense
account will be applied to reduce future Employer
Contributions for all remaining Participants in the next
Limitation Year, and each succeeding Limitation Year if
necessary.
(4) If a suspense account is in existence at any time during a
Limitation Year pursuant to this Section, it will not
participate in the allocation of the Plan's investment
gains and losses. If a suspense account is in existence at
any time during a particular Limitation Year, all amounts
in the suspense account must be allocated and reallocated
to Participants' Accounts before any Employer Contributions
may be made to the Plan for the Limitation Year. Excess
amounts may not be distributed to Participants or former
Participants.
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ARTICLE III
RETIREMENT, DISABILITY AND HARDSHIP BENEFITS
3.01 RETIREMENT AND DISABILITY DISTRIBUTIONS. A Participant shall be entitled
to distribution of his Account upon the occurrence of any one of the
following events:
(a) Retirement from the service of the Employer after attainment of
Normal Retirement Age.
(b) Retirement from the service of the Employer as a result of
becoming Disabled.
The amount of the Account to be distributed to the Participant shall be
determined as of the day of the Plan Year immediately preceding the date
the distribution is scheduled to take place. The amount of the
distribution shall not be entitled to any share of the earnings of the
Plan or interest from the period between such valuation date and the date
of distribution. However, the amount of the distribution shall include
any Elective Deferrals made by the Participant between the valuation date
and the date of distribution. A Participant's right to his Account shall
be nonforfeitable within the meaning of Code Section 411(a)(1) upon
either attaining Normal Retirement Age while in the service of the
Employer or becoming Disabled while in the service of the Employer.
3.02 FORM OF BENEFIT PAYMENT. The Account shall be paid to the Participant in
one of the following forms as the Participant shall select:
(a) A single sum, or
(b) Equal monthly, quarterly, semi-annual, or annual installments from
the Plan.
(c) Direct transfer of the Participant's Account by the Trustee to the
trustee of another retirement plan which is qualified to receive
such a transfer under the relevant provisions of the Code or a
Direct Rollover pursuant to the provisions of Article VI.
If the Participant's Account has investments acquired by the Plan
pursuant to the Participant's exercise of a power of self-direction, the
distribution to the Participant of his vested Account shall include all
such investments or the net proceeds of such investments.
3.03 COMMENCEMENT OF BENEFITS.
(a) Unless the Participant otherwise elects by submitting to the Plan
Administrator a written statement, signed by the Participant which
describes the benefit and a later date on which the payment of
such benefits shall commence, payment of benefits shall begin as
soon as administratively possible after the Participant becomes
entitled to distribution of benefits under Section 3.01 and no
later than the sixtieth (60th) day after the close of the Plan
Year in which the latest of the following events occurs:
(1) The attainment by the Participant of age 65, or if earlier,
the Normal Retirement Age,
(2) The tenth (10th) anniversary of the date on which the
Participant commenced participation in the Plan,
(3) The termination of the Participant's service with the
Employer, or
(4) The date specified in the Participant's written election
described above.
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(b) There are four exceptions to the rule set forth in Section
3.30(a):
(1) If the Plan Administrator has been unable to locate the
Participant after making reasonable efforts to do so, to
the extent not prohibited by the Code or ERISA and valid
regulations thereunder, the beginning of such distribution
may be delayed until 60 days after such Participant has
been located. Such distribution will be retroactive to 60
days after the end of the Plan Year in which retirement or
disability occurs. No interest or allocation of earnings
shall be due to a Participant for the period commencing on
the valuation date described in Section 3.01 and ending on
the date the distribution is made.
(2) If a Participant has not been located within seven (7)
years from the date that such Participant's benefits under
this Plan first become payable, the Participant's Account
shall be deemed abandoned and shall be used to reduce
future Employer Contributions to the Plan. If at any time
a Participant whose Account was deemed abandoned and so
used is located, the Employer shall restore the amount of
such Account to the Trustee for distribution to the
Participant. The Participant shall not be entitled to any
interest or allocation of earnings on such amount from the
date of abandonment to the date of distribution.
(3) The Participant may elect to receive a distribution of the
Participant's Account at any time after the Participant's
termination of employment with the Employer. If the value
of a Participant's vested Account balance derived from
Employer and Employee Contributions either exceeds
$3,500.00 as of the day of the Plan Year on which the
Participant's service terminated or at the time of any
prior distribution exceeded $3,500.00, and the Account
balance is immediately distributable, the Participant must
consent to any distribution of such Account balance. An
Account Balance is immediately distributable if any part of
the Account Balance could be distributed to the Participant
before the Participant attains or would have attained the
later of Normal Retirement Age or age 62. The consent of
the Participant shall be obtained in writing within the
90-day period ending on the annuity starting date. The
annuity starting date is the first day of the first period
for which an amount is paid as an annuity or in any other
form. The Plan Administrator shall notify the Participant
(or surviving spouse) of the right to defer any
distribution until the Participant's Account balance is no
longer immediately distributable. Such notification shall
include a general description of the material features, and
an explanation of the relative values of, the optional
forms of benefit available under the Plan in a manner that
would satisfy the notice requirements of Code Section
417(a)(3), and shall be provided no less than thirty (30)
days and no more than ninety (90) days prior to the annuity
starting date.
(4) No Participant will be permitted to defer the commencement
of benefits beyond the April 1st in the calendar year
immediately following the calendar year in which the
Participant attains age seventy and one-half (70 1/2).
3.04 HARDSHIP WITHDRAWAL. Distributions of Elective Deferrals made by the
Participant (and any earnings credited to a Participant's Account as of
the end of the last Plan Year ending before July 1, 1989) may be made on
account of financial hardship if the distribution is necessary in light
of the immediate and heavy financial needs of the Participant. Such a
distribution shall not exceed the amount required to meet the immediate
financial need created by the hardship and may not be made to the extent
that other financial resources of the Participant are reasonably
available.
(a) A distribution will be deemed to be made on account of an
immediate and heavy financial need of the Participant only if the
distribution is on account of:
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(1) Expenses incurred or necessary for medical care, described
by Code Section 213(d), of the Participant, the
Participant's spouse, or any dependents of the Participant
(as defined in Code Section 152);
(2) The need to prevent the eviction of the Participant from
his principal residence or foreclosure on the mortgage of
the Participant's principal residence;
(3) Payment of tuition for the next twelve (12) months of
post-secondary education for the Participant, the
Participant's spouse, children, or dependents; or
(4) Purchase (excluding mortgage payments) of a principal
residence for the Participant.
(b) A distribution will be treated as necessary to satisfy an
immediate and heavy financial need of the Participant if all of
the following requirements are satisfied:
(1) The distribution is not in excess of the amount of the
immediate and financial need of the Participant (including
amounts necessary to pay any federal, state or local income
tax or penalties reasonably anticipated to result from the
distribution;
(2) The Employee has obtained all distributions, other than
hardship distributions, and all nontaxable loans currently
available under all plans maintained by the Employer;
(3) The Participant's Elective Deferral contributions will be
suspended for twelve (12) months after receipt of the
hardship distribution and may resume as of the first day of
the calendar month immediately following the expiration of
such twelve (12) month suspension period;
(4) The Participant may not make Elective Deferrals for the
Participant's taxable year immediately following the
taxable year of the hardship distribution in excess of the
applicable limit under Code Section 402(g) for such next
taxable year less the amount of such Participant's Elective
Deferrals for the taxable year of the hardship
distribution; and
(5) The Participant shall not be eligible to receive a Matching
Employer Contribution for the Plan Year during which the
Participant receives a hardship distribution.
(c) The determination of existence of financial hardship, and the
amount required to be distributed to meet the need created by the
hardship, shall be made by a person or persons designated by the
Plan Administrator.
(d) All determinations regarding financial hardship shall be made in
accordance with written procedures that are established by the
Plan Administrator and applied in a uniform and nondiscriminatory
manner. Such written procedures shall specify the requirements
for requesting and receiving distributions on account of hardship,
including what forms must be submitted and to whom.
(e) Processing of applications and distributions of amounts under this
Section, on account of a bona fide financial hardship, must be
made as soon as administratively feasible.
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ARTICLE IV
DEATH BENEFITS
4.01 AMOUNT OF DEATH BENEFIT. The Beneficiary of a Participant who dies prior
to receiving benefits under the Plan shall be entitled to receive death
benefits as provided in this Article IV. A Beneficiary shall be 100%
vested in a deceased Participant's Account if the Participant dies while
in the service of the Employer, or if a retired or disabled Participant
dies after termination of employment but before the commencement of any
retirement or disability benefits under this Plan. A Beneficiary of a
Section 5.01 terminated Participant who dies after termination of
employment (but prior to payment of benefits) shall be vested in the
Account of such Participant in the same percentage that such deceased
Participant was vested pursuant to the provisions of Section 5.01 of the
Plan.
4.02 PAYMENT OF DEATH BENEFIT. The amount of the Account payable to a
Beneficiary under this Article IV shall be determined as of the day of
the Plan Year immediately preceding the date the distribution is
scheduled to take place. The amount of the distribution shall not be
entitled to any share of the earnings of the Plan or interest from the
period between such valuation date and the date of distribution.
However, the amount of the distribution shall include any Elective
Deferrals made by the Participant between the valuation date and the date
of distribution. The time for payment of benefits to the Beneficiary of
a deceased Participant shall be governed by the provisions of Article VI.
The form of such benefit shall be a lump sum distribution unless the
Beneficiary is the Participant's surviving spouse. If the Beneficiary is
the Participant's surviving spouse, such Beneficiary may elect either of
the options set forth in Section 3.02. If the Participant's Account has
investments acquired by the Plan pursuant to the Participant's exercise
of a power of self-direction, the distribution to the Beneficiary of the
Participant's vested Account shall include all such investments or the
net proceeds of such investments.
4.03 BENEFICIARY DESIGNATIONS. The Participant's vested Account will
automatically be paid to the Participant's surviving spouse. However, if
there is no surviving spouse or if the surviving spouse has already
consented to another Beneficiary in a writing witnessed by a plan
representative or notary public, then the Participant's vested Account
will be paid to the Participant's designated Beneficiary. The term
"surviving spouse" includes the former spouse of a Participant to the
extent provided under a qualified domestic relations order as described
in Section 414(p) of the Code. Subject to the spousal consent provisions
of this Section 4.03, each Participant shall have the right to designate
and change his Beneficiary or contingent Beneficiary. Such right shall
be exercised by the Participant in writing on forms provided by the Plan
Administrator. If there is no surviving spouse and the Participant has
not made an effective Beneficiary designation, then the Participant's
surviving children, both natural and adopted, shall be deemed to be equal
beneficiaries. If there are no surviving children, the estate of the
Participant shall be the Beneficiary.
ARTICLE V
TERMINATION BENEFITS
5.01 VESTING SCHEDULE. Each Participant shall have a 100% vested interest in
such Participant's Account at all times.
5.02 DETERMINATION OF VESTED BENEFIT. The amount of the Account payable to a
Participant under this Article IV shall be determined as of the day of
the Plan Year immediately preceding the date the distribution is
scheduled to take place. The amount of the distribution shall not be
entitled to any share of the earnings of the Plan or interest from the
period between such valuation date and the date of distribution.
However, the amount of the distribution shall include any Elective
Deferrals made by the Participant between the valuation date and the date
of distribution. The value of the Account of such a terminated
Participant shall be continue to be
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maintained and adjusted pursuant to Section 2.06 until the vested portion
of such Account is paid to the Participant under the provisions of
Section 5.03.
5.03 PAYMENT OF VESTED INTEREST.
(a) GENERAL RULE. Subject to the consent requirements of Section
5.03(c), a Participant's vested Account shall be paid to the
Participant no later than one hundred twenty (120) days after the
end of the Plan Year in which the Participant's termination of
employment takes place. If the Plan Administrator has been unable
to locate the Participant after making reasonable efforts to do
so, to the extent not prohibited by the Code or ERISA and valid
regulations thereunder, the beginning of such distribution may be
delayed until 60 days after such Participant has been located. If
a Participant does not consent to a distribution, the Participant
shall have a right to elect to receive a distribution in any
subsequent Plan Year within one hundred twenty (120) days after
the end of such Plan Year. The Participant may elect to receive
such distribution in any of the ways specified in Section 3.02.
