<PAGE>
As filed with the Securities and Exchange Commission
on June 24, 1996.
Registration No. 33-
______________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________________
GREENPOINT FINANCIAL CORP.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 06-1379001
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
41-60 Main Street
Flushing, New York 11355
(Address of Principal Executive Offices)
GreenPoint Bank 401(k) Savings Plan
(Full Title of the Plan)
__________________
Howard C. Bluver, Esq.
Senior Vice President, General Counsel and Secretary
GREENPOINT FINANCIAL CORP.
41-60 Main Street
Flushing, New York 11355
(718) 670-7655
(Name, Address and Telephone Number, Including Area Code, of
Agent for Service)
Copy to:
Bruce D. Senzel, Esq.
One Battery Park Plaza
Seward & Kissel
New York, New York 10004
(212) 574-1200
<PAGE>
CALCULATION OF REGISTRATION FEE
______________________________________________________________
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered Per Share(2) Offering Price(2) Registration Fee
<S>
<C> <C> <C> <C>
Common Stock, par
value $.01 per share 1,000,000 $28.6875 $28,687,500 $9,892.55
shares(1)
Interests in the Plan (3) N/A N/A N/A
1. Plus such indeterminate number of shares as may be issued to prevent dilution resulting from stock
splits, stock dividends or similar transactions in accordance with Rules 416(a) and (b) under the
Securities Act of 1933, as amended (the "Securities Act").
2. Pursuant to Rule 457(h) under the Securities Act, the proposed maximum aggregate offering price and
the amount of registration fee are based on the maximum number of the Registrant's shares issuable
under the Plan, and the proposed maximum offering price per share is estimated on the basis of the
average of the high and low sales prices of the Registrant's shares as reported for New York Stock
Exchange composite transactions on June 20, 1996.
3. Pursuant to Rule 416(c) under the Securities Act, this Registration Statement also covers an
indeterminate amount of interests to be offered pursuant to the Plan.
______________________________________________________________
</TABLE>
<PAGE>
PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS1
Item 1. Plan Information.
Item 2. Registration Information and Employee Plan Annual
Information.
_________________________________________________________________
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents filed by GREENPOINT FINANCIAL
CORP. (the "Corporation" or the "Registrant") with the Securities
and Exchange Commission (the "Commission") are hereby
incorporated by reference herein:
(a) The Corporation's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995 and the Registrant's
Annual Report to Shareholders for the fiscal year ended
December 31, 1995;
(b) The Corporation's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1996;
(c) The Corporation's Report on Form 8-K dated May 13,
1996;
(d) The Corporation's Report on Form 8-K dated
March 12, 1996
(e) The Corporation's Report on Form 8-K/A dated
March 12, 1996; and
(f) The "Description of Registrant's Securities to be
Registered" contained in the Corporation's Registration Statement
on Form 8-A dated September 27, 1993 filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
In addition, all documents subsequently filed by each of
the Corporation and the GreenPoint Bank 401(k) Savings Plan (the
"Plan") pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall be
_________________________
1. This information is not required to be included in, and is
not incorporated by reference in, this Registration
Statement.
2
<PAGE>
deemed to be incorporated by reference in this Registration
Statement and to be part hereof from their respective dates of
filing (such documents, and the documents enumerated above, being
hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained
herein or in any other subsequently filed Incorporated Document
modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Howard C. Bluver, who is giving an opinion regarding the
validity of the securities being registered hereby, is Senior
Vice President, General Counsel and Secretary of the Corporation.
As of the date of this Registration Statement, the fair market
value of securities of the Registrant, including options,
beneficially owned by Mr. Bluver exceeds $50,000 and,
accordingly, such interest is deemed to represent a substantial
interest in the Registrant.
Item 6. Indemnification of Directors and Officers.
The Certificate of Incorporation of the Corporation (the
"Certificate") includes provisions for the indemnification of
directors and officers. Sections A, B, D and E of Article TENTH
of the Certificate provide as follows:
A. Each person who was or is made a party or is threatened
to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is
or was a Director or an Officer of the Corporation or is
or was serving at the request of the Corporation as a
Director, Officer, employee or agent of another
corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"),
whether the basis of such proceeding is alleged action
in an official capacity as a Director, Officer, employee
or agent or in any other capacity while serving as a
Director, Officer, employee or agent, shall be
3
<PAGE>
indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Corporation
to provide broader indemnification rights than such law
permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however,
that, except as provided in Section C hereof with
respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any
such indemnitee in connection with a proceeding (or part
thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation.
B. The right to indemnification conferred in Section A of
this Article TENTH shall include the right to be paid by
the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law
requires, an advancement of expenses incurred by an
indemnitee in his or her capacity as a Director or
Officer (and not in any other capacity in which service
was or is rendered by such indemnitee, including,
without limitation, services to an employee benefit
plan) shall be made only upon delivery to the
Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to
repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there
is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to
be indemnified for such expenses under this Section or
otherwise. The rights to indemnification and to the
advancement of expenses conferred in Sections A and B of
this Article TENTH shall be contract rights and such
rights shall continue as to an indemnitee who has ceased
to be a Director, Officer, employee or agent and shall
inure to the benefit of the indemnitee's heirs,
executors and administrators.
D. The rights to indemnification and to the advancement of
expense conferred in this Article TENTH shall not be
exclusive of any other right which any person may have
or hereafter acquire under any statute, the
4
<PAGE>
Corporation's Certificate of Incorporation, Bylaws,
agreement, vote of stockholders or Disinterested
Directors or otherwise.
E. The Corporation may maintain insurance, at its expense,
to protect itself and any Director, Officer, employee or
agent of the Corporation or Subsidiary or Affiliate or
another corporation, partnership, joint venture, trust
or other enterprise against any expense, liability or
loss, whether or not the Corporation would have the
power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation
Law.
Sections 145(a) to (g) of the Delaware General
Corporation Law provide as follows:
(a) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any
threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right
of the corporation) by reason of the fact that he is or
was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be
in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his
conduct was unlawful.
(b) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a
5
<PAGE>
director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation
as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of
the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable
to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action
or suit was brought shall determine upon application
that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits
or otherwise in defense of any action, suit or
proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of
this section (unless ordered by a court) shall be made
by the corporation only as authorized in the specific
case upon a determination that indemnification of the
director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard
of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by a
majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a
quorum, or (2) if there are no such directors, or if
such directors so direct, by independent legal counsel
in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal,
administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of
the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall
6
<PAGE>
ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this
section. Such expenses (including attorneys' fees)
incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the board of
directors deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of
this section shall not be deemed exclusive of any other
rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his
official capacity and as to action in another capacity
while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation
as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation
would have the power to indemnify him against such
liability under this section.
The Registrant maintains an insurance policy insuring
the directors and officers of the Corporation against certain
acts and omissions while acting in their official capacities.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The Registrant hereby undertakes to submit the Plan to
the Internal Revenue Service in a timely manner and will make all
changes required by the Internal Revenue Service in order to
qualify the Plan.
Exhibit Number Description
4 GreenPoint Bank 401(k) Savings Plan
5 Opinion of Howard C. Bluver, Esq. Senior Vice
President, General Counsel and Secretary of
the Registrant
7
<PAGE>
24.1 Consent of Howard C. Bluver, Esq. Senior Vice
President, General Counsel and Secretary of
the Registrant (included in Exhibit 5)
24.2 Consent of KPMG Peat Marwick LLP
25 Powers of Attorney (included in the signature
pages to this Registration Statement)
Item 9. Undertakings.
(a) The undersigned Registrant and the Plan hereby
undertake:
(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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent post-
effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in
the information set forth in the Registration
Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed
in this 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 information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the
Registrant or the Plan pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
8
<PAGE>
(3) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act, and each filing of
the Plan's annual report pursuant to Section 15(d) of the
Exchange Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act 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 Commission such indemnification is against
public policy as expressed in the Securities 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 Securities Act and will be governed by
the final adjudication of such issue.
9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, GREENPOINT FINANCIAL CORP. 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 Flushing, New York, on the 24th day
of June, 1996.
GREENPOINT FINANCIAL CORP.
By:/s/Thomas S. Johnson
________________________
Thomas S. Johnson
Chairman of the Board,
President and Chief
Executive Officer
Each person whose individual signature appears below
hereby makes, constitutes and appoints Thomas S. Johnson to sign
for such person and in such person's name and capacity indicated
below, any and all amendments to this Registration Statement,
including any and all post-effective amendments.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the
following persons in the capacities and on the date indicated:
Name Title Date
/s/ Thomas S. Johnson Chairman of the June 24, 1996
_________________________ Board, President
Thomas S. Johnson and Chief Executive
Officer
/s/ Charles P. Richardson Executive Vice June 24, 1996
_________________________ President and Chief
Charles P. Richardson Financial Officer
(Principal Financial
Officer)
/s/ Mary Beth Farrell Vice President June 24, 1996
_________________________ and Comptroller
Mary Beth Farrell
10
<PAGE>
/s/ Innis O'Rourke, Jr. Director June 24, 1996
_________________________
Innis O'Rourke, Jr.