(b) CASH-OUT OF SMALL ACCOUNTS. If a Participant terminates service,
and the value of the Participant's vested Account derived from
Employer and Employee Contributions is not greater than $3,500 as
of the day of the Plan Year on which the Participant's service
terminated, the Participant will receive a distribution of the
value of the entire vested portion of such Account in a lump sum
and the nonvested portion will be treated as a forfeiture. Such
distribution will be made no later than one hundred twenty (120)
days after the end of the Plan Year in which the Participant's
termination of service took place. The amount of the Account to
be distributed to the Participant shall be determined as of the
day of the Plan Year immediately preceding the date the
distribution is scheduled to take place. The amount of the
distribution shall not be entitled to any share of the earnings of
the Plan or interest from the period between the valuation date
and the date of distribution.
(c) CONSENT FOR CERTAIN DISTRIBUTIONS. If the value of a
Participant's vested Account balance derived from Employer and
Employee Contributions either exceeds $3,500.00 as of the day of
the Plan Year on which the Participant's service terminated or at
the time of any prior distribution exceeded $3,500.00, and the
Account balance is immediately distributable, the Participant must
consent to any distribution of such Account balance. An Account
balance is immediately distributable if any part of the Account
Balance could be distributed to the Participant before the
Participant attains or would have attained the later of Normal
Retirement Age or age 62. The consent of the Participant shall be
obtained in writing within the 90-day period ending on the annuity
starting date. The annuity starting date is the first day of the
first period for which an amount is paid as an annuity or in any
other form. The Plan Administrator shall notify the Participant
(or surviving spouse) of the right to defer any distribution until
the Participant's Account balance is no longer immediately
distributable. Such notification shall include a general
description of the material features, and an explanation of the
relative values of, the optional forms of benefit available under
the Plan in a manner that would satisfy the notice requirements of
Code Section 417(a)(3), and shall be provided no less than thirty
(30) days and no more than ninety (90) days prior to the annuity
starting date.
(d) EXCEPTIONS TO CONSENT REQUIREMENTS. Notwithstanding the
provisions of Section 5.03(c), the consent of the Participant
shall not be required to the extent that a distribution is a
cash-out described in Section 5.03(b) or is required to satisfy
Section 401(a)(9) or Section 415 of the Code. In addition, upon
termination of this Plan if the Plan does not offer an annuity
option (purchased from a commercial provider), the Participant's
Account Balance may, without the Participant's consent, be
distributed to the Participant or transferred to another defined
contribution plan (other than an employee stock ownership plan as
defined in Section 4975(e)(7) of the Code) within the same
controlled group.
(e) EXCLUSION FOR CERTAIN EMPLOYEE CONTRIBUTIONS. For purposes of
determining the applicability of the foregoing consent
requirements to distributions made before the first day of the
first Plan Year begin-
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ning after December 31, 1988, the Participant's vested Account
balance shall not include amounts attributable to accumulated
deductible Employee Contributions within the meaning of Code
Section of the Code.
(f) PARTICIPANT-DIRECTED INVESTMENTS. If the Participant's Account
has investments acquired by the Plan pursuant to the Participant's
exercise of a power of s e lf-direction, the distribution to the
Participant of his vested Account shall include all such
investments or the net proceeds of such investments.
ARTICLE VI
DISTRIBUTION REQUIREMENTS
6.01 GENERAL RULES.
(a) The requirements of this Article shall apply to any distribution
of a Participant's interest and will take precedence over any
inconsistent provisions of this Plan. Unless otherwise specified,
the provisions of this Article apply to calendar years beginning
after December 31, 1984.
(b) All distributions required under this Article shall be determined
and made in accordance with the proposed regulations under Code
Section 401(a)(9), including the minimum distribution incidental
benefit requirement of Section 1.401(a)(9)-2 of the proposed
regulations.
6.02 REQUIRED BEGINNING DATE. The entire interest of a participant must be
distributed or begin to be distributed no later than the Participant's
required beginning date.
6.03 LIMITS ON DISTRIBUTION PERIODS. As of the first distribution calendar
year, distributions, if not made in a single sum, may only be made over
one of the following periods
(a) the life of the Participant,
(b) the life of a Participant and a designated Beneficiary,
(c) a period certain not extending beyond the life expectancy of the
Participant, or
(d) a period certain not extending beyond the joint life and last
survivor expectancy of the Participant and a designated
Beneficiary.
No other forms of distribution such as an annuity shall be permitted.
6.04 DETERMINATION OF ANNUAL DISTRIBUTION AMOUNT. If the Participant's
interest is to be distributed in other than a single sum, the following
minimum distribution rules shall apply on or after the required beginning
date:
(a) If a Participant's vested Account balance is to be distributed
over (1) a period not extending beyond the life expectancy of the
Participant or the joint life and last survivor expectancy of the
Participant and the Participant's designated Beneficiary or (2) a
period not extending beyond the life expectancy of the designated
Beneficiary, the amount required to be distributed for each
calendar year, beginning with distributions for the first
distribution calendar year, must at least equal the quotient
obtained by dividing the Participant's benefit by the applicable
life expectancy.
(b) The amount to be distributed each year, beginning with
distributions for the first distribution calendar year shall not
be less than the quotient obtained by dividing the Participant's
benefit by the lesser of
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(1) the applicable life expectancy or (2) if the Participant's
spouse is not the designated Beneficiary, the applicable divisor
determined form the table set forth in Q&A-4 of Section
1.401(a)(9)-2 of the Proposed Regulations. Distributions after
the death of the Participant shall be distributed using the
applicable life expectancy in Section 6.04(a) as the relevant
divisor without regard to Proposed Regulation Section
1.401(a)(9)-2.
(c) The minimum distribution required for the Participant's first
distribution calendar year must be made on or before the
Participant's required beginning date. The minimum distribution
for other calendar years, including the minimum distribution for
the distribution calendar year in which the Participant's required
beginning date occurs, must be made on or before December 31 of
the distribution calendar year.
6.05 DEATH DISTRIBUTION PROVISIONS.
(a) DISTRIBUTION BEGINNING BEFORE DEATH. If the Participant dies
after distribution of his interest has begun, the remaining
portion of such interest will continue to be distributed at least
as rapidly as under the method of distribution being used prior to
the Participant's death.
(b) DISTRIBUTION BEGINNING AFTER DEATH. If the Participant dies
before distribution of his interest begins, distribution of the
Participant's entire interest shall be completed by December 31 of
the calendar year containing the fifth (5th) anniversary of the
Participant's death except to the extent that an election is made
to receive distributions in accordance with (1) or (2) below:
(1) If any portion of the Participant's interest is payable to
a designated Beneficiary, distributions may be made over
the life or over a period certain not greater than the life
expectancy of the designated beneficiary commencing on or
before December 31 of the calendar year immediately
following the calendar year in which the Participant died;
or
(2) If the designated Beneficiary is the Participant's
Surviving Spouse, the date distributions are required to
begin shall not be earlier than the later of (1) December
31 of the calendar year immediately following the calendar
year in which the Participant died and (2) December 31 of
the calendar year in which the Participant would have
attained age 70 1/2.
If the Participant has not made an election pursuant to
this Section 6.05 by the time of his death, the
Participant's designated beneficiary must elect the method
of distribution no later than the earlier of (1) December
31 of the calendar year in which distributions would be
required to begin under this Section, or (2) December 31 of
the calendar year which contains the fifth (5th)
anniversary of the date of death of the Participant. If
the Participant has no designated Beneficiary, or if the
designated Beneficiary does not elect a method of
distribution, distribution of the Participant's entire
interest must be completed by December 31 of the calendar
year containing the fifth (5th) anniversary of the
Participant's death.
(c) For purposes of Section 6.05(b) above, if the Surviving Spouse
dies after the Participant, but before payments to such spouse
begin, the provisions of Section 6.05(b) shall be applied as if
the Surviving Spouse were the Participant.
(d) For purposes of this Section 6.05, distribution of a Participant's
interest is considered to begin on the Participant's required
beginning date (or, if Section 6.05(c) above is applicable, the
date distribution is required to begin to the Surviving Spouse
pursuant to Section 6.05(b) above).
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6.06 DEFINITIONS.
(a) APPLICABLE LIFE EXPECTANCY. The life expectancy (or joint life
and last survivor expectancy) calculated using the attained age of
the Participant (or designated Beneficiary) as of the
Participant's (or designated Beneficiary's) birthday in the
applicable calendar year reduced by one for each calendar year
which has elapsed since the date life expectancy was first
calculated. If life expectancy is being recalculated, the
applicable life expectancy shall be the life expectancy as so
recalculated. The applicable calendar year shall be the first
distribution calendar year, and if life expectancy is being
recalculated such succeeding calendar year.
(b) DESIGNATED BENEFICIARY. The individual who is designated as the
beneficiary under the Plan in accordance with Code Section
401(a)(9) and the proposed regulations under such Code Section.
(c) DISTRIBUTION CALENDAR YEAR. A calendar year for which a minimum
distribution is required. For distributions beginning before the
Participant's death, the first distribution calendar year is the
calendar year immediately preceding the calendar year which
contains the Participant's required beginning date. For
distributions beginning after the Participant's death, the first
distribution calendar year is the calendar year in which
distributions are required to begin pursuant to Section 6.05
above.
(d) LIFE EXPECTANCY. Life expectancy and joint and last survivor
expectancy are computed by use of the expected return multiples in
Tables V and VI of Section 1.72-9 of the income tax regulations.
Unless otherwise elected by the Participant (or Spouse, in the
case of distributions described in Section 6.05(b) above) by the
time distributions are required to begin, life expectancies shall
be recalculated annually. Such election shall be irrevocable as
to the Participant (or Spouse) and shall apply to all subsequent
years. The life expectancy of a nonspouse beneficiary may not be
recalculated.
(e) PARTICIPANT'S BENEFIT.
(1) The Account balance as of the last valuation date in the
calendar year immediately preceding the distribution
calendar year (valuation calendar year) increased by the
amount of any contributions or forfeitures allocated to the
Account balance as of dates in the valuation calendar year
after the valuation date and decreased by distributions
made in the valuation calendar year after the valuation
date.
(2) For purposes of paragraph (1) above, if any portion of the
minimum distribution for the first distribution calendar
year is made in the second distribution calendar year on or
before the required beginning date, the amount of the
minimum distribution made in the second distribution
calendar year shall be treated as if it had been made in
the immediately preceding distribution calendar year.
(f) REQUIRED BEGINNING DATE. The required beginning date of a
Participant is the first day of April of the calendar year
following the calendar year in which the Participant attains age
70 1/2.
6.07 DIRECT ROLLOVER.
(a) GENERAL RULE. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a distributee's election, a
distributee may elect, at the time and in the manner prescribed by
the Plan Administrator, to have any portion of an eligible
rollover distribution paid directly to an eligible retirement plan
specified by the distributee in a direct rollover. This provision
shall be effective for Plan Years commencing after December 31,
1992.
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(b) SPECIAL DEFINITIONS. For purposes of this Section 6.07, the
following definitions shall apply:
(1) ELIGIBLE ROLLOVER DISTRIBUTION. An eligible rollover
distribution is any distribution of all or any portion of
the balance to the credit of the distributee, except that
an eligible rollover distribution does not include: 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 (10) 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).
(2) ELIGIBLE RETIREMENT PLAN. An eligible retirement plan is
an individual retirement account described in Section
408(a) of the Code, an individual retirement annuity
described in Section 409(b) of the Code, an annuity plan
described in Section 403(a) of 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.
(3) DISTRIBUTEE. A distributee includes an employee or former
employee. In addition, the employee's or former employee's
surviving spouse and the employee's or former employee's
spouse or former spouse who is 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.
(4) DIRECT ROLLOVER. A direct rollover is a payment by the
Plan to the eligible retirement plan specified by the
distributee.
6.08 WAIVER OF 30 DAY NOTICE REQUIREMENT. If a distribution is one to which
sections 401(a)(11) and 417 of the Code do not apply, such distribution
may commence less than thirty (30) days after the notice required under
Section 1.411(a)-11(c) of the Income Tax Regulations is given provided
that:
(a) the Plan Administrator clearly informs the Participant that the
Participant has a right to a period of at least 30 days after
receiving the notice to consider the decision of whether or not to
elect a distribution (and, if applicable, a particular
distribution option), and
(b) the Participant, after receiving the notice, affirmatively elects
a distribution.
ARTICLE VII
PLAN ADMINISTRATION
7.01 ALLOCATION OF FIDUCIARY POWERS. Each of the Fiduciaries shall have only
those specific powers and responsibilities that are specifically given to
them under the Plan. The Employer shall have the exclusive
responsibility for making the contributions provided for in the Plan, the
exclusive power to appoint and remove the Trustee and the Plan
Administrator, and the exclusive power to amend or terminate this Plan,
and the Employer shall have no other power or responsibilities. The
Trustee shall have the exclusive authority, discretion and responsibility
to manage and control the assets of the Plan, and the Trustee shall have
no other responsibilities other than those provided in this Plan. The
Plan Administrator shall have the exclusive authority and responsibility
to control and manage the operation and administration of this Plan in
accordance with the terms
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and conditions described in this Plan, and to exercise all fiduciary
functions provided in the Plan or necessary to the operation of the Plan
except such functions as are assigned to other Fiduciaries pursuant to
this Plan. Each Fiduciary warrants that any directions given,
information furnished, or action taken by it shall be in accordance with
the provisions of the Plan authorizing or providing for such direction,
information or action. Furthermore, each Fiduciary may rely upon any
such direction, information or action of another Fiduciary as being
proper under this Plan, and is not required to inquire into the propriety
of any such direction, information or other action. It is intended under
this Plan that each Fiduciary shall be responsible for the proper
exercise of its own powers, duties, responsibilities and obligations
under this Plan and shall not be responsible for any act or failure to
act of another Fiduciary except in circumstances where ERISA imposes
liability for the breach of a co-Fiduciary. No Fiduciary guarantees the
trust fund in any manner against investment loss or depreciation in asset
value except in circumstances where ERISA imposes liability for such loss
or depreciation.
7.02 PLAN ADMINISTRATOR. The Plan shall be administered by the Plan
Administrator who shall be appointed by and serve at the pleasure of the
Board of Directors of the Employer. All usual and reasonable expenses of
the Plan Administrator may be paid in whole or in part by the Employer,
and any expenses not paid by the Employer shall be paid by the Trustee
out of the principal or income of the trust fund. However, if such
expenses result from claims made against a Participant's Account, then
such expenses shall be charged to and paid out of such account. Claims
against a Participant's Account shall include, but not be limited to,
domestic relations orders (whether or not qualified domestic relations
orders under Code Section 414(p)) and spousal distribution rights under
the Retirement Equity Act of 1984 (REA).
7.03 CLAIM PROCEDURE. A Participant or Beneficiary may claim any benefits
due under the Plan by mailing to the last known address of the Plan
Administrator a written application outlining to the best of the
claimant's knowledge or ability, the nature, amount and form of such
benefit. The Plan Administrator shall make all determinations as to the
right of any person to a benefit under the Plan. In accordance with
regulations of the Secretary of Labor issued under Section 503 of ERISA,
the Plan Administrator establishes the following claims procedure:
(a) The Plan Administrator shall review each claim by a Participant
for benefits under the Plan.
(b) If a claim is wholly or partially denied, notice of the denial
meeting the requirements of Section 7.03(c) shall be furnished to
the claimant within a reasonable time after the claim has been
filed.
(c) The Plan Administrator shall provide to any claimant who is denied
a claim for benefits a written notice setting forth in a manner
calculated to be understood by the claimant the following:
(1) the specific reason or reasons for the denial;
(2) specific reference to pertinent plan provisions on which
the denial is based;
(3) a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation why the material or information is necessary;
(4) an explanation of the plan's claim review procedure, as set
forth in Sections 7.03(d) and 7.03(e) of this Agreement.
(d) The purpose of the review procedure set forth in this Section
7.03(d) and in Section 7.03(e) is to provide a procedure by which
a claimant under the Plan may have a reasonable opportunity to
appeal a denial of a claim in order to obtain a full and fair
review. To accomplish that purpose, the claimant or his duly
authorized representative:
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(1) may request a review upon written application to the Board
of Directors of the Employer;
(2) may review pertinent Plan documents or agreements; and
(3) may submit issues and comments in writing.
A claimant (or his duly authorized representative) shall request a
review by filing a written application for review at any time
within sixty (60) days after receipt by the claimant of written
notice of the denial of his claim.
(e) A decision on review of a denial of a claim shall be made in the
following manner:
(1) the decision on review shall be made by the Board of
Directors of the Employer which may in its discretion hold
a hearing on the denied claim. The Board of Directors will
make its decision promptly unless special circumstances
(such as the need to hold a hearing) require an extension
of time for processing, in which case a decision shall be
rendered as soon as possible, but not later than one
hundred twenty (120) days after receipt of the request for
review; and
(2) a decision on review shall be in writing and shall include
specific reasons for the decisions written in a manner
calculated to be understood by the claimant and specific
references to the Plan provisions on which the decision is
based.
7.04 REPORTING AND DISCLOSURE. The Plan Administrator shall exercise such
authority and responsibility as it deems necessary in order to comply
with the reporting and disclosure requirements of ERISA and any valid
governmental regulations issued under such Act relating to the
preparation and filing of all reports and registrations required to be
filed by the Plan with any governmental agency; compliance with all
disclosure requirements imposed by state or federal laws; maintenance of
all records of the Plan other than those required to be maintained by
other Fiduciaries; and the preparation and delivery of all reports,
information and notifications required to be given to Participants or
Beneficiaries in accordance with state or federal laws.
7.05 PLAN ADMINISTRATOR'S DUTIES AND POWERS. The Plan Administrator shall
have such duties and powers as may be necessary to discharge its duties,
including, but not by way of limitation, the following:
(a) To construe and interpret the Plan, decide all questions of
eligibility and determine the amount, manner and time of payment
of any benefits under the Plan;
(b) To prescribe procedures to be followed by Participants or
Beneficiaries filing applications for benefits;
(c) To prepare and distribute, in such manner as the Plan
Administrator determines to be appropriate, information explaining
the Plan;
(d) To receive from the Employer and from Participants such
information as shall be necessary for the proper administration of
the Plan;
(e) To furnish the Employer, upon request, such annual reports with
respect to the administration of the Plan as are reasonable and
appropriate.
(f) To receive, review and keep on file (as it deems convenient or
proper) reports of the financial condition, and of the receipts
and disbursements, of the trust fund from the Trustee;
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(g) To appoint or employ individuals to assist in the administration
of the Plan and any other agents it deems advisable, including
legal and actuarial counsel.
The Plan Administrator shall have no power to add to, subtract from or
modify any of the terms of the Plan, or to change or add to any benefits
provided by the Plan, or to waive or to fail to apply any requirements of
eligibility for a benefit under the Plan.
7.06 ADMINISTRATIVE RULES. The Plan Administrator may adopt such rules as it
deems necessary, desirable, or appropriate. All rules and decisions of
the Plan Administrator shall be uniformly and consistently applied to all
Participants in similar circumstances. Upon making a determination or
calculation, the Plan Administrator shall be entitled to rely upon
information furnished by a Participant or Beneficiary, the Employer, the
legal counsel of the Employer, or the Trustee.
7.07 DIRECTIONS TO TRUSTEE. The Plan Administrator shall issue directions to
the Trustee concerning all benefits which are to be paid from the trust
fund pursuant to the provisions of the Plan.
7.08 BENEFIT APPLICATIONS. The Plan Administrator may require a Participant
to complete and file an application for a benefit, to complete all other
forms furnished by the Plan Administrator, and to furnish all pertinent
information requested by the Plan Administrator.
ARTICLE VIII
THE TRUSTEE
8.01 RESIGNATION AND REMOVAL. The Trustee may resign by a written instrument
addressed to the Employer. The Employer may remove the Trustee by a
written instrument addressed to the Trustee. Appointments to vacancies
shall be made by the Employer and any successor Trustee shall evidence
its acceptance of such appointment by written instrument addressed to the
Employer. Within sixty (60) days after receipt of the written acceptance
of such appointment by the successor Trustee, the Trustee shall assign,
transfer and pay over to such successor Trustee, the funds and properties
then constituting the trust fund together with the proper accounting for
such items. If such accounting is not objected to within 60 days after
the receipt by the Employer or the successor Trustee, the Trustee shall
be deemed to be discharged of all duties under the Plan except to the
extent otherwise provided by law.
If the Trustee is a corporation at any time it shall be merged, or
consolidated with, or shall sell or transfer substantially all of its
assets and business to another corporation, whether state or federal, or
shall be reorganized or reincorporated in any manner, then the resulting
or acquiring corporation shall be substituted for such corporate Trustee
without the execution of any instrument and without any action upon the
part of the Employer, any Participant or Beneficiary, or any other person
having or claiming to have an interest in the trust fund or under the
plan.
8.02 INFORMATION TO BE FURNISHED TO TRUSTEE. The Employer and the Plan
Administrator shall furnish to the Trustee such information as required
or desirable for the purpose of enabling the Trustee to carry out the
provisions of the Plan and the Trustee may rely upon such information as
being correct.
8.03 ACCOUNTING. The Trustee shall keep accurate and detailed accounts of
investments, receipts, disbursements and other transactions under this
Plan and all such accounts and other records relating to it shall be open
to inspection and audit at all reasonable times by any person designated
by the Employer or the Plan Administrator. Within sixty (60) days
following the close of the Plan Year and within sixty (60) days after the
removal or resignation of the Trustee and the acceptance of appointment
by a Successor Trustee as provided in Section 8.01, the Trustee shall
file with the Employer a written account setting forth all investments,
receipts, dis-
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bursements and other transactions effected by it during such Plan Year or
during the period from the close of the last Plan Year to the date of
such removal or resignation. To the extent permitted by law, but subject
to any express provision of applicable law as may be in effect from time
to time to the contrary, no person other than the Employer may require an
accounting or bring any action against the Trustee with respect to the
trust fund or its actions as Trustee.
8.04 TRUSTEE'S RIGHT TO JUDICIAL SETTLEMENT. Notwithstanding any other
provision of this Article, the Trustee shall have the right to have a
judicial settlement of its accounts. In any proceeding for a judicial
settlement of the Trustee's accounts, or for instructions in connection
with the trust fund, the only necessary parties in addition to the
Trustee shall be the Employer and the Plan Administrator. If the Trustee
so elects, it may bring in any other person or persons as a party or
parties defendant.
8.05 TRUSTEE'S EXPENSES. To the extent not paid by the Employer, expenses
incurred by the Trustee in the performance of its duties under the Plan,
including reasonable compensation for agents and for the services of
counsel rendered to the Trustee and related expenses and all other proper
charges and disbursements of the Trustee including all taxes that may be
levied or assessed under existing or future laws shall be paid by the
Trustee out of the Plan. Such expenses shall constitute a charge upon
the Plan. However, if the Trustee's expenses result from claims made
against a Participant's Account, then such expenses shall be charged to
and paid out of such account. Claims against a Participant's Account
shall include, but not be limited to, domestic relations orders (whether
or not qualified domestic relations orders under Code Section 414(p)) and
spousal distribution rights under the Retirement Equity Act of 1984
(REA).
8.06 PAYMENT OF BENEFITS TO INCOMPETENT. If any benefit under the Plan is
payable to a minor or other legally incompetent person, the Trustee shall
not require the appointment of a guardian, but shall be authorized to pay
the same to any person having custody of such minor or incompetent
person, to pay to such minor or incompetent person without the
intervention of the guardian, or to pay the same to a legal guardian of
such minor or incompetent person if one has already been appointed.