/s/ Bernard S. Berman Director June 24, 1996
_________________________
Bernard S. Berman
/s/ Wilfred O. Uhl Director June 24, 1996
_________________________
Wilfred O. Uhl
/s/ Robert M. McLane Director June 24, 1996
_________________________
Robert M. McLane
/s/ Dan F. Huebner Director June 24, 1996
_________________________
Dan F. Huebner
/s/ Robert P. Quinn Director June 24, 1996
_________________________
Robert P. Quinn
/s/ Robert F. Vizza Director June 24, 1996
_________________________
Robert F. Vizza
/s/ William M. Jackson Director June 24, 1996
_________________________
William M. Jackson
/s/ Jules Zimmerman Director June 24, 1996
_________________________
Jules Zimmerman
/s/ Charles B. McQuade Director June 24, 1996
_________________________
Charles B. McQuade
11
<PAGE>
/s/ Alvin N. Puryear Director June 24, 1996
_________________________
Alvin N. Puryear
/s/ Edward C. Bessey Director June 24, 1996
_________________________
Edward C. Bessey
/s/ Susan J. Kropf Director June 24, 1996
_________________________
Susan J. Kropf
/s/ Edward C. Schmults Director June 24, 1996
_________________________
Edward C. Schmults
12
<PAGE>
Pursuant to the requirements of the Securities Act of
1933, GREENPOINT BANK, the Administrator of the Plan, has duly
caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in Flushing, New
York, on the 24th day of June, 1996
GREENPOINT BANK
By: /s/ Thomas S. Johnson
_____________________
Thomas S. Johnson
13
<PAGE>
EXHIBIT INDEX
______________
Exhibit
Number Description
_______ ___________
4 GreenPoint Bank 401(k) Savings Plan
5 Opinion of Howard C. Bluver, Esq.,
Senior Vice President, General Counsel
and Secretary of the Registrant
24.1 Consent of Howard C. Bluver, Esq.,
Senior Vice President, General Counsel
and Secretary of the Registrant
(included in Exhibit 5)
24.2 Consent of KPMG Peat Marwick LLP
25 Powers of Attorney (included in the
signature pages to this Registration
Statement)
14
00995003.AD8
<PAGE>
GREENPOINT BANK 401(K) SAVINGS PLAN
<PAGE>
TABLE OF CONTENTS
PREAMBLE
ARTICLE I
DEFINITIONS
1.1 Plan Definitions................................... 2
1.2 Interpretation..................................... 7
ARTICLE II
SERVICE
2.1 Definitions........................................ 9
2.2 Crediting of Hours of Service...................... 10
2.3 Hours of Service Equivalencies..................... 11
2.4 Limitations on Crediting of Hours of Service....... 12
2.5 Department of Labor Rules.......................... 12
2.6 Years of Eligibility Service....................... 12
2.7 Crediting of Continuous Service.................... 13
2.8 Vesting Service.................................... 13
2.9 Crediting of Hours of Service with Respect to
Short Plan Year.................................. 13
2.10 Crediting of Service on Transfer or Amendment...... 14
ARTICLE III
ELIGIBILITY
3.1 Eligibility........................................ 16
3.2 Transfers of Employment............................ 16
3.3 Reemployment....................................... 16
3.4 Notification Concerning New Eligible Employees..... 16
3.5 Effect and Duration................................ 16
ARTICLE IV
TAX-DEFERRED CONTRIBUTIONS
4.1 Tax-Deferred Contributions......................... 18
4.2 Amount of Tax-Deferred Contributions............... 18
4.3 Changes in Reduction Authorization................. 18
4.4 Suspension of Tax-Deferred Contributions........... 19
4.5 Resumption of Tax-Deferred Contributions........... 19
4.6 Delivery of Tax-Deferred Contributions............. 19
4.7 Vesting of Tax-Deferred Contributions.............. 19
<PAGE>
ARTICLE V
AFTER-TAX, TRANSFER AND ROLLOVER CONTRIBUTIONS
5.1 No After-Tax Contributions......................... 20
5.2 Transfer Contributions............................. 20
5.3 Rollover Contributions............................. 21
5.4 Vesting of Rollover Contributions.................. 21
ARTICLE VI
EMPLOYER CONTRIBUTIONS
6.1 Contribution Period................................ 22
6.2 Qualified Nonelective Contributions................ 22
6.3 Allocation of Qualified Nonelective Contributions.. 22
6.4 Matching Contributions............................. 22
6.5 Allocation of Matching Contributions............... 23
6.6 Verification of Amount of Employer Contributions
by the Sponsor................................... 24
6.7 Payment of Employer Contributions.................. 24
6.8 Eligibility to Participate in Allocation........... 24
6.9 Vesting of Employer Contributions.................. 25
6.10 Election of Former Vesting Schedule................ 26
ARTICLE VII
LIMITATIONS ON CONTRIBUTIONS
7.1 Definitions........................................ 27
7.2 Code Section 402(g) Limit.......................... 30
7.3 Distribution of Excess Deferrals................... 31
7.4 Limitation on Tax-Deferred Contributions of
Highly Compensated Employees..................... 32
7.5 Distribution of Excess Tax-Deferred Contributions.. 33
7.6 Limitation on Matching Contributions of Highly
Compensated Employees............................ 34
7.7 Forfeiture or Distribution of Excess Contribu-
tions............................................ 36
7.8 Multiple Use Limitation............................ 36
7.9 Determination of Income or Loss.................... 37
7.10 Code Section 415 Limitations on Crediting of
Contributions and Forfeitures.................... 37
7.11 Coverage Under Other Qualified Defined Contribu-
tion Plan........................................ 38
7.12 Coverage Under Qualified Defined Benefit Plan...... 39
7.13 Scope of Limitations............................... 39
ARTICLE VIII
TRUST FUNDS AND SEPARATE ACCOUNTS
8.1 General Fund....................................... 40
8.2 Investment Funds................................... 40
8.3 Loan Investment Fund............................... 40
<PAGE>
8.4 Income on Trust.................................... 40
8.5 Separate Accounts.................................. 41
8.6 Sub-Accounts....................................... 41
ARTICLE IX
LIFE INSURANCE CONTRACTS
9.1 No Life Insurance Contracts........................ 42
ARTICLE X
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
10.1 Future Contribution Investment Elections........... 43
10.2 Deposit of Contributions........................... 43
10.3 Election to Transfer Between Funds................. 43
10.4 404(c) Plan........................................ 44
10.5 Election Restrictions.............................. 44
ARTICLE XI
CREDITING AND VALUING SEPARATE ACCOUNTS
11.1 Crediting Separate Accounts........................ 45
11.2 Valuing Separate Accounts.......................... 45
11.3 Plan Valuation Procedures.......................... 45
11.4 Finality of Determinations......................... 46
11.5 Notification....................................... 46
ARTICLE XII
LOANS
12.1 Application for Loan............................... 47
12.2 Reduction of Account Upon Distribution............. 47
12.3 Requirements to Prevent a Taxable Distribution..... 48
12.4 Administration of Loan Investment Fund............. 48
12.5 Default............................................ 49
12.6 Special Rules Applicable to Loans.................. 49
ARTICLE XIII
WITHDRAWALS WHILE EMPLOYED
13.1 Withdrawals of Barclays Plan Transferred
After-Tax Contributions and Barclays Plan
Transferred Deductible Employee Contributions.... 51
13.2 Withdrawals of Incentive Savings Plan
Transferred After-Tax Contributions.............. 51
13.3 Withdrawals of Rollover Contributions.............. 51
13.4 Withdrawals of Barclays Plan Transferred
Rollover Contributions........................... 51
<PAGE>
13.5 Withdrawals of Incentive Savings Plan
Transferred Rollover Contributions............... 51
13.6 Withdrawals of Employer Contributions.............. 52
13.7 Withdrawals of Barclays Plan Transferred
Employer Contributions........................... 52
13.8 Withdrawals of Incentive Savings Plan
Transferred Employer Contributions............... 53
13.9 Withdrawals of Tax-Deferred Contributions.......... 54
13.10 Withdrawals of Barclays Plan Transferred
Tax-Deferred Contributions....................... 55
13.11 Limitations on Withdrawals Other than Hardship
Withdrawals...................................... 55
13.12 Limitations on Withdrawals of Barclays Plan
Transferred Contributions Other than
Hardship Withdrawals............................. 55
13.13 Limitations on Withdrawals of Incentive
Savings Plan Transferred Contributions........... 56
13.14 Conditions and Limitations on Hardship
Withdrawals...................................... 57
13.15 Order of Withdrawal from a Participant's
Sub-Accounts..................................... 58
ARTICLE XIV
TERMINATION OF EMPLOYMENT AND SETTLEMENT DATE
14.1 Termination of Employment and Settlement Date...... 59
14.2 Separate Accounting for Non-Vested Amounts......... 59
14.3 Disposition of Non-Vested Amounts.................. 59
14.4 Recrediting of Forfeited Amounts................... 60
ARTICLE XV
DISTRIBUTIONS
15.1 Distributions to Participants...................... 62
15.2 Distributions to Beneficiaries..................... 62
15.3 Cash Outs and Participant Consent.................. 63
15.4 Required Commencement of Distribution.............. 63
15.5 Reemployment of a Participant...................... 64
15.6 Restrictions on Alienation......................... 64
15.7 Facility of Payment................................ 64
15.8 Inability to Locate Payee.......................... 64
15.9 Distribution Pursuant to Qualified Domesti4
Relations Orders................................. 65
ARTICLE XVI
FORM OF PAYMENT
16.1 Normal Form of Payment............................. 66
16.2 Optional Form of Payment........................... 66
16.3 Change of Option Election.......................... 66
16.4 Direct Rollover.................................... 66
<PAGE>
16.5 Notice Regarding Forms of Payment.................. 67
16.6 Reemployment....................................... 68
16.7 Distribution in the Form of Employer Stock......... 68
ARTICLE XVII
BENEFICIARIES
17.1 Designation of Beneficiary......................... 69
17.2 Spousal Consent Requirements....................... 69
ARTICLE XVIII
ADMINISTRATION
18.1 Authority of the Sponsor........................... 70
18.2 Action of the Sponsor.............................. 70
18.3 Claims Review Procedure............................ 71
18.4 Qualified Domestic Relations Orders................ 72
18.5 Indemnification.................................... 72
18.6 Actions Binding.................................... 72
ARTICLE XIX
AMENDMENT AND TERMINATION
19.1 Amendment.......................................... 73
19.2 Limitation on Amendment............................ 73
19.3 Termination........................................ 73
19.4 Reorganization..................................... 74
19.5 Withdrawal of an Employer.......................... 75
ARTICLE XX
ADOPTION BY OTHER ENTITIES
20.1 Adoption by Related Companies...................... 76
20.2 Effective Plan Provisions.......................... 76
ARTICLE XXI
MISCELLANEOUS PROVISIONS
21.1 No Commitment as to Employment..................... 77
21.2 Benefits........................................... 77
21.3 No Guarantees...................................... 77
21.4 Expenses........................................... 77
21.5 Precedent.......................................... 77
21.6 Duty to Furnish Information........................ 77
21.7 Withholding........................................ 78
21.8 Merger, Consolidation, or Transfer of Plan Assets.. 78
21.9 Back Pay Awards.................................... 78
21.10 Condition on Employer Contributions................ 79
21.11 Return of Contributions to an Employer............. 79
21.12 Validity of Plan................................... 79
21.13 Trust Agreement.................................... 79
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21.14 Parties Bound...................................... 80
21.15 Application of Certain Plan Provisions............. 80
21.16 Leased Employees................................... 80
21.17 Transferred Funds.................................. 81
21.18 Transition Period.................................. 81
ARTICLE XXII
TOP-HEAVY PROVISIONS
22.1 Definitions........................................ 82
22.2 Applicability...................................... 84
22.3 Minimum Employer Contribution...................... 85
22.4 Adjustments to Section 415 Limitations............. 85
22.5 Accelerated Vesting................................ 86
ARTICLE XXIII
EFFECTIVE DATE
23.1 Effective Date..................................... 87
<PAGE>
PREAMBLE
The Plan established hereunder, to be known as the GreenPoint
Bank 401(k) Savings Plan, is intended to qualify as a
profit-sharing plan under Section 401(a) of the Code, and
includes a cash or deferred arrangement that is intended to
qualify under Section 401(k) of the Code. The Plan is
established effective July 1, 1996 and shall be maintained for
the exclusive benefit of eligible employees and their
beneficiaries. Effective July 1, 1996, the GreenPoint Bank
Incentive Savings Plan is merged with and into this Plan.
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ARTICLE I
DEFINITIONS
1.1 Plan Definitions
As used herein, the following words and phrases have the meanings
hereinafter set forth, unless a different meaning is plainly
required by the context:
The "Administrator" means the Sponsor.
An "After-Tax Contribution" means any after-tax employee
contribution made by a Participant as may be permitted under
Article V.
An "Barclays Plan Transferred Contribution" means any amount
transferred to the Plan in accordance with the provisions of
Section 5.2(a).
The "Beneficiary" of a Participant means the person or persons
entitled under the provisions of the Plan to receive distribution
hereunder in the event the Participant dies before receiving
distribution of his entire interest under the Plan.
The "Code" means the Internal Revenue Code of 1986, as amended
from time to time. Reference to a section of the Code includes
such section and any comparable section or sections of any future
legislation that amends, supplements, or supersedes such section.
The "Compensation" of a Participant for any period means the
wages as defined in Section 3401(a) of the Code, determined
without regard to any rules that limit compensation included in
wages based on the nature or location of the employment or
services performed, and all other payments made to him for such
period for services as an Employee for which his Employer is
required to furnish the Participant a written statement under
Sections 6041(d), 6051(a)(3), and 6052 of the Code, and excluding
reimbursements or other expense allowances, fringe benefits,
moving expenses, deferred compensation, Employer-provided
incentive compensation and welfare benefits, but determined prior
to any exclusions for amounts deferred under Section 125,
402(e)(3), 402(h)(1)(B), 403(b), or 457(b) of the Code or for
certain contributions described in Section 414(h)(2) of the Code
that are picked up by the employing unit and treated as employer
contributions.
Notwithstanding the foregoing, Compensation shall not include the
following:
* bonuses.
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* overtime pay.
* commissions.
* the value of any qualified or non-qualified stock
option granted to the Participant by his Employer to
the extent such value is includible in the
Participant's taxable income.
* any payments not considered regular base pay.
In no event, however, shall the Compensation of a Participant
taken into account under the Plan for any Plan Year exceed
$150,000 (subject to adjustment annually as provided in Section
401(a)(17)(B) and Section 415(d) of the Code; provided, however,
that the dollar increase in effect on January 1 of any calendar
year, if any, is effective for Plan Years beginning in such
calendar year). If the Compensation of a Participant is
determined over a period of time that contains fewer than 12
calendar months, then the annual compensation limitation
described above shall be adjusted with respect to that
Participant by multiplying the annual compensation limitation in
effect for the Plan Year by a fraction the numerator of which is
the number of full months in the period and the denominator of
which is 12; provided, however, that no proration is required for
a Participant who is covered under the Plan for less than one
full Plan Year if the formula for allocations is based on
Compensation for a period of at least 12 months. In determining
the Compensation, for purposes of applying the annual
compensation limitation described above, of a Participant who is
a five percent owner or among the ten Highly Compensated
Employees receiving the greatest Compensation for the Plan Year,
the Compensation of the Participant's spouse and of his lineal
descendants who have not attained age 19 as of the close of the
Plan Year shall be included as Compensation of the Participant
for the Plan Year. If as a result of applying the family
aggregation rule described in the preceding sentence the annual
compensation limitation would be exceeded, the limitation shall
be prorated among the affected family members in proportion to
each member's Compensation as determined prior to application of
the family aggregation rules.
A "Contribution Period" means the period specified in Article VI
for which Employer Contributions shall be made.
An "Eligible Employee" means any Employee who has met the
eligibility requirements of Article III to have Tax-Deferred
Contributions made to the Plan on his behalf.
The "Eligibility Service" of an employee means the period or
periods of service credited to him under the provisions of
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Article II for purposes of determining his eligibility to
participate in the Plan as may be required under Article III or
Article VI.
An "Employee" means any employee of an Employer other than a
leased employee or an employee who is covered by a collective
bargaining agreement that does not specifically provide for
coverage under the Plan.
An "Employer" means the Sponsor and any entity which has adopted
the Plan as may be provided under Article XX, including
GreenPoint Mortgage Corp.
An "Employer Contribution" means the amount, if any, that an
Employer contributes to the Plan as may be provided under
Article VI or Article XXII.
An "Enrollment Date" means the first day of each calendar month
of the Plan Year.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time. Reference to a section of
ERISA includes such section and any comparable section or
sections of any future legislation that amends, supplements, or
supersedes such section.
The "General Fund" means a Trust Fund maintained by the Trustee
as required to hold and administer any assets of the Trust that
are not allocated among any separate Investment Funds as may be
provided in the Plan or the Trust Agreement. No General Fund
shall be maintained if all assets of the Trust are allocated
among separate Investment Funds.
A "Highly Compensated Employee" means an Employee or former
Employee who is a highly compensated active employee or highly
compensated former employee as defined hereunder.
A "highly compensated active employee" includes any Employee who
performs services for an Employer during the determination year
and who (i) was a five percent owner at any time during the
determination year or the look back year, (ii) received
compensation from an Employer during the look back year in excess
of $75,000 (subject to adjustment annually at the same time and
in the same manner as under Section 415(d) of the Code),
(iii) was in the top paid group of employees for the look back
year and received compensation from an Employer during the look
back year in excess of $50,000 (subject to adjustment annually at
the same time and in the same manner as under Section 415(d) of
the Code), (iv) was an officer of an Employer during the look
back year and received compensation during that year in excess of
50 percent of the dollar limitation in effect for that year under
4
<PAGE>
Section 415(b)(1)(A) of the Code or, if no officer received
compensation in excess of that amount for the look back year or
the determination year, received the greatest compensation for
the look back year of any officer, or (v) was one of the 100
employees paid the greatest compensation by an Employer for the
determination year and would be described in (ii), (iii), or (iv)
above if the term "determination year" were substituted for "look
back year".
A "highly compensated former employee" includes any Employee who
separated from service from an Employer and all Related Companies
(or is deemed to have separated from service from an Employer and
all Related Companies) prior to the determination year, performed
no services for an 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
date the Employee attains age 55.
The determination of who is a Highly Compensated Employee
hereunder, including determinations as to the number and identity
of employees in the top paid group, the 100 employees receiving
the greatest compensation from an Employer, the number of
employees treated as officers, and the compensation considered,
shall be made in accordance with the provisions of Section 414(q)
of the Code and regulations issued thereunder. For purposes of
this definition, the following terms have the following meanings:
(a) The "determination year" means the Plan Year or, if the
Administrator makes the election provided in paragraph (b)
below, the period of time, if any, which extends beyond
the look back year and ends on the last day of the Plan
Year for which testing is being performed (the "lag
period"). If the lag period is less than 12 months long,
the dollar amounts specified in (ii), (iii), and (iv)
above shall be prorated based upon the number of months in
the lag period.
(b) The "look back year" means the 12-month period immediately
preceding the determination year; provided, however, that
the Administrator may elect instead to treat the calendar
year ending with or within the determination year as the
"look back year".
An "Hour of Service" with respect to a person means each hour, if
any, that may be credited to him in accordance with the
provisions of Article II.
An "Incentive Savings Plan Transferred Contribution" means any
amount transferred to the Plan in accordance with the provisions
of Section 5.2(b).
5
<PAGE>
An "Investment Fund" means any separate investment Trust Fund
maintained by the Trustee as may be provided in the Plan or the
Trust Agreement or any separate investment fund maintained by the
Trustee, to the extent that there are Participant Sub-Accounts
under such funds, to which assets of the Trust may be allocated
and separately invested.
A "Matching Contribution" means any Employer Contribution made to
the Plan on account of a Participant's Tax-Deferred Contributions
as provided in Article VI.
The "Normal Retirement Date" of an Employee means the later of
the date he attains age 65 or the fifth anniversary of the date
he commenced employment with an Employer or a Related Company.
A "Participant" means any person who has a Separate Account in
the Trust.
The "Plan" means GreenPoint Bank 401(k) Savings Plan, as from
time to time in effect.
A "Plan Year" means the period beginning July 1, 1996 and ending
December 31, 1996, and each 12-consecutive-month period
thereafter.
A "Predecessor Employer" means (i) BarclaysAmerican/Mortgage
Corporation, but only with respect to Employees who were employed
by such entity on July 7, 1995 and who became employed by the
Employer or a Related Company on July 8, 1995 and (ii) Home
Savings of America, FSB, but only with respect to Employees who
were employed by such entity on September 22, 1995 and who became
employed by the Employer or a Related Company on September 23,
1995.
A "Qualified Matching Contribution" means any Matching
Contribution made to the Plan as provided in Article VI that may
be taken into account to satisfy the limitations on contributions
by Highly Compensated Employees under Article VII.
A "Qualified Nonelective Contribution" means any Employer
Contribution made to the Plan as provided in Article VI that may
be taken into account to satisfy the limitations on contributions
by Highly Compensated Employees under Article VII, except
Qualified Matching Contributions.
A "Related Company" means any corporation or business, other than
an Employer, which would be aggregated with an Employer for a
relevant purpose under Section 414 of the Code.
A "Rollover Contribution" means any rollover contribution to the
Plan made by a Participant as may be permitted under Article V.
6
<PAGE>
A "Separate Account" means the account maintained by the Trustee
in the name of a Participant that reflects his interest in the
Trust and any Sub-Accounts maintained thereunder, as provided in
Article VIII.
The "Settlement Date" of a Participant means the date on which a
Participant's interest under the Plan becomes distributable in
accordance with Article XV.
The "Sponsor" means GreenPoint Bank, and any successor thereto.
A "Sub-Account" means any of the individual sub-accounts of a
Participant's Separate Account that is maintained as provided in
Article VIII.
A "Tax-Deferred Contribution" means the amount contributed to the
Plan on a Participant's behalf by his Employer in accordance with
his reduction authorization executed pursuant to Article IV.
The "Trust" means the trust maintained by the Trustee under the
Trust Agreement.
The "Trust Agreement" means the agreement entered into between
the Sponsor and the Trustee relating to the holding, investment,
and reinvestment of the assets of the Plan, together with all
amendments thereto.
The "Trustee" means the trustee or any successor trustee which at
the time shall be designated, qualified, and acting under the
Trust Agreement. The Sponsor may designate a person or persons
other than the Trustee to perform any responsibility of the
Trustee under the Plan, other than trustee responsibilities as
defined in Section 405(c)(3) of ERISA, and the Trustee shall not
be liable for the performance of such person in carrying out such
responsibility except as otherwise provided by ERISA. The term
Trustee shall include any delegate of the Trustee as may be
provided in the Trust Agreement.
A "Trust Fund" means any fund maintained under the Trust by the
Trustee.
A "Valuation Date" means the date or dates designated by the
Sponsor and communicated in writing to the Trustee for the
purpose of valuing the General Fund and each Investment Fund and
adjusting Separate Accounts and Sub-Accounts hereunder, which
dates need not be uniform with respect to the General Fund, each
Investment Fund, Separate Account, or Sub-Account; provided,
however, that the General Fund and each Investment Fund shall be
valued and each Separate Account and Sub-Account shall be
adjusted no less often than once annually.
7
<PAGE>
The "Vesting Service" of an employee means the period or periods
of service credited to him under the provisions of Article II for
purposes of determining his vested interest in his Employer
Contributions Sub-Account, if Employer Contributions are provided
for under either Article VI or Article XXII.
1.2 Interpretation
Where required by the context, the noun, verb, adjective, and
adverb forms of each defined term shall include any of its other
forms. Wherever used herein, the masculine pronoun shall include
the feminine, the singular shall include the plural, and the
plural shall include the singular.
8
<PAGE>
ARTICLE II
SERVICE
2.1 Definitions
For purposes of this Article, the following terms shall have the
following meanings:
(a) A "break in service" means any computation period during
which a person completes less than 501 Hours of Service
except that no person shall incur a break in service
solely by reason of temporary absence from work not
exceeding 12 months resulting from illness, layoff, or
other cause if authorized in advance by an Employer or a
Related Company pursuant to its uniform leave policy, if
his employment shall not otherwise be terminated during
the period of such absence.
(b) A "computation period" for purposes of determining an
employee's years of Eligibility Service means (i) the
12-consecutive-month period beginning on the first date he
completes an Hour of Service, and (ii) each
12-consecutive-month period beginning on an anniversary of
such date.
(c) The "continuous service" of an employee means the service
credited to him in accordance with the provisions of
Section 2.7 of the Plan.
(d) The "employment commencement date" of an employee means
the date he first completes an Hour of Service.
(e) A "maternity/paternity absence" means a person's absence
from employment with an Employer or a Related Company
because of the person's pregnancy, the birth of the
person's child, the placement of a child with the person
in connection with the person's adoption of the child, or
the caring for the person's child immediately following
the child's birth or adoption. A person's absence from
employment will not be considered a maternity/paternity
absence unless the person furnishes the Administrator such
timely information as may reasonably be required to
establish that the absence was for one of the purposes
enumerated in this paragraph and to establish the number
of days of absence attributable to such purpose.
(f) The "reemployment commencement date" of an employee means
the first date following a severance date on which he
again completes an Hour of Service.