8.07 TRUSTEE'S INVESTMENT POWERS. Subject to the fiduciary responsibility
provisions of ERISA, the Trustee shall have the following powers in
connection with the investment of the trust fund:
(a) To invest or reinvest all or any part of the trust funds in any
real or personal property as the Trustee may deem advisable,
including but not limited to:
(1) any securities normally traded by and obtainable through a
stockbroker or "over the counter" dealer or on a recognized
exchange;
(2) any shares of an investment company registered under the
Investment Company Act of 1940, as amended; and
(3) any securities issued or guaranteed by the United States of
America or any of its instrumentalities or States or of any
county, city, town, village, school district, or other
political subdivision of any of said States;
(b) To sell or exchange any part of the assets of the Plan.
(c) To vote in person or by proxy the securities and investment
company shares which it holds as Trustee and to delegate such
power.
(d) To consent to or participate in dissolutions, reorganizations,
consolidations, mergers, sales, transfers or other changes in
securities and investment company shares which it holds as
Trustee, and, in such connection, to delegate its powers, and to
pay all assessments, subscriptions and other charges.
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(e) To retain in cash and keep unproductive of income such amount as
the Trustee may deem advisable in the Trustee's discretion and the
Trustee shall not be required to pay interest on such cash
balances or on cash in the Trustee's hands pending investment.
(f) To sell, exchange, convey or transfer any property at any time
held by the Trustee upon such terms as the Trustee may deem
advisable and no person dealing with the Trustee shall be bound to
see the application of the purchase money or to inquire into the
propriety of any such transaction.
(g) To enter into, compromise, compound and settle any debt or
obligation due to or from the Trustee and to reduce the rate of
interest on, to extend or otherwise modify, or to foreclose upon
default or otherwise enforce any such obligation.
(h) To cause any bonds, stocks or other securities held by the Trustee
to be registered in or transferred into the Trustee's name as
Trustee or the name of its nominee or nominees, or to hold them
unregistered or in form permitting transferability by delivery,
but at all times with full responsibility for such securities as
Trustee.
(i) To borrow money upon such terms and conditions as may be deemed
advisable to carry out the purposes of the trust and to pledge
securities or other property in repayment of any such loan;
provided, however, that loans or advances may be made by the
Trustee under the Plan by way of overdrafts or otherwise on a
temporary basis on which no interest is payable.
(j) To manage, administer, operate, repair, improve and mortgage or
lease for any number of years, regardless of any restrictions on
leases made by trustees or to otherwise deal with any real
property or interest in real property including, but not limited
to, the following:
(1) renew or extend or participate in the renewal or extension
of any mortgage;
(2) agree to the reduction in the interest on any mortgage or
other modification or change in terms of any mortgage or
guarantee of any mortgage in any manner and upon such terms
as may be deemed advisable; and
(3) waive any defaults whether in performance of any covenant
or condition of any mortgage or in the performance of any
guarantee or to enforce any such default in such manner as
may be deemed advisable, including the exercise and
enforcement of any and all rights of foreclosure.
(k) To invest all or part of the trust fund in interest-bearing
deposits with the Trustee, or with a bank or similar financial
institution related to the Trustee if such bank or other
institution is a fiduciary with respect to the Plan as defined in
ERISA, including but not limited to investments in time deposits,
savings deposits, certificates of deposit or time accounts which
bear a reasonable interest rate.
(l) To employ suitable agents, accountants and counsel and to pay
their reasonable expenses and compensation.
(m) To transfer, at any time and from time to time, such part or all
of the trust fund as the Trustee deems advisable to the trustee of
any trust which has been qualified under Section 401(a) and is
exempt under Section 501 (a) of the Code, and which is maintained
by it as a medium for the collective investment of funds of
pension, profit sharing or other employee benefit trusts, and to
withdraw any part or all of the trust fund so transferred. If
such a transfer is made, the provisions of any such trust shall be
deemed a part of this Agreement to the extent that they shall not
be inconsistent with the provisions of this Agreement.
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(n) To make, execute and deliver as Trustee any and all deeds, leases,
mortgages, advances, contracts, waivers, releases or other
instruments in writing necessary or proper in the employment of
any of the foregoing powers.
(o) To exercise, generally, any of the powers which an individual
owner might exercise in connection with property either real,
personal or mixed held by the trust fund, and to do all other acts
that the Trustee may deem necessary or proper to carry out any of
the powers set forth in this Article or otherwise in the best
interests of the trust fund.
(p) To settle, compromise or abandon all claims and demands in favor
of or against the trust fund.
(q) To appoint and/or employ business entities and/or individuals to
act as investment advisers and/or managers on behalf of this Plan
in order to manage any portion or all of the assets of this Plan.
However, the appointment of such an investment adviser and/or
manager: (1) shall be subject to the approval of the Employer, and
(2) will render any such investment adviser and/or manager who is
appointed a fiduciary under this Plan to the extent of such
adviser's and/or manager's investment duties and responsibilities
to the Plan, and (3) in no event shall cause the assets of this
Plan to be taken out of Trust or cause the Trustee to be
eliminated.
(r) To approve, devise and/or implement a system or policy to permit
Participants and/or Beneficiaries of this Plan an election, which
election shall be granted to all Participants and/or Beneficiaries
in a nondiscriminatory manner, to exercise investment control over
a portion or all or their Accounts. If a Participant or
Beneficiary does not choose to exercise such investment control,
the Trustee shall continue to invest the Account of such
Participant or Beneficiary. If the Participant or the Beneficiary
directs the Trustee to invest some or all of that portion of the
Participant's or Beneficiary's Account in an investment which is
prohibited by the terms of the Plan, the direction of the
Participant or the Beneficiary shall be deemed to control and the
Trustee shall have no liability for violating the terms of the
Plan by following the Participant's or the Beneficiary's
investment instructions. If a Participant or a Beneficiary
exercises investment control over the assets in such person's
Account, no Fiduciary shall be subject to liability for any loss
or any breach of the fiduciary responsibility standards of ERISA.
The following shall also apply:
(1) All investment directions shall be made in the way required
by the Trustee and shall contain such information as the
Trustee shall require. In the discretion of the Trustee,
any such form which is incomplete or unclear will be
ineffective and may be treated by the Trustee as if no such
investment direction had been given. Within a reasonable
period of time from its receipt of an investment direction,
the Trustee shall either accept the direction as sufficient
or reject the direction as insufficient. The Trustee shall
provide written confirmation of its decision and shall
explain to the Participant why any rejected investment
direction was insufficient. No Fiduciary shall incur any
liability for any failure to act upon an investment
direction so long as the investment direction was
implemented within a reasonable period after the Trustee's
determination of its sufficiency.
(2) The Trustee may refuse to implement any investment
direction that would cause the Plan or any Fiduciary to
engage in a transaction prohibited under ERISA unless an
exemption is obtained. The Trustee may also refuse to
implement any investment direction that would generate
unrelated business income or unrelated debt-financed income
taxable to the Plan under the Code. The Trustee shall
refuse to implement any investment direction which would
violate the provisions of Section 8.08 concerning
securities laws restrictions.
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(s) To accept a rollover contribution to be credited to an Employee's
Account (which portion of such Account shall always be 100%
vested) to the extent that such rollover contribution is permitted
under then existing Code provisions.
(t) To accept a transfer of funds from the trustee of a plan which is
tax qualified under the relevant provisions of the Code to be
credited to an Employee's Account (which portion of such Account
shall always be 100% vested) so long as such transfer complies
with the provisions of Section 8.11.
(u) To follow the directions of any investment committee appointed by
the Employer so long as such directions do not require any action
to be taken which would be prohibited by the fiduciary
responsibility provisions of ERISA or would be contrary to the
specific provisions of the Plan. The Employer shall, in its sole
discretion, establish and appoint the members of such investment
committee and furnish appropriate notification to the Trustee. If
the Employer does not establish an investment committee, the
Trustee shall continue to exercise the Trustee's investment
responsibilities and powers as provided in this Article.
(v) To invest up to one hundred percent (100%) of the fair market
value of the Plan in qualifying Employer securities consisting of
stock of the Employer or of any affiliate of the Employer within
the meaning of ERISA Section 407(d)(7). Such investment shall
only be made, however, upon the direction of individual
Participants pursuant to the provisions of Section 8.07(q) and
Section 8.08 and at a price determined by the Trustee in
accordance with the fiduciary requirements of ERISA. Shares of
stock acquired by the Trustee pursuant to such direction shall be
allocated to each Participant's Account as soon as possible after
acquisition. Such shares are referred to as allocated shares. The
following provisions shall apply to the voting of allocated
shares:
(1) In connection with each meeting of stockholders of the
Employer or any affiliate each Participant shall be given
the opportunity to provide the Trustee with instructions
regarding the voting of the Participant's allocated shares
credited to the Participant's Account. The Trustee shall
vote such shares in accordance with such instructions. All
stock of the Employer or any affiliate owned by the Plan
but not yet allocated to the Account of A Participant shall
be voted by the Trustee so as to reflect, to the extent the
Trustee determines it to be possible to do so, the voting
directions of the Participants who provided instructions.
All allocated shares in respect of which voting
instructions shall not have been received from Participants
within the time specified by the Trustee shall not be
voted.
(2) In connection with a tender offer or a request or
invitation for tenders of, allocated stock made to the
Trustee (the "offer"), the Trustee shall furnish to each
Participant a notice of such event together with a copy of
the offer, and a form by which the Participant may direct
the Trustee whether or not to tender the stock allocated in
the Participant's Account in the Plan pursuant to the
offer.
The Trustee shall tender or not tender such shares in
accordance with such instructions. All shares of stock of
the Employer or any affiliate owned by the Plan but not yet
allocated to the Account of a Participant shall be tendered
in the same proportion as the number of allocated shares as
to which the Trustee received timely directions to tender
bears to the number of allocated shares as to which the
Trustee shall have received timely directions either to
tender or not tender, counting a non-response by a
Participant for this purpose as a decision not to tender.
All allocated shares for which tender instructions were not
received from Participants within the time specified by the
Trustee shall not be tendered.
(3) Reasonable means shall be employed to provide secrecy and
confidentiality respecting each Participant's voting and
tender instructions. The Trustee, in consultation with the
Plan
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Administrator, shall establish (and modify and amend)
reasonable procedures for implementing the foregoing
provisions concerning voting rights and tender
instructions.
(4) The Trustee shall have no responsibility to investigate or
evaluate any offer and shall be entitled to respond to any
offer solely on the basis of this Section 8.07(v) and the
procedures described in such Section. Any shares of stock
of the Employer or any affiliate which shall be tendered by
the Trustee but which for any reason are not purchased
pursuant to the offer shall be restored to the Trust.
(w) To retain all shares of Harley-Davidson, Inc. stock transferred to
the Trustee as a result of either a Participant's direct rollover
or a transfer of assets and liabilities from the Holiday Rambler
Employees' Retirement Plan subject to the following conditions:
(1) A Participant may direct the Trustee to sell some or all of
such shares in accordance with the Plan's established
investment direction procedures.
(2) The Trustee may not purchase any additional shares of such
stock except shares purchased under a Participant's
dividend reinvestment election in effect on the date of the
transfer of assets and liabilities from the Holiday Rambler
Employees' Retirement Plan.
8.08 SECURITIES LAW RESTRICTIONS. If the Plan Administrator determines that
any election with respect to a contribution into or reallocation of funds
into or out of qualifying employer securities might violate applicable
securities laws or create a liability for Participants under such laws or
is for any other reason known to the Plan Administrator contrary to the
best interests of Participants (including Participants subject to Section
16 of the Securities Exchange Act of 1934, as amended), the Plan
Administrator may, in its sole discretion, suspend or limit the right of
any Participants to make or change investment elections.
8.09 FORM OF PLAN CONTRIBUTIONS. The Trustee shall receive any Employer
Contributions paid to the Trustee in cash or in the form of such other
property as the Trustee may from time to time deem acceptable and which
shall have been delivered to the Trustee. Elective Deferrals shall only
be paid in cash. The Employer shall make contributions in such manner
and at such times as shall be appropriate. The Trustee shall not be
responsible for the calculation or collection of any Employer
Contributions or Elective Deferrals under or required by the Plan, but
shall be responsible only for property received by it pursuant to this
Plan.