9
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(g) The "severance date" of an employee means the earlier of
(i) the date on which he retires, dies, or his employment
with an Employer and all Related Companies is otherwise
terminated, or (ii) the first anniversary of the first
date of a period during which he is absent from work with
an Employer and all Related Companies for any other
reason; provided, however, that if he terminates
employment with or is absent from work with an Employer
and all Related Companies on account of service with the
armed forces of the United States, he shall not incur a
severance date if he is eligible for reemployment rights
under the Uniformed Services Employment and Reemployment
Rights Act of 1994 and he returns to work with an Employer
or a Related Company within the period during which he
retains such reemployment rights.
2.2 Crediting of Hours of Service
A person shall be credited with an Hour of Service for:
(a) each hour for which he is paid, or entitled to payment,
for the performance of duties for an Employer, a
Predecessor Employer or a Related Company during the
applicable computation period; provided, however, that
hours compensated at a premium rate shall be treated as
straight-time hours;
(b) subject to the provisions of Section 2.4, each hour for
which he is paid, or entitled to payment, by an Employer,
a Predecessor Employer or a Related Company 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), lay-off, jury duty, military duty,
or leave of absence;
(c) each hour for which he would have been scheduled to work
for an Employer, a Predecessor Employer or a Related
Company during the period that he is absent from work
because of service with the armed forces of the United
States provided he is eligible for reemployment rights
under the Uniformed Services Employment and Reemployment
Rights Act of 1994 and returns to work with an Employer or
a Related Company within the period during which he
retains such reemployment rights; and
(d) each hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by an Employer,
a Predecessor Employer or a Related Company; provided,
however, that the same Hour of Service shall not be
credited both under paragraph (a) or (b) or (c) of this
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Section, as the case may be, and under this paragraph (d);
and provided, further, that the crediting of Hours of
Service for back pay awarded or agreed to with respect to
periods described in such paragraph (b) shall be subject
to the limitations set forth therein and in Section 2.4.
Notwithstanding the foregoing and solely for purposes of
determining whether a person who is on a maternity/paternity
absence beginning on or after the first day of the first Plan
Year that commences on or after January 1, 1985, has incurred a
break in service, Hours of Service shall include those hours with
which such person would otherwise have been credited but for such
maternity/paternity absence, or shall include eight Hours of
Service for each day of maternity/paternity absence if the actual
hours to be credited cannot be determined; except that not more
than 501 hours are to be credited by reason of any
maternity/paternity absence. Any hours included as Hours of
Service pursuant to the immediately preceding sentence shall be
credited to the computation period in which the absence from
employment begins, if such person otherwise would incur a break
in service in such computation period, or, in any other case, to
the immediately following computation period.
2.3 Hours of Service Equivalencies
Notwithstanding any other provision of the Plan to the contrary,
an Employer may elect to credit Hours of Service to its employees
in accordance with one of the following equivalencies, and if an
Employer does not maintain records that accurately reflect actual
hours of service, such Employer shall credit Hours of Service to
its employees in accordance with one of the following
equivalencies:
(a) If the Employer maintains its records on the basis of days
worked, an employee shall be credited with 10 Hours of
Service for each day on which he performs an Hour of
Service.
(b) If the Employer maintains its records on the basis of
weeks worked, an employee shall be credited with 45 Hours
of Service for each week in which he performs an Hour of
Service.
(c) If the Employer maintains its records on the basis of
semi-monthly payroll periods, an employee shall be
credited with 95 Hours of Service for each semi-monthly
payroll period in which he performs an Hour of Service.
(d) If the Employer maintains its records on the basis of
months worked, an employee shall be credited with 190
11
<PAGE>
Hours of Service for each month in which he performs an
Hour of Service.
2.4 Limitations on Crediting of Hours of Service
In the application of the provisions of paragraph (b) of Section
2.2, the following shall apply:
(a) An hour for which a person is directly or indirectly paid,
or entitled to payment, on account of a period during
which no duties are performed shall not be credited to him
if such payment is made or due under a plan maintained
solely for the purpose of complying with applicable
workers' compensation, unemployment compensation, or
disability insurance laws.
(b) Hours of Service shall not be credited with respect to a
payment which solely reimburses a person for medical or
medically-related expenses incurred by him.
(c) For purposes of such paragraph (b), a payment shall be
deemed to be made by or due from an Employer, a
Predecessor Employer or a Related Company (i) regardless
of whether such payment is made by or due from such
employer directly or indirectly, through (among others) a
trust fund or insurer to which any such employer
contributes or pays premiums, and (ii) regardless of
whether contributions made or due to such trust fund,
insurer, or other entity are for the benefit of particular
persons or are on behalf of a group of persons in the
aggregate.
(d) No more than 501 Hours of Service shall be credited under
such paragraph (b) to a person on account of any single
continuous period during which he performs no duties
(whether or not such period occurs in a single computation
period), unless no duties are performed due to service
with the armed forces of the United States for which the
person retains reemployment rights as provided in
paragraph (c) of Section 2.2.
2.5 Department of Labor Rules
The rules set forth in paragraphs (b) and (c) of Department of
Labor Regulations Section 2530.200b-2, which relate to
determining Hours of Service attributable to reasons other than
the performance of duties and crediting Hours of Service to
computation periods, are hereby incorporated into the Plan by
reference.
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2.6 Years of Eligibility Service
An employee shall be credited with a year of Eligibility Service
for each computation period in which he completes at least 1,000
Hours of Service.
2.7 Crediting of Continuous Service
A person shall be credited with continuous service for the
aggregate of the periods of time between his employment
commencement date or any reemployment commencement date and the
severance date that next follows such employment commencement
date or reemployment commencement date; provided, however, that
an employee who has a reemployment commencement date within the
12-consecutive-month period following the earlier of the first
date of his absence or his severance date shall be credited with
continuous service for the period between such severance date and
reemployment commencement date.
2.8 Vesting Service
Years of Vesting Service shall be determined in accordance with
the following provisions:
(a) An employee shall be credited with years of Vesting
Service equal to his period of continuous service.
(b) Notwithstanding the provisions of paragraph (a),
continuous service completed by an employee prior to a
severance date shall not be included in determining the
employee's years of Vesting Service unless the employee
had a nonforfeitable right to any portion of his Separate
Account, excluding that portion of his Separate Account
that is attributable to After-Tax Contributions or
Rollover Contributions, as of the severance date, or the
period of time between the severance date and his
reemployment commencement date is less than the greater of
five years or his period of continuous service determined
as of the severance date; provided, however, that solely
for purposes of applying this paragraph, if a person is on
a maternity/paternity absence beyond the first anniversary
of the first day of such absence, his severance date shall
be the second anniversary of the first day of such
maternity/paternity absence.
2.9 Crediting of Hours of Service with Respect to Short Plan
Year
The following provisions shall apply with respect to crediting
Hours of Service with respect to any short Plan Year other than a
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<PAGE>
short Plan Year that may be excluded from the computation period
under the provisions of Section 2.1:
(a) For purposes of this Article, the following terms shall
have the following meanings:
(i) An "old Plan Year" means any Plan Year that ends
immediately prior to a change in the Plan Year.
(ii) A "short Plan Year" means any Plan Year of fewer than
12 consecutive months.
(b) Notwithstanding any other provision of the Plan to the
contrary, no person shall incur a break in service for a
short Plan Year solely because of such short Plan Year.
(c) For purposes of determining the years of Eligibility
Service to be credited to an Employee, a Plan Year shall
not include the short Plan Year, but shall include the
12-consecutive-month period ending with the last day of
the short Plan Year and the 12-consecutive-month period
ending with the first anniversary of the last day of the
old Plan Year; provided, however, that no more than one
year of Eligibility Service shall be credited to an
Employee with respect to such periods.
2.10 Crediting of Service on Transfer or Amendment
Notwithstanding any other provision of the Plan to the contrary,
if an Employee is transferred from employment covered under a
qualified plan maintained by an Employer or a Related Company for
which eligibility service is credited based on elapsed time in
accordance with Treasury Regulations Section 1.410(a)-7 to
employment covered under the Plan or, prior to amendment, the
Plan provided for crediting of Eligibility Service on the basis
of elapsed time, an affected Employee shall be credited with
Eligibility Service hereunder equal to:
(a) the number of one year periods of service credited to the
Employee under the elapsed time method before the transfer
date or the effective date of the amendment, plus
(b) his service under the Hours of Service method provided
hereunder for the computation period in which the transfer
or the effective date of the amendment occurs applying one
of the equivalencies set forth in Section 2.3 to any
fractional part of a year credited to the Employee under
the elapsed time method as of the transfer date or the
effective date of the amendment; provided, however that
the same equivalency shall be used for all similarly
situated Employees, plus
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<PAGE>
(c) the service credited to such Employee under the Hours of
Service method provided hereunder for computation periods
beginning after the computation period in which the
transfer or the effective date of the amendment occurs.
In addition, notwithstanding any other provision of the Plan to
the contrary, if an Employee is transferred from employment
covered under a qualified plan maintained by an Employer or a
Related Company for which vesting service is credited based on
Hours of Service and computation periods in accordance with
Department of Labor Regulations Section 2530.200 through 2530.203
to employment covered under the Plan or, prior to amendment, the
Plan provided for crediting of service on the basis of Hours of
Service and computation periods, an affected Employee shall be
credited with Vesting Service hereunder equal to:
(a) the Employee's years of service credited to him under the
Hours of Service method before the computation period in
which the transfer or the effective date of the amendment
occurs, plus
(b) the greater of (i) the period of service that would be
credited to the Employee under the elapsed time method
provided hereunder for his employment during the entire
computation period in which the transfer or the effective
date of the amendment occurs or (ii) the service taken
into account under the Hours of Service method for such
computation period as of the transfer date or the
effective date of the amendment, plus
(c) the service credited to such Employee under the elapsed
time method provided hereunder for the period of time
beginning on the day after the last day of the computation
period in which the transfer or the effective date of the
amendment occurs.
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ARTICLE III
ELIGIBILITY
3.1 Eligibility
Each person who is an Employee on June 30, 1996 shall become an
Eligible Employee as of July 1, 1996, except that each Employee
who is designated by the Administrator as a "straight part-time
employee" shall only become an Eligible Employee in accordance
with the provisions of the next sentence. Each other Employee
shall become an Eligible Employee as of the Enrollment Date
coinciding with or next following the date on which he has
completed one year of Eligibility Service.
3.2 Transfers of Employment
If a person is transferred directly from employment with an
Employer or with a Related Company in a capacity other than as an
Employee to employment as an Employee, he shall become an
Eligible Employee as of the date he is so transferred if prior to
an Enrollment Date coinciding with or preceding such transfer
date he has met the eligibility requirements of Section 3.1.
Otherwise, the eligibility of a person who is so transferred to
elect to have Tax-Deferred Contributions made to the Plan on his
behalf shall be determined in accordance with Section 3.1.
3.3 Reemployment
If a person who terminated employment with an Employer and all
Related Companies is reemployed as an Employee and if he had been
an Eligible Employee prior to his termination of employment, he
shall again become an Eligible Employee on the date he is
reemployed. Otherwise, the eligibility of a person who
terminated employment with an Employer and all Related Companies
and who is reemployed by an Employer or a Related Company to
elect to have Tax-Deferred Contributions made to the Plan on his
behalf shall be determined in accordance with Section 3.1 or 3.2.
3.4 Notification Concerning New Eligible Employees
Each Employer shall notify the Administrator as soon as
practicable of Employees becoming Eligible Employees as of any
date.
3.5 Effect and Duration
Upon becoming an Eligible Employee, an Employee shall be entitled
to elect to have Tax-Deferred Contributions made to the Plan on
his behalf and shall be bound by all the terms and conditions of
the Plan and the Trust Agreement. A person shall continue as an
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Eligible Employee eligible to have Tax-Deferred Contributions
made to the Plan on his behalf only so long as he continues
employment as an Employee.
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ARTICLE IV
TAX-DEFERRED CONTRIBUTIONS
4.1 Tax-Deferred Contributions
Effective as of the date he becomes an Eligible Employee, or any
subsequent Enrollment Date, each Eligible Employee may elect in
writing in accordance with rules prescribed by the Administrator
to have Tax-Deferred Contributions made to the Plan on his behalf
by his Employer as hereinafter provided. An Eligible Employee's
written election shall include his authorization for his Employer
to reduce his Compensation and to make Tax-Deferred Contributions
on his behalf and his election as to the investment of his
contributions in accordance with Article X. Tax-Deferred
Contributions on behalf of an Eligible Employee shall commence
with the first payment of Compensation made on or after the date
on which his election is effective.
4.2 Amount of Tax-Deferred Contributions
The amount of Tax-Deferred Contributions to be made to the Plan
on behalf of an Eligible Employee by his Employer shall be an
integral percentage of his Compensation (excluding Compensation
with respect to any period ending prior to the date on which the
Employee makes a written election pursuant to Section 4.1 above)
of not less than 1 percent nor more than 6 percent. In the event
an Eligible Employee elects to have his Employer make Tax-
Deferred Contributions on his behalf, his Compensation shall be
reduced for each payroll period by the percentage he elects to
have contributed on his behalf to the Plan in accordance with the
terms of his currently effective reduction authorization.
4.3 Changes in Reduction Authorization
An Eligible Employee may change the percentage of his future
Compensation that his Employer contributes on his behalf as Tax-
Deferred Contributions at such time or times during the Plan Year
as the Administrator may prescribe by filing an amended reduction
authorization with his Employer such number of days prior to the
date such change is to become effective as the Administrator
shall prescribe. An Eligible Employee who changes his reduction
authorization shall be limited to selecting a percentage of his
Compensation that is otherwise permitted hereunder. Tax-Deferred
Contributions shall be made on behalf of such Eligible Employee
by his Employer pursuant to his amended reduction authorization
filed in accordance with this Section commencing with
Compensation paid to the Eligible Employee on or after the date
such filing is effective, until otherwise altered or terminated
in accordance with the Plan.
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4.4 Suspension of Tax-Deferred Contributions
An Eligible Employee on whose behalf Tax-Deferred Contributions
are being made may have such contributions suspended at any time
by giving such number of days advance written notice to his
Employer as the Administrator shall prescribe. Any such
voluntary suspension shall take effect commencing with
Compensation paid to such Eligible Employee on or after the
expiration of the required notice period and shall remain in
effect until Tax-Deferred Contributions are resumed as
hereinafter set forth.
4.5 Resumption of Tax-Deferred Contributions
An Eligible Employee who has voluntarily suspended his Tax-
Deferred Contributions may have such contributions resumed at
such time or times during the Plan Year as the Administrator may
prescribe, by filing a new reduction authorization with his
Employer such number of days prior to the date as of which such
contributions are to be resumed as the Administrator shall
prescribe.
4.6 Delivery of Tax-Deferred Contributions
As soon after the date an amount would otherwise be paid to an
Employee as it can reasonably be separated from Employer assets,
each Employer shall cause to be delivered to the Trustee in cash
all Tax-Deferred Contributions attributable to such amounts.
4.7 Vesting of Tax-Deferred Contributions
A Participant's vested interest in his Tax-Deferred Contributions
Sub-Account shall be at all times 100 percent.
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ARTICLE V
AFTER-TAX, TRANSFER AND ROLLOVER CONTRIBUTIONS
5.1 No After-Tax Contributions
There shall be no After-Tax Contributions made to the Plan.
5.2 Transfer Contributions
The following shall apply with respect to amounts transferred to
the Plan pursuant to the provisions of Section 21.17:
(a) After-tax contributions, deductible employee
contributions, tax-deferred contributions, rollover
contributions and employer contributions transferred to
the Plan from the GreenPoint Bank Incentive Savings Plan
(the "Incentive Savings Plan") on July 1, 1996 and which
were originally transferred to the Incentive Savings Plan
from the BarclaysAmericanCorporation Restated Thrift
Savings Plan (the "Barclays Plan") and any earnings
thereon (collectively referred to herein as "Barclays Plan
Transferred Contributions") shall be held in the Barclays
Plan Transferred After-Tax Contributions Sub-Account,
Barclays Plan Transferred Deductible Employee
Contributions Sub-Account, Barclays Plan Transferred Tax-
Deferred Contributions Sub-Account, Barclays Plan
Transferred Rollover Contributions Sub-Account and
Barclays Plan Transferred Employer Contributions Sub-
Account, respectively (collectively referred to herein as
"Barclays Plan Transferred Contributions Sub-Accounts").
A Participant's vested interest in his Barclays Plan
Transferred Contributions Sub-Accounts shall be at all
times 100 percent.
(b) After-tax contributions, tax-deferred contributions,
rollover contributions and employer contributions
transferred to the Plan from the Incentive Savings Plan on
July 1, 1996 (other than Barclays Plan Transferred
Contributions) and any earnings thereon (collectively
referred to herein as "Incentive Savings Plan Transferred
Contributions") shall be held in the Incentive Savings
Plan Transferred After-Tax Contributions Sub-Account,
Incentive Savings Plan Transferred Tax-Deferred
Contributions Sub-Account, Incentive Savings Plan
Transferred Rollover Contributions Sub-Account and
Incentive Savings Plan Transferred Employer Contributions
Sub-Account, respectively (collectively referred to herein
as "Incentive Savings Plan Transferred Contributions Sub-
Accounts"). A Participant's vested interest in his
Incentive Savings Plan Transferred Contributions Sub-
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Accounts shall be at all times 100 percent; provided,
however, that notwithstanding the foregoing, a
Participant's vested interest in that portion of his
Incentive Savings Plan Transferred Employer Contributions
Sub-Account attributable to matching contributions shall
be determined in the same way as his vested interest in
his Matching Contributions Sub-Account.
5.3 Rollover Contributions
An Employee who was a participant in a plan qualified under
Section 401 or 403 of the Code and who receives a cash
distribution from such plan that he elects either (i) to roll
over immediately to a qualified retirement plan or (ii) to roll
over into a conduit IRA from which he receives a later cash
distribution, may elect to make a Rollover Contribution to the
Plan if he is entitled under Section 402(c), Section 403(a)(4),
or Section 408(d)(3)(A) of the Code to roll over such
distribution to another qualified retirement plan. The
Administrator may require an Employee to provide it with such
information as it deems necessary or desirable to show that he is
entitled to roll over such distribution to another qualified
retirement plan. An Employee shall make a Rollover Contribution
to the Plan by delivering, or causing to be delivered, to the
Trustee the cash that constitutes the Rollover Contribution
amount within 60 days of receipt of the distribution from the
plan or from the conduit IRA in the manner prescribed by the
Administrator. If the Employee does not already have an
investment election on file with the Administrator, the Employee
shall also deliver to the Administrator his election as to the
investment of his contributions in accordance with Article X.
5.4 Vesting of Rollover Contributions
A Participant's vested interest in his Rollover Contributions
Sub-Account shall be at all times 100 percent.
21
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ARTICLE VI
EMPLOYER CONTRIBUTIONS
6.1 Contribution Period
The Contribution Period for Employer Contributions under the Plan
shall be each Plan Year.
6.2 Qualified Nonelective Contributions
Each Employer may, in its discretion, make a Qualified
Nonelective Contribution to the Plan for the Contribution Period
in an amount determined by the Sponsor.
6.3 Allocation of Qualified Nonelective Contributions
Any Qualified Nonelective Contribution made by an Employer for
the Contribution Period shall be allocated among its Employees
during the Contribution Period who are eligible to participate in
the allocation of Qualified Nonelective Contributions for the
Contribution Period, as determined under this Article, other than
any such Employee who is a Highly Compensated Employee. The
allocable share of each such Employee shall be either (i) in the
ratio which his Compensation from the Employer for the
Contribution Period bears to the aggregate of such Compensation
for all such Employees or (ii) a flat dollar amount, as
determined by the Sponsor for the Contribution Period.
Notwithstanding any other provision of the Plan to the contrary,
Compensation with respect to any period ending prior to the date
on which an Employee first became eligible to participate in the
allocation of Qualified Nonelective Contributions shall be
disregarded in determining the amount of the Employee's allocable
share.
6.4 Matching Contributions
Except as otherwise provided in Section 6.5, each Employer shall
make a Matching Contribution to the Plan for each Contribution
Period in an amount equal to 100 percent of the aggregate
"eligible Tax-Deferred Contributions" for the Contribution Period
made on behalf of its Employees during the Contribution Period
who are eligible to participate in the allocation of Matching
Contributions for the Contribution Period, as determined under
this Article. For purposes of this Article, "eligible Tax-
Deferred Contributions" with respect to an Employee means the
Tax-Deferred Contributions made on his behalf for the
Contribution Period in an amount up to, but not exceeding, the
"match level". For purposes of this Article, the "match level"
means 3 percent of an Employee's Compensation for the
Contribution Period, excluding Compensation with respect to any
22
<PAGE>
period ending prior to the date on which the Employee became
eligible to participate in the allocation of Matching
Contributions.
An Employer may designate any portion or all of its Matching
Contribution as a qualified Matching Contribution. Amounts that
are designated as qualified Matching Contributions shall be
accounted for separately and may be withdrawn only as permitted
under the Plan. Notwithstanding any other provision of the Plan
to the contrary, a Participant's vested interest in that portion
of his Employer Contributions Sub-Account that is attributable to
qualified Matching Contributions shall be at all times 100
percent.
6.5 Allocation of Matching Contributions
Any Matching Contribution made by an Employer for the
Contribution Period shall be allocated among its Employees during
the Contribution Period who are eligible to participate in the
allocation of Matching Contributions for the Contribution Period,
as determined under this Article. The allocable share of each
such Employee shall be an amount equal to 100 percent of the
"eligible Tax-Deferred Contributions" made on his behalf for the
Contribution Period.
The Sponsor may specify, at any time prior to the earlier of the
date that a Matching Contribution is made or due for a
Contribution Period pursuant to Section 6.7, that all or a
portion of the contribution an Employer makes to the GreenPoint
Bank Employee Stock Ownership Plan (the "ESOP") with respect to
the plan year of the ESOP ending with the Contribution Period and
the resultant allocation of stock to participant accounts
thereunder, shall be deemed to satisfy to the extent so specified
all or a portion of its obligation to make a Matching
Contribution for such Contribution Period under this Plan. In
this event, the Matching Contribution that an Employer is
otherwise obligated to make to this Plan on behalf of any of its
Employees shall be reduced by the portion of the contribution
made by the Employer under the ESOP that is so specified to
satisfy the obligation of the Employer to make Matching
Contributions. If the amount contributed to the ESOP originally
specified by the Sponsor to satisfy the obligation of the
Employer to make Matching Contributions under the Plan would
cause the ESOP to fail to meet the average contribution
percentage test under Section 401(m) of the Code, the Sponsor may
reduce the amount originally specified to be contributed to the
ESOP for some or all of the Participants to whom the
contributions involved pertain solely to the extent necessary to
meet the average contribution percentage test, and the Sponsor
shall not be obligated to make a Matching Contribution to the
Plan of all or any part the difference between the original
23
<PAGE>
amount so specified and the reduced amount contributed to the
ESOP. Any amount contributed to the ESOP that is specified to
represent a matching contribution pursuant to this Section 6.5
shall not be treated as a Matching Contribution under this Plan
for any purpose and shall be subject to the provisions of the
ESOP, including without limitation, the distribution provisions
thereof.