8.10 PAYMENTS MADE AT DIRECTION OF PLAN ADMINISTRATOR. The Trustee shall, on
the written directions of the Plan Administrator, make payments out of
the trust fund to such persons, in such amounts and for such purposes as
may be specified in the written directions of the Plan Administrator. To
the extent permitted by law, the Trustee shall be under no liability for
any payment made pursuant to the direction of the Plan Administrator.
Any written direction of the Plan Administrator shall constitute a
certification that the distribution or payment so directed is one which
the Plan Administrator is authorized to direct.
8.11 PLAN TRANSFERS.
(a) The Trustee may accept a direct transfer of assets representing
accrued benefits from another qualified plan if directed to do so
by the Plan Administrator upon determination that such transfer
meets the following requirements and conditions:
(1) Both the plan and trust from which the transfer is
originating shall be qualified within the meaning of
Section 401(a) and 501(a) of the Code, respectively, on the
date of the transfer. The Plan Administrator may require
copies of determination letters from the Internal Revenue
Service, an opinion of counsel, or such other evidence of
qualification as the Plan Administrator shall determine.
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(2) The transferor plan must contain provisions which allow
transfers of plan assets and liabilities to another plan.
(3) The transferor plan shall transfer to the Trustee the
accrued benefits of all participants in the transferor plan
whose interests are to be transferred. The amounts
transferred shall be equal to the benefits such
participants were entitled to immediately before such
transfer (determined as if the transferor plan had been
terminated).
(4) The Plan Administrator shall determine that the optional
forms of benefits provided for under the terms of the
transferor plan are the same as the optional forms of
benefits provided for under this Plan within the meaning of
Section 411(d)(6) of the Code.
(5) To facilitate Plan accounting and record keeping, the Plan
Administrator may refuse to accept a transfer from another
plan unless the trustee of the transferor plan provides a
written notice to the Plan Administrator specifying the
date on which the proposed transfer shall occur.
(6) The Plan Administrator may require the trustee of the
transferor plan to warrant the correctness of the amount of
a participant's accrued benefit which is transferred to
this Plan.
(7) No plan transfer shall be effectuated before the Plan
Administrator has issued a written notice to the trustee of
the transferor plan, indicating that the proposed transfer
of assets and liabilities meets the terms and conditions of
this Section 8.11.
(8) The accrued benefit of an employee attributable to a plan
transfer shall be fully vested and nonforfeitable.
(b) The Trustee may make a direct transfer of assets representing
accrued benefits to another qualified plan if directed to do so by
the Plan Administrator upon determination that such transfer meets
the following requirements and conditions:
(1) Both the plan and trust to which the transfer is made shall
be qualified within the meaning of Section 401(a) and
501(a) of the Code, respectively, on the date of the
transfer. The Plan Administrator may require copies of
determination letters from the Internal Revenue Service, an
opinion of counsel, or such other evidence of qualification
as the Plan Administrator shall determine.
(2) The transferee plan must contain provisions which allow
such transferee plan to accept transfers of plan assets and
liabilities from another plan.
(3) The trustee of the transferee plan shall receive the
accrued benefits of all participants in the transferor plan
whose interests are to be transferred. The amounts
transferred shall be equal to the benefits such
participants were entitled to immediately before such
transfer (determined as if the Plan had been terminated).
(4) The Plan Administrator shall determine that the optional
forms of benefits provided for under the terms of the
transferee plan are the same as the optional forms of
benefits provided for under this Plan within the meaning of
Section 411(d)(6) of the Code.
(5) To facilitate Plan accounting and record keeping, the Plan
Administrator may refuse to make a transfer to another plan
unless the trustee of the transferee plan provides a
written notice to the Plan Administrator specifying the
date on which the proposed transfer shall occur.
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(6) The Plan Administrator may require the trustee of the
transferee plan to warrant the correctness of the amount of
a participant's accrued benefit which is transferred from
this Plan.
(7) No plan transfer shall be effectuated before the Plan
Administrator has issued a written notice to the trustee of
the transferee plan, indicating that the proposed transfer
of assets and liabilities meets the terms and conditions of
this Section 8.11.
(8) The accrued benefit of an Employee attributable to a plan
transfer shall be fully vested and nonforfeitable.
ARTICLE IX
FIDUCIARY RESPONSIBILITY
9.01 FIDUCIARY STANDARDS. Each Fiduciary shall discharge his duties under the
Plan solely in the interest of the Participants and their Beneficiaries
and (1) for the exclusive purpose of providing benefits for such
Participants and their Beneficiaries and defraying reasonable expenses of
administering the Plan; (2) with the care, skill, prudence, and diligence
under the circumstances then prevailing that a prudent man acting in a
like capacity and familiar with such matters would use in the conduct of
an enterprise of a like character and with like aims; and (3) in
accordance with the Plan insofar as the Plan is consistent with the
provisions of ERISA. The Trustee shall diversify the investments of the
Plan so as to minimize the risk of large losses, unless under the
circumstances it is clearly prudent not to do so. The requirements set
forth above shall not be deemed to be violated merely because the Trustee
invests the trust funds partly or wholly in (1) shares of a mutual fund,
or (2) shares of a pooled investment fund maintained by a bank.
9.02 SITUS OF PLAN ASSETS. Except as authorized by regulations prescribed by
the Secretary of Labor, the Trustee shall not maintain the indicia of
ownership of any Plan assets outside the jurisdiction of the District
Courts of the United States.
ARTICLE X
EXCLUSIVE BENEFIT REQUIREMENTS
10.01 TRUSTEE'S RECEIPT OF FUNDS. All Contributions to the Plan shall be
transmitted directly or indirectly to the Trustee. All Contributions so
received by the Trustee shall constitute trust funds and shall be held
and managed and administered by the Trustee pursuant to the terms of the
Plan.
10.02 PLAN ASSETS FOR EXCLUSIVE BENEFIT OF PARTICIPANTS. The assets of this
Plan shall never inure to the benefit of the Employer and shall be held
for the exclusive purposes of providing benefits to Participants in the
Plan and their Beneficiaries and defraying reasonable expenses of
administering the Plan.
10.03 RETURN OF EMPLOYER CONTRIBUTIONS. Section 10.02 to the contrary
notwithstanding, Employer Contributions to the Plan may be returned only
in the following circumstances:
(a) In the case of a Contribution which is made by an Employer by a
mistake of fact, such Contribution may be returned to the Employer
within one year after the payment of the Contribution.
(b) If a Contribution is conditioned on the initial qualification of
the Plan under the relevant provisions of the Code or the
qualification of the Plan as the result of an amendment then, to
the extent that the
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deduction is disallowed, such Contribution may be returned to the
Employer within one year after the date of denial of qualification
of the Plan.
(c) 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, such Contribution may be returned to
the Employer within one year after the disallowance of the
deduction.
ARTICLE XI
PLAN TERMINATION AND AMENDMENTS
11.01 TERMINATION OR PARTIAL TERMINATION. While it is the intention of the
Employer that the Plan shall be permanent, the Employer reserves the
right to terminate it. Such termination shall become effective upon
receipt by the Trustee of a written instrument of termination signed by
the Employer. Upon termination of the Plan or upon a partial termination
of the Plan within the meaning of Section 411(d)(3) of the Code, or upon
a complete discontinuance of Contributions under the Plan, the rights of
all affected Employees to their Accrued Benefits shall become
nonforfeitable. The Trustee may retain benefits under the Plan until a
Participant dies, retires, or otherwise terminates employment, or shall
distribute such benefits to the Participants as soon as practicable.
11.02 LIMITATIONS ON AMENDMENTS BY EMPLOYER. This Plan may be amended by the
Employer in writing at any time, provided, however, that such amendment:
(a) shall not increase the duties of the Trustee without its written
consent.
(b) shall not affect directly or indirectly the vesting schedule under
the Plan unless each Participant having not less than 3 Years of
Vesting Service is permitted to elect to have his nonforfeitable
percentage in his Account computed under the Plan without regard
to such amendment. For purposes of this provision, a "Year of
Vesting Service" means a Plan Year during which the Participant is
credited with at least 1,000 Hours of Service. The election
period shall commence on the date the amendment is adopted and end
no earlier than the latest of the following dates:
(1) The date which is sixty (60) days after the day the
amendment is adopted,
(2) The date which is sixty (60) days after the day the
amendment becomes effective, or
(3) The date which is sixty (60) days after the Participant is
issued written notice of the amendment by the Employer or
the Plan Administrator.
Notwithstanding the foregoing, a Participant whose
nonforfeitable percentage under the Plan, as amended, at
any time cannot be less than such percentage determined
without regard to such amendment shall not be entitled to
any election under this subparagraph (b).
(c) shall not revise the funding method under the Plan unless such
revised funding method has been approved by the Internal Revenue
Service.
(d) shall not revise the Plan Year unless such Plan Year revision is
approved by the Internal Revenue Service.
(e) shall not decrease a Participant's Account or eliminate an
optional form of distribution for amendments signed after July 30,
1984.
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11.03 AMENDMENTS REQUIRED FOR QUALIFICATION. Any provision of this Plan may be
amended in any respect, without regard to the limitations set forth in
Section 11.02 above, if the amendment is required for initial or
continued qualification of the Plan under Section 401(a) of the Code.
Such amendment may be made retroactive if permitted by the Internal
Revenue Service under the authority contained in Section 401(b) of the
Code.
11.04 PARTICIPANT'S CONSENT TO AMENDMENT. Except as otherwise provided in this
Article, neither the consent of a Participant nor that of any Beneficiary
is required for any amendment to the Plan consistent with the provisions
of Sections 11.02 and 11.03.
ARTICLE XII
OTHER REQUIRED PROVISIONS
12.01 PLAN MERGER OR CONSOLIDATION. In the case of any merger or consolidation
with, or transfer of assets or liabilities from this Plan to any other
plan, each Participant in this Plan shall be entitled to receive (in the
event of termination of this Plan or its successor immediately after such
merger, consolidation or transfer) a benefit which is not less than the
benefit he would have been entitled to receive had this Plan terminated
immediately prior to such merger, consolidation or transfer.
12.02 NONALIENATION OF BENEFITS; QUALIFIED DOMESTIC RELATIONS ORDERS. No
benefit or interest available under the Plan will be subject to
assignment or alienation either voluntarily or involuntarily. Effective
for Plan Years beginning after December 31, 1984, the preceding sentence
shall also apply to the creation, assignment, or recognition of a right
to any benefit payable with respect to a Participant pursuant to a
domestic relations order unless such order is determined to be a
qualified domestic relations order as defined in Section 414(p) of the
Code, or any domestic relations order entered before January 1, 1985. If
the Plan receives a qualified domestic relations order, the Plan
Administrator may require the Trustee to distribute to the alternate
payee the portion of the Participant's Account which is subject to such
qualified domestic relations order before the Participant's attainment of
his earliest retirement age as defined in Code Section 414(p) or such
Participant's separation from the service of the Employer. Such
distribution shall be made in the form of a cash lump sum distribution to
the alternate payee if the present value of the benefit to be paid does
not exceed $3,500.00. If the present value of the benefit to be paid
exceeds $3,500.00, the alternate payee must consent in writing to such
earlier distribution in the form of a cash lump sum distribution.
12.03 FORM OF BENEFIT PAYMENTS. Whenever benefits become payable under the
Plan, the same may be paid directly by the Trustee in cash or in kind to
a Participant or his Beneficiary.
ARTICLE XIII
LOANS TO PARTICIPANTS
13.01 TRUSTEE'S AUTHORITY. The Trustee is authorized and directed to establish
a program for the Plan to make loans to Plan Participants in accordance
with Section 408(b)(1) of ERISA. Such program shall be in writing and
shall contain the terms and conditions set forth in this Article XIII as
well as such other terms and conditions the Trustee shall specify in a
separate document or documents.
13.02 AMOUNT OF LOAN.
(a) The Trustee may, if the Plan Administrator approves, lend to such
Participant who is a party in interest within the meaning of ERISA
Section 3(14) an amount of money not to exceed the lesser of:
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(1) 50% of the value of the vested Account or
(2) $50,000.00.