6.5. Verification of Amount of Employer Contributions
by the Sponsor
The Sponsor shall verify the amount of Employer Contributions to
be made by each Employer in accordance with the provisions of the
Plan. Notwithstanding any other provision of the Plan to the
contrary, the Sponsor shall determine the portion of the Employer
Contribution to be made by each Employer with respect to an
Employee who transfers from employment with one Employer as an
Employee to employment with another Employer as an Employee.
6.6 Payment of Employer Contributions
Employer Contributions made for a Contribution Period shall be
paid in cash or in qualifying employer securities, as defined in
Section 407(d)(5) of ERISA, to the Trustee within the period of
time required under the Code in order for the contribution to be
deductible by the Employer in determining its Federal income
taxes for the Plan Year.
6.7 Eligibility to Participate in Allocation
Each Employee shall be eligible to participate in the allocation
of Employer Contributions beginning on the date he becomes, or
again becomes, an Eligible Employee in accordance with the
provisions of Article III. Notwithstanding the foregoing, no
Employee shall be eligible to participate in the allocation of
Matching Contributions for a Contribution Period unless (i) he is
employed by an Employer on the last day of the Contribution
Period and (ii) he has completed at least 1,000 Hours of Service
during the Plan Year, with the required number of Hours of
Service pro-rated for any short Plan Year; provided, however,
that the requirements of clauses (i) and (ii) immediately above
shall not apply to (A) a person who terminates employment during
the Plan Year (1) on or after his Normal Retirement Date, (2) on
or after his "early retirement date", (3) because of a disability
such that he is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or to
be of long-continued and indefinite duration as determined by the
Administrator on the basis of evidence acceptable to it or
(4) because of death or (B) a person who is on a "recognized
absence" as of the last day of the Plan Year; and provided,
24
<PAGE>
further, that if the Plan would not otherwise meet the minimum
coverage requirements of Section 410(b) of the Code in any Plan
Year, the group of Employees eligible to participate in the
allocation of Matching Contributions shall be expanded to include
the minimum number of Employees who would be eligible to
participate except for their failure to complete the required
number of Hours of Service during the Plan Year that is necessary
to meet the minimum coverage requirements. The Employees who are
to become eligible to participate under the provisions of the
immediately preceding clause shall be those Employees who have
completed the greatest number of Hours of Service during the Plan
Year. If after inclusion of all of the Employees who did not
complete all such required number of Hours of Service the Plan
still would not meet the minimum coverage requirements of Section
410(b) of the Code, the group of Employees shall be expanded
further to include the minimum number of former Employees who
were employed during a portion of the Plan Year but who are not
employed by an Employer or a Related Company on the last day of
the Contribution Period that is necessary to meet the minimum
coverage requirements. The Employees who are to become eligible
to participate under the provisions of the immediately preceding
sentence shall be those former Employees who have completed the
greatest number of Hours of Service during the Contribution
Period.
For purposes of the preceding paragraph, "early retirement date"
means the date on which an Employee completes at least 10 years
of Vesting Service and attains an age which, when combined with
the Employee's years of Vesting Service, equals at least 75. For
purposes of the preceding paragraph, "recognized absence" means a
period for which (i) an Employer grants an Employee a leave of
absence for a limited period, but only if the Employer grants
such leaves on a nondiscriminatory basis, (ii) an Employee is
temporarily laid off by an Employer because of a change in
business conditions, or (iii) an Employee is on active military
duty, but only to the extent that his employment rights are
protected by the Military Selective Service Act of 1967 (38
U.S.C. Section 2001) or the Uniformed Services Employment and
Reemployment Rights Act of 1994.
6.9 Vesting of Employer Contributions
A Participant's vested interest in his Qualified Nonelective
Contributions Sub-Account shall be at all times 100 percent. A
Participant's vested interest in his Matching Contributions Sub-
Account shall be determined in accordance with the following
schedule:
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<PAGE>
Years of Vesting Service Vested Interest
Less than 1 0%
1 but less than 2 60%
2 but less than 3 70%
3 but less than 4 80%
4 but less than 5 90%
5 or more 100%
Notwithstanding the foregoing, if a Participant is employed by an
Employer or a Related Company on (i) his Normal Retirement Date,
(ii) the date on which he completes at least 10 years of Vesting
Service and attains an age which, when combined with the
Participant's years of Vesting Service, equals at least 75,
(iii) the date he becomes disabled such that he is unable to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or to be of long-continued and
indefinite duration as determined by the Administrator on the
basis of evidence acceptable to it, or (iv) the date he dies, his
vested interest in his Matching Contributions Sub-Account shall
be 100 percent.
6.10 Election of Former Vesting Schedule
If the Sponsor adopts an amendment to the Plan that directly or
indirectly affects the computation of a Participant's vested
interest in his Employer Contributions Sub-Account, any
Participant with three or more years of Vesting Service shall
have a right to have his vested interest in his Employer
Contributions Sub-Account continue to be determined under the
vesting provisions in effect prior to the amendment rather than
under the new vesting provisions, unless the vested interest of
the Participant in his Employer Contributions Sub-Account under
the Plan as amended is not at any time less than such vested
interest determined without regard to the amendment. A
Participant shall exercise his right under this Section by giving
written notice of his exercise thereof to the Administrator
within 60 days after the latest of (i) the date he receives
notice of the amendment from the Administrator, (ii) the
effective date of the amendment, or (iii) the date the amendment
is adopted. Notwithstanding the foregoing, a Participant's
vested interest in his Employer Contributions Sub-Account on the
effective date of such an amendment shall not be less than his
vested interest in his Employer Contributions Sub-Account
immediately prior to the effective date of the amendment.
26
<PAGE>
ARTICLE VII
LIMITATIONS ON CONTRIBUTIONS
7.1 Definitions
For purposes of this Article, the following terms have the
following meanings:
(a) The "actual deferral percentage" with respect to an
Eligible Employee for a particular Plan Year means the
ratio of the Tax-Deferred Contributions made on his behalf
for the Plan Year to his test compensation for the Plan
Year, except that, to the extent permitted by regulations
issued under Section 401(k) of the Code, the Sponsor may
elect to take into account in computing the numerator of
each Eligible Employee's actual deferral percentage the
qualified matching contributions and/or qualified
nonelective contributions made to the Plan on his behalf
for the Plan Year; provided, however, that contributions
made on a Participant's behalf for a Plan Year shall be
included in determining his actual deferral percentage for
such Plan Year only if the contributions are made to the
Plan prior to the end of the 12-month period immediately
following the Plan Year to which the contributions relate.
The determination and treatment of the actual deferral
percentage amounts for any Participant shall satisfy such
other requirements as may be prescribed by the Secretary
of the Treasury.
(b) The "aggregate limit" means the sum of (i) 125 percent of
the greater of the average contribution percentage for
eligible participants other than Highly Compensated
Employees or the average actual deferral percentage for
Eligible Employees other than Highly Compensated Employees
and (ii) the lesser of 200 percent or two plus the lesser
of such average contribution percentage or average actual
deferral percentage, or, if it would result in a larger
aggregate limit, the sum of (iii) 125 percent of the
lesser of the average contribution percentage for eligible
participants other than Highly Compensated Employees or
the average actual deferral percentage for Eligible
Employees other than Highly Compensated Employees and
(iv) the lesser of 200 percent or two plus the greater of
such average contribution percentage or average actual
deferral percentage.
(c) The "annual addition" with respect to a Participant for a
limitation year means the sum of the Tax-Deferred
Contributions, Employer Contributions, and forfeitures
allocated to his Separate Account for the limitation year
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<PAGE>
(including any excess contributions that are distributed
pursuant to this Article), the employer contributions,
employee contributions, and forfeitures allocated to his
accounts for the limitation year under any other qualified
defined contribution plan (whether or not terminated)
maintained by an Employer or a Related Company
concurrently with the Plan, and amounts described in
Sections 415(l)(2) and 419A(d)(2) of the Code allocated to
his account for the limitation year.
(d) The "Code Section 402(g) limit" means the dollar limit
imposed by Section 402(g)(1) of the Code or established by
the Secretary of the Treasury pursuant to Section
402(g)(5) of the Code in effect on January 1 of the
calendar year in which an Eligible Employee's taxable year
begins.
(e) The "contribution percentage" with respect to an eligible
participant for a particular Plan Year means the ratio of
the matching contributions made to the Plan on his behalf
for the Plan Year to his test compensation for such Plan
Year, except that, to the extent permitted by regulations
issued under Section 401(m) of the Code, the Sponsor may
elect to take into account in computing the numerator of
each eligible participant's contribution percentage the
Tax-Deferred Contributions and/or qualified nonelective
contributions made to the Plan on his behalf for the Plan
Year; provided, however, that any Tax-Deferred
Contributions, qualified matching contributions, and/or
qualified nonelective contributions that were taken into
account in computing the numerator of an eligible
participant's actual deferral percentage may not be taken
into account in computing the numerator of his
contribution percentage; and provided, further, that
contributions made by or on a Participant's behalf for a
Plan Year shall be included in determining his
contribution percentage for such Plan Year only if the
contributions are made to the Plan prior to the end of the
12-month period immediately following the Plan Year to
which the contributions relate. The determination and
treatment of the contribution percentage amounts for any
Participant shall satisfy such other requirements as may
be prescribed by the Secretary of the Treasury.
(f) An "elective contribution" means any employer contribution
made to a plan maintained by an Employer or any Related
Company on behalf of a Participant in lieu of cash
compensation pursuant to his written election to defer
under any qualified cash or deferred arrangement as
described in Section 401(k) of the Code, any simplified
employee pension cash or deferred arrangement as described
28
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in Section 402(h)(1)(B) of the Code, any eligible deferred
compensation plan under Section 457 of the Code, or any
plan as described in Section 501(c)(18) of the Code, and
any contribution made on behalf of the Participant by an
Employer or a Related Company for the purchase of an
annuity contract under Section 403(b) of the Code pursuant
to a salary reduction agreement.
(g) An "eligible participant" means any Employee who is
eligible to have Tax-Deferred Contributions made on his
behalf (if Tax-Deferred Contributions are taken into
account in computing contribution percentages), or to
participate in the allocation of matching contributions
(including qualified matching contributions and
forfeitures).
(h) An "excess deferral" with respect to a Participant means
that portion of a Participant's Tax-Deferred Contributions
that when added to amounts deferred under other plans or
arrangements described in Sections 401(k), 408(k), or
403(b) of the Code, would exceed the Code Section 402(g)
limit and is includable in the Participant's gross income
under Section 402(g) of the Code.
(i) A "family member" of an Employee means the Employee's
spouse, his lineal ascendants, his lineal descendants, and
the spouses of such lineal ascendants and descendants.
(j) A "limitation year" means the calendar year.
(k) A "matching contribution" means any employer contribution
allocated to an Eligible Employee's account under the Plan
or any other plan of an Employer or a Related Company
solely on account of elective contributions made on his
behalf or employee contributions made by him.
(l) A "qualified matching contribution" means any matching
contribution that is a qualified matching contribution as
defined in regulations issued under Section 401(k) of the
Code, is nonforfeitable when made, and is distributable
only as permitted in regulations issued under Section
401(k) of the Code.
(m) A "qualified nonelective contribution" means any employer
contribution made on behalf of a Participant that the
Participant could not elect instead to receive in cash,
that is a qualified nonelective contribution as defined in
Section 401(k) and Section 401(m) of the Code and
regulations issued thereunder, is nonforfeitable when
made, and is distributable only as permitted in
regulations issued under Section 401(k) of the Code.
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(n) The "test compensation" of an Eligible Employee for a Plan
Year means compensation as defined in Section 414(s) of
the Code and regulations issued thereunder, limited,
however, to $150,000 (subject to adjustment annually as
provided in Section 401(a)(17)(B) and Section 415(d) of
the Code; provided, however, that the dollar increase in
effect on January 1 of any calendar year, if any, is
effective for Plan Years beginning in such calendar year).
If the test compensation of a Participant is determined
over a period of time that contains fewer than 12 calendar
months, then the annual compensation limitation described
above shall be adjusted with respect to that Participant
by multiplying the annual compensation limitation in
effect for the Plan Year by a fraction the numerator of
which is the number of full months in the period and the
denominator of which is 12; provided, however, that no
proration is required for a Participant who is covered
under the Plan for less than one full Plan Year if the
formula for allocations is based on Compensation for a
period of at least 12 months. In determining the test
compensation, for purposes of applying the annual
compensation limitation described above, of a Participant
who is a five-percent owner or among the ten Highly
Compensated Employees receiving the greatest test
compensation for the limitation year, the test
compensation of the Participant's spouse and of his lineal
descendants who have not attained age 19 as of the close
of the limitation year shall be included as test
compensation of the Participant for the limitation year.
If as a result of applying the family aggregation rule
described in the preceding sentence the annual
compensation limitation would be exceeded, the limitation
shall be prorated among the affected family members in
proportion to each member's test compensation as
determined prior to application of the family aggregation
rules.
7.2 Code Section 402(g) Limit
In no event shall the amount of the Tax-Deferred Contributions
made on behalf of an Eligible Employee for his taxable year, when
aggregated with any elective contributions made on behalf of the
Eligible Employee under any other plan of an Employer or a
Related Company for his taxable year, exceed the Code Section
402(g) limit. In the event that the Administrator determines
that the reduction percentage elected by an Eligible Employee
will result in his exceeding the Code Section 402(g) limit, the
Administrator may adjust the reduction authorization of such
Eligible Employee by reducing the percentage of his Tax-Deferred
Contributions to such smaller percentage that will result in the
Code Section 402(g) limit not being exceeded. If the
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<PAGE>
Administrator determines that the Tax-Deferred Contributions made
on behalf of an Eligible Employee would exceed the Code Section
402(g) limit for his taxable year, the Tax-Deferred Contributions
for such Participant shall be automatically suspended for the
remainder, if any, of such taxable year.
If an Employer notifies the Administrator that the Code Section
402(g) limit has nevertheless been exceeded by an Eligible
Employee for his taxable year, the Tax-Deferred Contributions
that, when aggregated with elective contributions made on behalf
of the Eligible Employee under any other plan of an Employer or a
Related Company, would exceed the Code Section 402(g) limit, plus
any income and minus any losses attributable thereto, shall be
distributed to the Eligible Employee no later than the April 15
immediately following such taxable year. Any Tax-Deferred
Contributions that are distributed to an Eligible Employee in
accordance with this Section shall not be taken into account in
computing the Eligible Employee's actual deferral percentage for
the Plan Year in which the Tax-Deferred Contributions were made,
unless the Eligible Employee is a Highly Compensated Employee. If
an amount of Tax-Deferred Contributions is distributed to a
Participant in accordance with this Section, matching
contributions that are attributable solely to the distributed
Tax-Deferred Contributions, plus any income and minus any losses
attributable thereto, shall be forfeited by the Participant. Any
such forfeited amounts shall be treated as a forfeiture under the
Plan in accordance with the provisions of Article XIV as of the
last day of the month in which the distribution of Tax-Deferred
Contributions pursuant to this Section occurs.
7.3 Distribution of Excess Deferrals
Notwithstanding any other provision of the Plan to the contrary,
if a Participant notifies the Administrator in writing no later
than the March 1 following the close of the Participant's taxable
year that excess deferrals have been made on his behalf under the
Plan for such taxable year, the excess deferrals, plus any income
and minus any losses attributable thereto, shall be distributed
to the Participant no later than the April 15 immediately
following such taxable year. Any Tax-Deferred Contributions that
are distributed to a Participant in accordance with this Section
shall nevertheless be taken into account in computing the
Participant's actual deferral percentage for the Plan Year in
which the Tax-Deferred Contributions were made. If an amount of
Tax-Deferred Contributions is distributed to a Participant in
accordance with this Section, matching contributions that are
attributable solely to the distributed Tax-Deferred
Contributions, plus any income and minus any losses attributable
thereto, shall be forfeited by the Participant. Any such
forfeited amounts shall be treated as a forfeiture under the Plan
in accordance with the provisions of Article XIV as of the last
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day of the month in which the distribution of Tax-Deferred
Contributions pursuant to this Section occurs.
7.4 Limitation on Tax-Deferred Contributions of Highly
Compensated Employees
Notwithstanding any other provision of the Plan to the contrary,
the Tax-Deferred Contributions made with respect to a Plan Year
on behalf of Eligible Employees who are Highly Compensated
Employees may not result in an average actual deferral percentage
for such Eligible Employees that exceeds the greater of:
(a) a percentage that is equal to 125 percent of the average
actual deferral percentage for all other Eligible
Employees; or
(b) a percentage that is not more than 200 percent of the
average actual deferral percentage for all other Eligible
Employees and that is not more than two percentage points
higher than the average actual deferral percentage for all
other Eligible Employees.
In order to assure that the limitation contained herein is not
exceeded with respect to a Plan Year, the Administrator is
authorized to suspend completely further Tax-Deferred
Contributions on behalf of Highly Compensated Employees for any
remaining portion of a Plan Year or to adjust the projected
actual deferral percentages of Highly Compensated Employees by
reducing their percentage elections with respect to Tax-Deferred
Contributions for any remaining portion of a Plan Year to such
smaller percentages that will result in the limitation set forth
above not being exceeded. In the event of any such suspension or
reduction, Highly Compensated Employees affected thereby shall be
notified of the reduction or suspension as soon as possible and
shall be given an opportunity to make a new Tax-Deferred
Contribution election to be effective the first day of the next
following Plan Year. In the absence of such an election, the
election in effect immediately prior to the suspension or
adjustment described above shall be reinstated as of the first
day of the next following Plan Year.
For purposes of applying the limitation contained in this
Section, the Tax-Deferred Contributions, qualified nonelective
contributions and qualified matching contributions (to the extent
that such qualified nonelective contributions and qualified
matching contributions are taken into account in computing actual
deferral percentages), and test compensation of any Eligible
Employee who is a family member of another Eligible Employee who
is a five percent owner or among the ten Highly Compensated
Employees receiving the greatest test compensation for the Plan
Year shall be aggregated with the Tax-Deferred Contributions,
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qualified nonelective contributions, qualified matching
contributions, and test compensation of such other Eligible
Employee, and such family member shall not be considered an
Eligible Employee for purposes of determining the average actual
deferral percentage for all other Eligible Employees.
In determining the actual deferral percentage for any Eligible
Employee who is a Highly Compensated Employee for the Plan Year,
elective contributions, qualified nonelective contributions, and
qualified matching contributions (to the extent that qualified
nonelective contributions and qualified matching contributions
are taken into account in computing actual deferral percentages)
made to his accounts under any other plan of an Employer or a
Related Company shall be treated as if all such contributions
were made to the Plan; provided, however, that if such a plan has
a plan year different from the Plan Year, any such contributions
made to the Highly Compensated Employee's accounts under the plan
for the plan year ending with or within the same calendar year as
the Plan Year shall be treated as if such contributions were made
to the Plan. Notwithstanding the foregoing, such contributions
shall not be treated as if they were made to the Plan if
regulations issued under Section 401(k) of the Code do not permit
such plan to be aggregated with the Plan.
If one or more plans of an Employer or Related Company are
aggregated with the Plan for purposes of satisfying the
requirements of Section 401(a)(4) or 410(b) of the Code, then the
actual deferral percentages of all Eligible Employees under the
Plan shall be calculated as if the Plan and such one or more
other plans were a single plan. Plans may be aggregated to
satisfy Section 401(k) of the Code only if they have the same
plan year.
The Administrator shall maintain records sufficient to show that
the limitation contained in this Section was not exceeded with
respect to any Plan Year and the amount of the qualified
nonelective contributions and/or qualified matching contributions
taken into account in computing actual deferral percentages for
any Plan Year.
7.5 Distribution of Excess Tax-Deferred Contributions
Notwithstanding any other provision of the Plan to the contrary,
in the event that the limitation contained in Section 7.4 is
exceeded in any Plan Year, the Tax-Deferred Contributions made
with respect to a Highly Compensated Employee that exceed the
maximum amount permitted to be contributed to the Plan on his
behalf under Section 7.4, plus any income and minus any losses
attributable thereto, shall be distributed to the Highly
Compensated Employee prior to the end of the next succeeding Plan
Year. If excess amounts are attributable to Participants
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aggregated under the family aggregation rules described in
Section 7.4, the excess shall be allocated among family members
in proportion to the Tax-Deferred Contributions made with respect
to each family member. If such excess amounts are distributed
more than 2 1/2 months after the last day of the Plan Year for
which the excess occurred, an excise tax may be imposed under
Section 4979 of the Code on the Employer maintaining the Plan
with respect to such amounts.
The maximum amount permitted to be contributed to the Plan on a
Highly Compensated Employee's behalf under Section 7.4 shall be
determined by reducing Tax-Deferred Contributions made on behalf
of Highly Compensated Employees in order of their actual deferral
percentages beginning with the highest of such percentages. The
determination of the amount of excess Tax-Deferred Contributions
shall be made after application of Section 7.3, if applicable.
If an amount of Tax-Deferred Contributions is distributed to a
Participant in accordance with this Section, matching
contributions that are attributable solely to the distributed
Tax-Deferred Contributions, plus any income and minus any losses
attributable thereto, shall be forfeited by the Participant. Any
such forfeited amounts shall be treated as a forfeiture under the
Plan in accordance with the provisions of Article XIV as of the
last day of the month in which the distribution of Tax-Deferred
Contributions pursuant to this Section occurs.
7.6 Limitation on Matching Contributions of Highly
Compensated Employees
Notwithstanding any other provision of the Plan to the contrary,
the matching contributions made with respect to a Plan Year on
behalf of eligible participants who are Highly Compensated
Employees may not result in an average contribution percentage
for such eligible participants that exceeds the greater of:
(a) a percentage that is equal to 125 percent of the average
contribution percentage for all other eligible
participants; or
(b) a percentage that is not more than 200 percent of the
average contribution percentage for all other eligible
participants and that is not more than two percentage
points higher than the average contribution percentage for
all other eligible participants.
For purposes of applying the limitation contained in this
Section, the matching contributions, qualified nonelective
contributions and Tax-Deferred Contributions (to the extent that
such qualified nonelective contributions and Tax-Deferred
Contributions are taken into account in computing contribution
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percentages), and test compensation of any eligible participant
who is a family member of another eligible participant who is a
five percent owner or among the ten Highly Compensated Employees
receiving the greatest test compensation for the Plan Year, shall
be aggregated with the matching contributions, qualified
nonelective contributions, Tax-Deferred Contributions, and test
compensation of such other eligible participant, and such family
member shall not be considered an eligible participant for
purposes of determining the average contribution percentage for
all other eligible participants.
In determining the contribution percentage for any eligible
participant who is a Highly Compensated Employee for the Plan
Year, matching contributions, employee contributions, qualified
nonelective contributions, and elective contributions (to the
extent that qualified nonelective contributions and elective
contributions are taken into account in computing contribution
percentages) made to his accounts under any other plan of an
Employer or a Related Company shall be treated as if all such
contributions were made to the Plan; provided, however, that if
such a plan has a plan year different from the Plan Year, any
such contributions made to the Highly Compensated Employee's
accounts under the plan for the plan year ending with or within
the same calendar year as the Plan Year shall be treated as if
such contributions were made to the Plan. Notwithstanding the
foregoing, such contributions shall not be treated as if they
were made to the Plan if regulations issued under Section 401(m)
of the Code do not permit such plan to be aggregated with the
Plan.