(b) For the purposes of the foregoing limits, the Plan Administrator
shall take into account the outstanding balance of all other loans
made to the Participant from the Plan and all other loans made to
the Participant from Plans of Employers which are deemed to be
related under the provisions of Code Section 414. All loans shall
be subject to the approval of the Plan Administrator who shall
thoroughly investigate each application for a loan. For purposes
of this Article, a loan shall be deemed to include assignments or
agreements to assign or pledges or agreements to pledge any
portion of the Participant's Account.
13.03 LOAN TERMS AND CONDITIONS. The Plan Administrator shall have the final
and exclusive right to determine the propriety and the amount of any loan
to be made and the amount within the maximum limit. In addition to such
rules and regulations as the Plan Administrator may adopt, all loans
shall comply with the following terms and conditions:
(a) The minimum amount of any loan shall be $1,000.00. An application
for a loan shall be made in writing by a Participant to the Plan
Administrator whose action thereon shall be final. A married
Participant's Spouse must consent to the use of the Account
Balance as security for the loan. Spousal Consent shall be
obtained no earlier than the beginning of the ninety (90) day
period that ends on the date on which the loan is to be so
secured. The consent must be in writing, must acknowledge the
effect of the loan, and must be witnessed by a Plan Representative
or a notary public. Such consent shall thereafter be binding with
respect to the consenting spouse or any subsequent spouse with
respect to that loan. A new consent shall be required if the
Account Balance is used for negotiation, renewal, or other
revision of the loan.
(b) The period of repayment of any loan shall be set by the Plan
Administrator (after consultation with the Participant) but such
period shall not exceed five (5) years. The sole exception to the
five (5) year repayment requirement is that a longer period of
repayment may be permitted if the loan proceeds are used to
acquire a dwelling unit which within a reasonable time period
(determined at the time the loan is made) will be used as the
principal residence of the Participant.
(c) Any loan shall by its terms require that repayment (principal and
interest) be amortized over level payments, not less frequently
than quarterly, over the repayment period.
(d) No loan may be made to any shareholder-employee as defined in Code
Section 1379 as in effect on the day before the date of the
enactment of the Subchapter S Revision Act of 1982.
(e) Each loan shall be made against adequate security and the loan
shall be evidenced by a Promissory Note in the amount of the loan
including interest payable to the Trustee. If the Participant's
vested Account balance is used as security, no more than fifty
percent (50%) of such vested Account balance may be considered as
security for the outstanding balance of all loans from the Plan to
such Participant.
(f) Each loan shall bear interest at a rate fixed by the Plan
Administrator and the Trustee and, in determining the interest
rate, the Plan Administrator and the Trustee may take into
consideration interest rates being charged by local financial
institutions. The Plan Administrator shall not discriminate among
Participants in the matter of interest rates and amount of
security. However, loans granted at different times or for
different loan periods, may have different terms and conditions if
in the opinion of the Plan Administrator, the difference in terms
and conditions is justified by changes in general economic
conditions or other relevant factors.
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(g) Any loan may be prepaid in full at any time.
(h) The Plan Administrator shall establish a method by which loans
must be repaid by payroll deduction in equal amounts over the loan
period sufficient to fully amortize the loan within the
permissible repayment period.
(i) Loans shall be made available to all Participants on a reasonably
equivalent basis.
(j) In the event of default, foreclosure on the note and attachment of
security will not occur until a distributable event occurs under
the provisions of the Plan.
(k) Loans shall not be made available to Highly Compensated Employees
in an amount greater than the amount made available to other Plan
Participants.
(l) If a valid spousal consent has been obtained in accordance with
13.03(b), then, notwithstanding any other provision in this Plan
the portion of the Participant's vested Account Balance used as a
security interest held by the Plan by reason of a loan outstanding
to the Participant shall be taken into account for purposes of
determining the amount of the Account Balance payable at the time
of death or distribution, but only if the reduction is used as
repayment of the loan. If less than one hundred percent (100%) of
the Participant's vested Account Balance (determined without
regard to the preceding sentence) is payable to the surviving
spouse, then the Account Balance shall be adjusted by first
reducing the vested Account Balance by the amount of the security
used as repayment of the loan, and then determining the benefit
payable to the surviving spouse.
13.04 ACCOUNTING FOR LOANS. A loan to a Participant shall be treated as an
investment of the funds credited to such Participant's Account. The
Participant's Account balance shall be reduced by an amount equal to the
principal amount of such loan. Such Account balance will be restored as
principal amounts of the loan are repaid by the Participant. All
interest payments by the Participant will be credited to his Account.
The Trustee or Plan Administrator (or a person or entity appointed by the
Plan Administrator) shall provide in a uniform and nondiscriminatory
manner for an equitable allocation of trust fund earnings or losses with
respect to such Participant's Account as provided in Section 2.06 based
on the average fund balance of such Account during the Plan Year, or
based on a selected valuation date or dates during the Plan Year.
ARTICLE XIV
MISCELLANEOUS
14.01 NONGUARANTEE OF EMPLOYMENT. No Employee of the Employer nor anyone else
shall have any rights against the Employer or the Trustee as a result of
this agreement except those expressly granted to them under this
agreement. Nothing in this agreement shall be construed to give any
Participant the right to remain an Employee of the Employer.
14.02 CONSTRUCTION OF AGREEMENT. This agreement may be executed and/or
conformed in any number of counterparts, each of which shall be deemed an
original and shall be construed and enforced according to the laws of the
state in which the agreement is executed to the extent not inconsistent
with the applicable provisions of the Code or ERISA.
14.03 DURATION OF PLAN. Subject to the provisions contained in this agreement
with respect to earlier termination, the trust created under this
agreement shall continue in existence for the longest period permitted by
law.
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14.04 ILLEGALITY. In case any provisions of this agreement shall be held
illegal or invalid for any reason, said illegal or invalid provision
shall not affect the remaining parts of this agreement but this agreement
shall be construed and enforced as if said illegal or invalid provisions
had never been inserted.
ARTICLE XV
TOP HEAVY RULES
15.01 EFFECTIVE DATE. The provisions of this Article XV shall be applicable to
the Plan for any Plan Years beginning after December 31, 1983 and will
supersede any conflicting provision in the Plan.
15.02 DETERMINATION OF TOP HEAVY STATUS. The Plan will be deemed to be top
heavy if, as of the determination date, the aggregate of the Individual
Accounts of Key Employees under the Plan exceeds 60 percent of the
aggregate of the Individual Accounts of all Employees under the Plan.
The Account of a Participant who has not performed any service for the
Employer during the 5 year period ending on the Determination Date will
be disregarded. The Plan Administrator shall be responsible for making
the determination of whether the Plan is top heavy for any Plan Year. In
carrying out this responsibility, the Plan Administrator shall use the
Present Value of each Participant's Account as of the Determination Date.
For purposes of making the determination of top heavy status the Plan
Administrator shall include any Required Aggregation Group of plans. The
determination of top heavy status may be made by means of top heavy
ratios which are either precisely in accord with Code Section 416 or
which are not precisely in accord with Code Section 416 but which
mathematically prove that the Plan is not top heavy. For purposes of
this Section 15.02, the top heavy ratio is a fraction, the numerator of
which is the sum of the account balances of all Key-Employees as of the
Determination Date (including any part of any account balance distributed
in the five year period ending on the Determination Date), and the
denominator of which is the sum of all account balances (including any
part of any account balance distributed in the five year period ending on
the Determination Date) of all Participants as of the Determination Date.
Both the numerator and denominator of the top heavy ratio are to be
adjusted to reflect any contribution which is due but unpaid on the
Determination Date. If the Plan Administrator chooses the latter method,
any top heavy ratios used must conform to the requirements of Code
Section 416 and the regulations promulgated thereunder.
The following definitions apply for purposes of this Section 15.02:
(a) "Determination Date" for any Plan Year means the last day of the
preceding Plan Year or, in the case of the first Plan Year of the
Plan, the last day of that Plan Year.
(b) "Employer" means all the members of a controlled group of
corporations (as defined in Code Section 414(b)), of a commonly
controlled group of trades or businesses (whether or not
incorporated) (as defined in Code Section 414 (c)), or of an
affiliated service group (as defined in Code Section 414(m)), of
which the Employer is a part. However, the aggregation rules
under Code Sections 414 (b), (c) and (m) do not apply for
determining ownership of the Employer for purposes of determining
who is a Key Employee under the Plan.
(c) "Key Employee" means as of any Determination Date, any Employee or
former Employee who, at any time during the Plan Year (which
includes the Determination Date) or during the preceding four Plan
Years, is an officer of the Employer, one of the Employees owning
the 10 largest interests in the Employer, a more than 5% owner of
the Employer, or a more than 1% owner of the Employer who has
annual compensation of more than $150,000. An officer is any
Employee or former Employee (and the beneficiaries of such
Employee) who at any time during the determination period was an
officer of the Employer and such Individual's annual Compensation
exceeded 150 percent of the dollar limitation under Section
415(c)(1)(A) of the Code. In determining one of the Employees
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owning the 10 largest interests in the Employer, Employees having
Compensation at least equal to the dollar limitation specified
under Section 415(c)(1)(A) of the Code shall be taken into
account. The constructive ownership rules of Code Section 318 (or
the principles of that section, in the case of an unincorporated
Employer), will apply to determine ownership in the Employer. The
Plan Administrator will make the determination of who is a Key
Employee in accordance with Code Section 416(I)(1) and the
regulations under that Code Section.
(d) "Non-Key Employee" means an Employee who does not meet the
definition of a Key Employee.
(e) "Permissive Aggregation Group" means the Required Aggregation
Group plus any other qualified plan maintained by the Employer,
but only if such Group would satisfy in the aggregate, the
requirements of Code Section 401(a)(4) and Code Section 410. The
Plan Administrator shall determine which plan to take into account
in determining the Permissive Aggregation Group.
(f) "Present Value" means the sum of the account balance as of the
most recent valuation date and an adjustment for contributions due
as of the determination date.
(g) "Required Aggregation Group" means:
(1) Each qualified plan of the Employer in which at least one
Key Employee participates or participated at any time
during the 5 year period ending on the Determination Date
(regardless of whether the Plan was terminated); and
(2) Any other qualified Plan of the Employer which enables a
plan described in (1) to meet the requirements of Code
Section 401(a)(4) or Code Section 410.
(h) "Valuation Date" means the annual date on which Plan assets must
be valued for purpose of determining the value of account
balances. The valuation date for the Plan shall be the most
recent valuation date within a twelve (12) month period ending on
the Determination Date.
15.03 EFFECT OF TOP HEAVY STATUS. If the Plan is determined to be top heavy as
of a Determination Date, the following rules shall apply:
(a) A five percent (5%) owner as described in Code Section 416(I) must
receive distribution of his benefits under the Plan commencing no
later than April 1 of the calendar year following the calendar
year in which he attains age 70 1/2 regardless of whether such
individual actually retires from employment with the Employer.
(b) This provision will only apply to Participants employed by the
Employer on the last day of the Plan Year. The Employer
Contributions and forfeitures allocated on behalf of any
Participant who is not a key employee shall not be less than the
lesser of three percent (3%) of such Participant's Compensation or
the largest percentage of the first $200,000.00 of the key
employee's compensation, allocated on behalf of any key employee
for that year. The minimum allocation is determined without
regard to any Social Security contribution. This minimum
allocation shall be made even though under other plan provisions,
the Participant would not otherwise be entitled to receive an
allocation or would have received a lesser allocation because of
the Participant's failure to complete a specified minimum number
of Hours of Service.
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ARTICLE XVI
DEFINITIONS
The following words and phrases when used in this Agreement shall have the
following meanings, unless the context clearly indicates otherwise:
16.01 ACCOUNT: An account maintained by the Trustee on behalf of a Participant
which shall reflect the following:
(a) the value derived from all Employer Contributions; and
(b) the value of all Elective Deferrals by Employees.
16.02 ACTUAL DEFERRAL PERCENTAGE: For a specified group of Participants for a
Plan Year, the average of the ratios (calculated separately for each
Participant in such group) of (1) the amount of Employer Contributions
actually paid over to the Trustee on behalf of such Participant for the
Plan Year to (2) the Participant's Compensation for such Plan Year
(whether or not the Employee was a Participant for the entire Plan Year)
Employer contributions on behalf of any Participant shall include: (1)
any Elective Deferrals made pursuant to the Participant's deferral
election (including Excess Elective Deferrals of Highly Compensated
Employees), but excluding (a) Excess Elective Deferrals of Nonhighly
Compensated Employees that arise solely from Elective Deferrals made
under this Plan or other plans of the Employer and (b) Elective Deferrals
that are taken into account in the Contribution Percentage test (provided
the ADP test is satisfied both with and without exclusion of these
Elective Deferrals; and (2) at the election of the Employer, Qualified
Nonelective Contributions and Qualified Matching Contributions. For
purposes of computing Actual Deferral Percentages, an Employee who would
be a Participant but for the failure to make Elective Deferrals shall be
treated as a Participant on whose behalf no Elective Deferrals are made.
16.03 AGGREGATE LIMIT: The sum of (a) 125 percent of the greater of the ADP of
the Non-highly Compensated Employees for the Plan Year or the ACP of
Non-highly Compensated Employees under the Plan and (b) the lesser of
200% or two plus the lesser of such ADP or ACP.
16.04 AVERAGE CONTRIBUTION PERCENTAGE: The average of the Contribution
Percentages of the Eligible Participants in a group.
16.05 BASE CONTRIBUTION PERCENTAGE: The percentage of compensation contributed
by the Employer under the Plan with respect to that portion of each
Participant's compensation not in excess of the integration level
specified in Section 2.03(b).
16.06 BENEFICIARY: A person or entity designated in accordance with this Plan
to receive benefits from the Plan upon the death of a Participant.
16.07 BREAK-IN-SERVICE: Any consecutive twelve (12) month computation period
following an Employee's date of hire by the Employer (or date of rehire
by the Employer, if applicable) or any consecutive twelve (12) month
computation period following an anniversary of such date of hire or
rehire, as the case may be, during which the Employee's employment with
the Employer has been terminated (for at least part of such computation
period) and in which the Employee does not complete more than five
hundred (500) Hours of Service. "Date of hire" or "Date of rehire" shall
mean the first day on which the Employee completes at least one Hour of
Service for the Employee after being hired or rehired.
16.08 CODE: The Internal Revenue Code of 1986, as amended from time to time.
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16.09 COMPENSATION: The amount actually paid by the Employer to an Employee for
the Plan Year as remuneration for services rendered and which is required
to be reported as wages on the Participant's Form W-2. Compensation
shall also include any amount which is contributed by the Employer
pursuant to a salary reduction agreement and which is not includible in
the gross income of the Employee under Code Sections 125, 402(a)(8),
402(h) or 403(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.
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.
If compensation for any prior determination period is taken into account
in determining an employee's benefits accruing in the current Plan Year,
the compensation for that prior determination period is subject to the
OBRA '93 annual compensation limit in effect for that prior determination
period. For this purpose, for determination periods beginning before the
first day of the first plan year beginning on or after January 1, 1994,
the OBRA '93 annual compensation limit is $150,000.
In determining the Compensation of a Participant for purposes of this
limitation for Plan Years prior to January 1, 1997, the rules of Section
414(q)(6) of the Code shall apply, except in applying such rules, the
term "family" shall include only the spouse of the participant and any
lineal descendant of the Participant who have not attained age 19 before
the close of the year. If, as a result of the application of such rules
the adjusted $200,000.00 limitation is exceeded, then (except for
purposes of determining the portion of compensation up to the integration
level if this plan provides for permitted disparity), the limitation
shall be prorated among the affected individuals in proportion to each
such individual's compensation as determined under this section prior to
the application of this limitation.
16.10 CONTRIBUTION PERCENTAGE: The ratio (expressed as a percentage) of the
Participant's Contribution Percentage Amounts to the Participant's
Compensation for the Plan Year (whether or not the Employee was a
Participant for the entire Plan Year).
16.11 CONTRIBUTION PERCENTAGE AMOUNTS: The sum of the Matching Contributions,
and Qualified Matching Contributions (to the extent not taken into
account for purposes of the ADP test) made under the Plan on behalf of
the Participant for the Plan Year. Such Contribution Percentage Amounts
shall not include Matching Contributions that are forfeited either to
correct Excess Aggregate Contributions or because the contributions to
which they relate are Excess Deferrals, Excess Contributions, or Excess
Aggregate Contributions. The Employer may also include Qualified
Nonelective Contributions in the Contribution Percentage Amounts. The
Employer also may elect to use Elective Deferrals in the Contribution
Percentage Amounts so long as the ADP test is met before the Elective
Deferrals are used in the ACP test and continues to be met following the
exclusion of those Elective Deferrals that are used to meet the ACP test.
16.12 DISABLED: A disabled Participant is a Participant who is, in the opinion
of a licensed physician selected or approved by the Plan Administrator:
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(a) unable to engage in any substantial gainful activity by reason of
a physical or mental impairment which can be expected to result in
death or to be of long-continued and indefinite duration; or
(b) has permanently lost, or lost the use of, a member or function of
the body or has been permanently disfigured.
Payments made under this Plan to a Disabled Participant are intended by
the Employer to be payments under an accident and health plan within the
meaning of Code Sections 105(c) and 105(e). Such payments will be
computed with reference to the nature of the injury without regard to the
period the Participant is absent from work.
16.13 EFFECTIVE DATE: January 1, 1993.
16.14 ELECTIVE DEFERRALS: Employer Contributions made to the Plan during the
Plan Year by the Employer, at the election of the Participant, in lieu of
cash compensation and shall include contributions made pursuant to a
salary reduction agreement or other mechanism. With respect to any
taxable year, a Participant's Elective Deferral is the sum of all
Employer Contributions made on behalf of such Participant pursuant to an
election to defer under any qualified CODA as described in Code Section
401(k), any simplified employee pension cash or deferred arrangement as
described in Code Section 402(h)(1)(B), any eligible deferred
compensation plan under Code Section 457, any plan described under Code
501(c)(18), and any employer contributions made on the Participant's
behalf for the purchase of an annuity contract under Code Section 403(b)
pursuant to a salary reduction agreement. Elective Deferrals shall not
include any deferrals properly distributed as excess annual additions.
16.15 ELIGIBLE PARTICIPANT: Any Employee who is eligible to make an Elective
Deferral (if the Employer takes such contributions into account in the
calculation of the Contribution Percentage), or to receive a Matching
Contribution (including forfeitures) or a Qualified Matching
Contribution.
16.16 EMPLOYEE: A person employed by the Employer including leased employees
within the meaning of Code Section 414(n)(5) but excluding:
(a) An independent contractor or a self-employed individual;
(b) An employee who is included in a unit of employees covered by a
collective bargaining agreement between employee representatives
and the Employer, where there is evidence that retirement benefits
were the subject of good faith bargaining between such employee
representatives and the Employer; and
(c) An employee who is a non-resident alien deriving no earned income
from the Employer which constitutes income from sources within the
United States.
Employment shall not be deemed to have been terminated where an employee
is on leave of absence if such leave of absence is granted pursuant to
uniform rules established by the Employer and if all Employees in similar
circumstances are treated alike and the Employee returns to employment
with the Employer within the period of authorized absence. An absence
due to service in the Armed Forces of the United States shall be
considered an authorized leave of absence if the Employee meets all of
the requirements of federal law in order to be entitled to reemployment
and the Employee returns to employment with the Employer within the
period provided by federal law. Notwithstanding any provision of this
Plan to the contrary, contributions, benefits and service credit with
respect to qualified military service will be provided in accordance with
Section 414(u) of the Internal Revenue Code.
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Notwithstanding the foregoing, if such leased employees constitute less
than twenty percent (20%) of the Employer's nonhighly compensated work
force within the meaning of Section 414(n)(1)(c)(ii) of the Code, the
term "Employee" shall not include those leased employees covered by a
plan described in Section 414(n)(5) of the Code.
The term "leased employee" means any person (other than an employee of
the recipient) who pursuant to an agreement between the recipient and any
other person ("leasing organization") has performed services for the
recipient (or for the recipient and related persons determined in
accordance with Section 414(n)(6) of the Code) on a substantially full
time basis for a period of at least one year, and such services are of a
type historically performed by employees in the business field of the
recipient employer. Contributions or benefits provided a leased employee
by the leasing organization which are attributable to services performed
for the recipient employer shall be treated as provided by the recipient
employer.
A leased employee shall not be considered an employee of the recipient
if: (a) such employee is covered by a money purchase pension plan
providing: (1) a nonintegrated employer contribution rate of at least 10
percent of Compensation, as defined in Section 16.09 of the Plan, but
including amounts contributed pursuant to a salary reduction agreement
which are excludible from the employee's gross income tax under Section
125, Section 402(a)(8), Section 402(h) or Section 403(b) of the Code, (2)
immediate participation, and (3) full and immediate vesting; and (b) if
leased employees do not constitute more than 20 percent of the
recipient's nonhighly compensated workforce.
16.17 EMPLOYER/AFFILIATED EMPLOYER: The "Employer" named above, any succeeding
entity and any other entity which adopts the Plan with respect to its
Employees with the consent of such establishing Employer. For purposes
of this Plan, a Participant shall receive credit for all service with the
Employer and with any other entity which adopts the Plan with respect to
its Employees with the consent of the establishing Employer. In
addition, if such an Employee ever becomes a Participant hereunder,
service to be counted for Plan purposes shall include service for the
Employer in a class of Employees otherwise ineligible for participation
under this Plan. For purposes of applying the provisions of Code
Sections 401, 408(k), 410, 411, 415 and 416, all employees of Affiliated
Employers shall be treated as employed by a single employer. An
"Affiliated Employer" shall mean the Employer and any corporation which
is a member of a controlled group of corporations (as defined in Code
Section 416(b)) which includes the Employer, any trade or business
(whether or not incorporated) which is under common control (as defined
in Code Section 414(c) with the Employer;, any organization (whether or
not incorporated) which is a member of an affiliated service group (as
defined
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in Code Section 414(m)) which includes the Employer, and any other entity
required to be aggregated with the Employer pursuant to regulations under
Code Section 414(o). In any case where an Employer is maintaining the
Plan of a predecessor Employer, service for such predecessor shall be
treated as service for the Employer.
16.18 EMPLOYER CONTRIBUTIONS: Contributions made by the Employer to the Plan.
16.19 EXCESS AGGREGATE CONTRIBUTIONS: With respect to any Plan Year, the excess
of:
(a) The aggregate Contribution Percentage Amounts taken into account
in computing the numerator of the Contribution Percentage actually
made on behalf of Highly Compensated Employees for such Plan Year,
over
(b) The minimum Contribution Percentage Amounts permitted by the ACP
test (determined by deducting contributions made on behalf of High
Compensated Employees in order of their Contribution Percentages
beginning with the highest of such percentages).
Such determinations shall be made after first determining Excess Elective
Deferrals pursuant to Section 2.02(f) and then determining Excess
Contributions pursuant to Section 2.02(g).
16.20 EXCESS CONTRIBUTIONS: With respect to any Plan Year, the excess of:
(a) The aggregate amount of Employer Contributions actually taken into
account in computing the ADP of Highly Compensated Employees for
such Plan Year, over
(b) The maximum amount of such contributions permitted by the ADP test
(determined by reducing contributions made on behalf of Highly
Compensated Employees in order of the ADPs, beginning with the
highest of such percentages).
16.21 EXCESS CONTRIBUTION PERCENTAGE: The percentage of Compensation which is
contributed by the Employer under the Plan with respect to that portion
of each Participant's Compensation in excess of the integration level
specified in Section 2.03(b).
16.22 EXCESS ELECTIVE DEFERRALS: Those Elective Deferrals that are includible
in a Participant's gross income under Code Section 402(g) to the extent
such Participant's Elective Deferrals for a taxable year exceed the
dollar limitation under such Code section. Excess Elective Deferrals
shall be treated as annual additions under the Plan, unless such amounts
are distributed no later than the first April 15 following the close of
the Participant's taxable year.
16.23 FAMILY MEMBER: An individual described in Section 16.25 of the Plan.
16.24 FIDUCIARIES: The Employer, the Trustee and the Plan Administrator, but
only to the extent of the specific responsibilities allocated to each of
them under the Plan. Any person or entity may serve in more than one
fiduciary capacity with respect to the Plan.
16.25 HIGHLY COMPENSATED EMPLOYEE: An individual who is either a highly
compensated active Employee or a highly compensated former Employee.
For Plan Years beginning before January 1, 1997, a highly compensated
active Employee includes any Employee who performs service for the
Employer during the determination year and who, during the look-back
year: (a) received compensation from the Employer in excess of $75,000.00
(as adjusted pursuant to Section 415(d) of the Code); (b) received
compensation from the Employer in excess of $50,0000.00 (as adjusted
pursuant to Section 415(d) of the Code) and was a member of the top-paid
group for such year; or (c) was an
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officer of the Employer and received compensation during such year that
is greater than fifty percent (50%) of the dollar limitation in effect
under Section 415(b)(1)(A) of the Code. The term highly compensated
Employee also includes: (a) Employees who are both described in the
preceding sentence if the term "determination year" is substituted for
the term "look-back year" and the Employee is one of the 100 Employees
who received the most compensation from the Employer during the
determination year; and (b) Employees who are five percent (5%) owners at
any time during the look-back year or determination year.
If no officer has satisfied the compensation requirement of (c) above
during either a determination year or look-back year, the highest paid
officer for such year shall be treated as a highly compensated Employee.
For Plan Years beginning after December 31, 1996, a highly compensated
active Employee includes any Employee who performs service for the
Employer during the determination year and who, during the lookback year
(a) received compensation from the Employer in excess of $80,000.00 (as
adjusted pursuant to Section 415(d) of the Code except that the base
period shall be the calendar quarter ending September 30, 1996) or (b)
was a five-percent (5%) owner of the Employer within the meaning of Code
Section 414(q)(2).
For this purpose, the determination year shall be the Plan Year. The
look-back year shall be the twelve-month period immediately preceding the
determination year.
A highly compensated former Employee includes any Employee who separated
from service (or was deemed to have separated) prior to the determination
year, performs no service for the Employer during the determination year,
and was a highly compensated active Employee for either the separation
year or any determination year ending on or after the Employee's 55th
birthday.
For Plan Years beginning before January 1, 1997, if an Employee is,
during a determination year or look-back year, a family member of either
a five percent (5%) owner who is an active or former Employee or a highly
compensated Employee who is one of the 10 most highly compensated
Employees ranked on the basis of compensation paid by the Employer during
such year, then the family member and the five percent (5%) owner or
top-ten highly compensated Employee shall be aggregated. In such case,
the family member and five percent (5%) owner or top-ten highly
compensated Employee shall be treated as a single Employee receiving
compensation and Plan contributions or benefits equal to the sum of such
compensation and contributions or benefits of the family member and five
percent (5%) owner or top-ten highly compensated Employee. For purposes
of this Section, family member includes the spouse, lineal ancestors and
descendants of the Employee or former Employee and the spouses of such
lineal ancestors and descendants.
The determination of who is a highly compensated Employee, including the
determinations of the number and identify of Employees in the top-paid
group, the top 100 Employees, the number of Employees treated as officers
and the compensation that is considered, will be made in accordance with
Section 414(q) of the Code and the regulations thereunder.
16.26 HOUR OF SERVICE: An "Hour of Service" shall include:
(a) Each hour for which an Employee is paid or entitled to payment by
the Employer for the performance of duties during the applicable
computation period. These hours shall be credited to the Employee
for the computation period in which the duties were performed.
(b) Each hour for which an Employee is paid, or entitled to payment by
the Employer, either directly or indirectly, on account of a
period of time during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including disability),
layoff, jury duty, military duty or leave of absence, but
excluding payments under a plan maintained solely for the purpose
of complying with workmen's compensation, unemployment
compensation, or disability insurance laws and also excluding
payments for medical or medically related expenses. No more than
501 Hours of Service shall be credited under this
44
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paragraph (b) or paragraph (c) for any single continuous period
(whether or not such period occurs in a single computation
period).
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same
Hours of Service shall not be credited both under paragraph (a) or
paragraph (b), as the case may be, and under this paragraph (c).
Further, no more than 501 Hours of Service shall be credited for
payment of back pay to the extent it is agreed to or awarded for a
period of time during which an Employee did not or would not have
performed duties. These Hours shall be credited to the Employee
for the computation period or periods to which the award or
agreement pertains rather than the computation period in which the
award, agreement or payment is made.
(d) Hours of Service under paragraphs (a), (b), and (c) shall be
interpreted and credited pursuant to Section 2530.200b-2 of the
Department of Labor Regulations which is incorporated by this
reference.
(e) Effective for Plan Years beginning after December 31, 1984, the
following provision applies for purposes of determining Hours of
Service for participation and vesting purposes in a computation
period. An individual who is absent from work for maternity or
paternity reasons shall receive credit for the Hours of Service
which would otherwise have been credited to such individual but
for such absence, or in any case in which such hours cannot be
determined, 8 Hours of Service per day of such absence. For
purposes of this paragraph (e), an absence from work for maternity
or paternity reasons means an absence (1) by reason of the
pregnancy of the individual, (2) by reason of a birth of a child
of the individual, (3) by reason of the placement of a child with
the individual in connection with the adoption of such child by
such individual, or (4) for purposes of caring for such child for
a period beginning immediately following such birth or placement.
The Hours of Service credited under this paragraph shall be
credited (1) in the computation period in which the absence begins
if the crediting is necessary to prevent the Participant from
receiving credit for less than 501 Hours of Service, or (2) in all
other cases, in the following computation period.
16.27 MATCHING CONTRIBUTIONS: An Employer contribution made to the Plan or any
other defined contribution plan for the Plan Year on behalf of a
Participant on account of the Participant's Elective Deferrals.
16.28 NET PROFIT: The amount of net profit earned by the Employer (or
consolidated net income for an affiliated group of Employers) for the
particular taxable year before making contributions to this Plan other
than Elective Deferrals and prior to deductions for taxes or income but
excluding extraordinary items and as determined in accordance with
generally accepted accounting principles.
16.29 NON-HIGHLY COMPENSATED EMPLOYEE: An Employee of the Employer who is
neither a Highly Compensated Employee nor a Family Member.
16.30 NORMAL RETIREMENT AGE: Normal Retirement Age shall be age 59 1/2.
16.31 PARTICIPANT: An Employee who satisfies the eligibility requirements set
forth in this Plan.
16.32 PLAN: The defined contribution plan and trust known as the Monaco Coach
Corporation 401(k) Plan and Trust as amended from time to time.
16.33 PLAN ADMINISTRATOR: The Employer or any person, committee or entity
appointed by the Employer whose purpose shall be to administer the Plan.
16.34 PLAN LIMITATION YEAR: The twelve (12) month period used for computing the
limitations imposed by Code Section 415. The Employer elects to use the
Employer's fiscal year as the Plan Limitation Year.
45
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16.35 PLAN YEAR: Any fiscal year of the Employer which ends on a date
subsequent to the Effective Date.
16.36 QUALIFIED MATCHING CONTRIBUTIONS: Matching Contributions which are
subject to the distribution and nonforfeitability requirements under Code
Section 401(k) when made.
16.37 QUALIFIED NONELECTIVE CONTRIBUTIONS: Contributions (other than Matching
Contributions or Qualified Matching Contributions) made by the Employer
and allocated to Participants' accounts that the Participants may not
elect to receive in cash until distributed from the Plan; that are
nonforfeitable when made; and that are distributable only in accordance
with the distribution provisions that are applicable to Elective
Deferrals and Qualified Matching Contributions.
16.38 TRUSTEE: The "Trustee" as named above and any successors.
16.39 YEAR OF SERVICE: A twelve (12) month period during which the Employee has
not less than 1,000 Hours of Service. The initial eligibility
computation period shall be the twelve (12) consecutive month period
beginning with the employment commencement date. If an Employee fails to
complete 1,000 Hours of Service in the twelve (12) consecutive months
beginning with the employment commencement date, the eligibility
computation period shall be the Plan Year which includes the first
anniversary of the employment commencement date, and, where additional
eligibility computation periods are necessary, succeeding Plan Years. An
Employee's employment commencement date shall be deemed to be the day on
which the Employee first completes an Hour of Service with the Employer.
Under no circumstances shall any of the foregoing definitions be interpreted or
construed in a manner which shall be inconsistent with ERISA or the Code or any
valid regulations issued under them.
46
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IN WITNESS WHEREOF, the duly authorized officers of the Employer
and the Trustee have signed this instrument on the 12th day of March, 1997,
effective the 4th day of March, 1996.
MONACO COACH CORPORATION
By: /s/ Richard E. Bond
-----------------------------------
Title: Vice President
-------------------------------
KEY TRUST COMPANY OF INDIANA, N.A.
By: /s/ Kathy An Reinhardt
-----------------------------------
Title: Trust Officer
-------------------------------
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
September 28, 1998
We consent to the incorporation by reference in this Registration Statement
on Form S-8 (File No._____________________) of Monaco Coach Corporation, of
our report dated January 30, 1998, except for stock split information in Note
1, as to which the date is March 16, 1998, on our audit of the consolidated
financial statements and financial statement schedules of Monaco Coach
Corporation which report is included in the Annual Report on Form 10-K of
Monaco Coach Corporation for the year ended January 3, 1998.
/s/ PricewaterhouseCoopers LLP
- ----------------------------------
PricewaterhouseCoopers LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF COUNSEL
September 25, 1998
Monaco Coach Corporation
91320 Industrial Way
Coburg, OR 97408
Re: Consent of Wilson Sonsini Goodrich & Rosati, P.C.
Ladies and Gentlemen:
We consent to the use of our name wherever appearing in the Registration
Statement, including any Prospectus constituting a part thereof, and any
amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
-------------------------------------
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EXHIBIT 99.1
DEPARTMENT OF TREASURY
INTERNAL REVENUE SERVICE
DISTRICT DIRECTOR
P.O. BOX 2508
CINCINNATI, OH 45201 Employer Identification Number:
35-1880244
Date: July 3, 1997
DLN:
MONACO COACH CORPORATION 17007077106007
C/O RICHARD B. URDA JR Person to Contact:
503 NORWEST BANK BUILDING CINDY PERRY
SOUTH BEND, IN 46601 Contact Telephone Number:
(513) 241-5199
Plan Name:
MONACO COACH CORPORATION 401K
PLAN AND TRUST
Plan Number: 001
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend on
its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some events that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. it is not a determination regarding the effect of other federal
or local statutes.
This determination letter is applicable for the amendment(s) adopted on
3/12/97.
This plan has been mandatorily disaggregated, permissively aggregated or
restructed to satisfy the nondiscrimination requirements.
This plan satisfies the nondiscrimination in amount requirement of section
1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based safe
harbor described in the regulations.
This plan satisfies the nondiscriminatory current availability requirements
of section 1.401(a)(4)-4(b) of the regulations with respect to those benefits,
rights and features that are currently available to all employees in the plan's
coverage group. For this purpose, the plan's coverage group consists of those
employees treated as currently benefitting for purposes of demonstrating that
the plan satisfied the minimum coverage requirements of section 401(b) of the
Code.
<PAGE>
Except as otherwise specified this letter may not be relied upon with
respect to whether the plan satisfies the qualification requirements as amended
by the Uruguay Round Agreements Act, Pub.L. 103-465 and by the Small Business
Job Protection Act of 1996 (SBJPA), Pub.L. 104-108, other than the requirements
of Code Section 401(a)(26).
This letter considers the amendments required by the Tax Reform Act of
1986, except as otherwise specified in this letter.
We have sent a copy of this letter to your representative as indicated in
the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