If one or more plans of an Employer or a Related Company are
aggregated with the Plan for purposes of satisfying the
requirements of Section 401(a)(4) or 410(b) of the Code, the
contribution percentages under the Plan shall be calculated as if
the Plan and such one or more other plans were a single plan.
Plans may be aggregated to satisfy Section 401(m) of the Code
only if they have the same plan year.
In order to assure that the limitation contained in this Section
is not exceeded with respect to a Plan Year, the Sponsor may, in
its sole discretion, decrease the amount of Matching
Contributions to be made for the benefit of Highly Compensated
Employees. Any such decrease shall be made only after any
suspension or adjustment under Section 7.4 of Tax-Deferred
Contributions on behalf of Highly Compensated Employees has been
made. Any decrease in Matching Contributions in order to satisfy
such limitation shall be made first in the Matching Contributions
of the Highly Compensated Employees whose current rate of
Matching Contributions represent the highest percentage of their
Compensation, so that no reduction is made in the Matching
Contributions for any Highly Compensated Employee as long as for
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the Plan year involved any other Highly Compensated Employee has
a higher percentage in effect of Matching Contributions to
Compensation.
The Administrator shall maintain records sufficient to show that
the limitation contained in this Section was not exceeded with
respect to any Plan Year and the amount of the elective
contributions, qualified matching contributions, and qualified
nonelective contributions taken into account in computing
contribution percentages for any Plan Year.
7.7 Forfeiture or Distribution of Excess Contributions
Notwithstanding any other provision of the Plan to the contrary,
in the event that the limitation contained in Section 7.6 is
exceeded in any Plan Year, the matching contributions made on
behalf of a Highly Compensated Employee that exceed the maximum
amount permitted to be contributed to the Plan on behalf of such
Highly Compensated Employee under Section 7.6, plus any income
and minus any losses attributable thereto, shall be forfeited, to
the extent forfeitable, or distributed to the Participant prior
to the end of the next succeeding Plan Year as hereinafter
provided. If excess amounts are attributable to Participants
aggregated under the family aggregation rules described in
Section 7.5, the excess shall be allocated among family members
in proportion to the matching contributions, qualified
nonelective contributions, and qualified matching contributions
(to the extent that qualified nonelective contributions and
qualified matching contributions are taken into account in
computing contribution percentages) made with respect to each
family member. If such excess amounts are distributed more than
2 1/2 months after the last day of the Plan Year for which the
excess occurred, an excise tax may be imposed under Section 4979
of the Code on the Employer maintaining the Plan with respect to
such amounts.
The maximum amount permitted to be contributed to the Plan on
behalf of a Highly Compensated Employee under Section 7.6 shall
be determined by reducing matching contributions made on behalf
of Highly Compensated Employees in order of their contribution
percentages beginning with the highest of such percentages.
Any amounts forfeited with respect to a Participant pursuant to
this Section shall be treated as a forfeiture under the Plan in
accordance with the provisions of Article XIV as of the last day
of the month in which the distribution of contributions pursuant
to this Section occurs. Excess matching contributions shall be
distributable to the extent the Participant has a vested interest
in his Employer Contributions Sub-Account that is attributable to
matching contributions, other than qualified matching
contributions, and shall otherwise be forfeitable. The
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determination of the amount of excess matching contributions
shall be made after application of Section 7.3, if applicable,
and after application of Section 7.5, if applicable.
7.8 Multiple Use Limitation
Notwithstanding any other provision of the Plan to the contrary,
the following multiple use limitation as required under Section
401(m) of the Code shall apply: the sum of the average actual
deferral percentage for Eligible Employees who are Highly
Compensated Employees and the average contribution percentage for
eligible participants who are Highly Compensated Employees may
not exceed the aggregate limit. In the event that, after
satisfaction of Section 7.5 and Section 7.7, it is determined
that contributions under the Plan fail to satisfy the multiple
use limitation contained herein, the multiple use limitation
shall be satisfied by further reducing the actual deferral
percentages of Eligible Employees who are Highly Compensated
Employees (beginning with the highest such percentage) to the
extent necessary to eliminate the excess, with such further
reductions to be treated as excess Tax-Deferred Contributions and
disposed of as provided in Section 7.5, or in an alternative
manner, consistently applied, that may be permitted by
regulations issued under Section 401(m) of the Code.
7.9 Determination of Income or Loss
The income or loss attributable to excess contributions that are
distributed pursuant to this Article shall be determined for the
preceding Plan Year under the method otherwise used for
allocating income or loss to Participant's Separate Accounts.
7.10 Code Section 415 Limitations on Crediting of
Contributions and Forfeitures
Notwithstanding any other provision of the Plan to the contrary,
the annual addition with respect to a Participant for a
limitation year shall in no event exceed the lesser of
(i) $30,000 (adjusted as provided in Section 415(d) of the Code,
with the first adjustment being made for limitation years
beginning on or after January 1, 1996) or (ii) 25 percent of the
Participant's compensation, as defined in Section 415(c)(3) of
the Code and regulations issued thereunder, for the limitation
year; provided, however, that the limit in clause (i) shall be
prorated for any short limitation year. If the annual addition
to the Separate Account of a Participant in any limitation year
would otherwise exceed the amount that may be applied for his
benefit under the limitation contained in this Section, the
limitation shall be satisfied by reducing contributions made on
behalf of the Participant to the extent necessary in the
following order:
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Tax-Deferred Contributions made on the Participant's
behalf for the limitation year that have not been matched,
if any, shall be reduced.
Tax-Deferred Contributions made on the Participant's
behalf for the limitation year that have been matched and
the matching contributions attributable thereto, if any,
shall be reduced pro rata.
Forfeitures otherwise allocable to the Participant's
Separate Account for the limitation year, if any, shall be
reduced.
Qualified nonelective contributions made on the
Participant's behalf for the limitation year shall be
reduced.
The amount of any reduction of Tax-Deferred Contributions (plus
any income attributable thereto) shall be returned to the
Participant. The amount of any reduction of Employer
Contributions shall be deemed a forfeiture for the limitation
year. Amounts deemed to be forfeitures under this Section shall
be held unallocated in a suspense account established for the
limitation year and shall be applied against the Employer's
contribution obligation for the next following limitation year
(and succeeding limitation years, as necessary). If a suspense
account is in existence at any time during a limitation year, all
amounts in the suspense account must be allocated to
Participants' Separate Accounts (subject to the limitations
contained herein) before any further Tax-Deferred Contributions
or Employer Contributions may be made to the Plan on behalf of
Participants. No suspense account established hereunder shall
share in any increase or decrease in the net worth of the Trust.
For purposes of this Article, excesses shall result only from the
allocation of forfeitures, a reasonable error in estimating a
Participant's annual compensation (as defined in Section
415(c)(3) of the Code and regulations issued thereunder), a
reasonable error in determining the amount of Tax-Deferred
Contributions that may be made with respect to any Participant
under the limits of Section 415 of the Code, or other limited
facts and circumstances that justify the availability of the
provisions set forth above.
7.11 Coverage Under Other Qualified Defined Contribution Plan
If a Participant is covered by any other qualified defined
contribution plan (whether or not terminated) maintained by an
Employer or a Related Company concurrently with the Plan, and if
the annual addition for the limitation year would otherwise
exceed the amount that may be applied for the Participant's
benefit under the limitation contained in Section 7.10, such
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excess shall be reduced first by returning the employee
contributions made by the Participant for the limitation year
under all of the defined contribution plans other than the Plan
and the income attributable thereto to the extent necessary. If
the limitation contained in Section 7.10 is still not satisfied
after returning all of the employee contributions made by the
Participant under all such other plans, the excess shall be
reduced by returning the elective contributions made on the
Participant's behalf for the limitation year under all such other
plans and the income attributable thereto to the extent necessary
on a pro rata basis among all of such plans. If the limitation
contained in Section 7.10 is still not satisfied after returning
all of the elective contributions made on the Participant's
behalf under all such other plans, the procedure set forth in
Section 7.10 shall be invoked to eliminate any such excess. If
the limitation contained in Section 7.10 is still not satisfied
after invocation of the procedure set forth in Section 7.10, the
portion of the employer contributions and of forfeitures for the
limitation year under all such other plans that has been
allocated to the Participant thereunder, but which exceeds the
limitation set forth in Section 7.10, shall be deemed a
forfeiture for the limitation year and shall be disposed of as
provided in such other plans; provided, however, that if the
Participant is covered by a money purchase pension plan, the
forfeiture shall be effected first under any other defined
contribution plan that is not a money purchase pension plan and,
if the limitation is still not satisfied, then under such money
purchase pension plan.
7.12 Coverage Under Qualified Defined Benefit Plan
If a Participant in the Plan is also covered by a qualified
defined benefit plan (whether or not terminated) maintained by an
Employer or a Related Company, in no event shall the sum of the
defined benefit plan fraction (as defined in Section 415(e)(2) of
the Code) and the defined contribution plan fraction (as defined
in Section 415(e)(3) of the Code) exceed 1.0 in any limitation
year. If, before October 3, 1973, the Participant was an active
participant in a qualified defined benefit plan maintained by an
Employer or a Related Company and otherwise satisfies the
requirements of Section 2004(d)(2) of ERISA, then for purposes of
applying this Section, the defined benefit plan fraction shall
not exceed 1.0. In the event the limitation contained in this
Section is exceeded, to the extent necessary to meet such
limitation, first the accrued benefit of the Participant under
any defined benefit plan maintained by the Employer or a Related
Company shall be reduced, and then contributions and forfeitures
allocated to the Participant under the Plan and any other defined
contribution plan maintained by the Employer or a Related Company
shall be disposed of in the order and manner specified in Section
7.11.
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7.13 Scope of Limitations
The limitations contained in Sections 7.10, 7.11, and 7.12 shall
be applicable only with respect to benefits provided pursuant to
defined contribution plans and defined benefit plans described in
Section 415(k) of the Code.
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ARTICLE VIII
TRUST FUNDS AND SEPARATE ACCOUNTS
8.1 General Fund
The Trustee shall maintain a General Fund as required to hold and
administer any assets of the Trust that are not allocated among
the Investment Funds as provided in the Plan or the Trust
Agreement. The General Fund shall be held and administered as a
separate common trust fund. The interest of each Participant or
Beneficiary under the Plan in the General Fund shall be an
undivided interest. The General Fund may be invested in whole or
in part in equity securities issued by an Employer or a Related
Company that are publicly traded and are "qualifying employer
securities" as defined in Section 407(d)(5) of ERISA.
8.2 Investment Funds
The Sponsor shall determine the number and type of Investment
Funds and select the investments for such Investment Funds. The
Sponsor shall communicate the same and any changes therein in
writing to the Administrator and the Trustee. Each Investment
Fund shall be held and administered as a separate common trust
fund. The interest of each Participant or Beneficiary under the
Plan in any Investment Fund shall be an undivided interest.
The Sponsor may determine to offer one or more Investment Funds
that are invested in whole or in part in equity securities issued
by an Employer or a Related Company that are publicly traded and
are "qualifying employer securities" as defined in Section
407(d)(5) of ERISA.
8.3 Loan Investment Fund
If a loan from the Plan to a Participant is approved in
accordance with the provisions of Article XII, the Sponsor shall
direct the establishment and maintenance of a loan Investment
Fund in the Participant's name. The assets of the loan
Investment Fund shall be held as a separate trust fund. A
Participant's loan Investment Fund shall be invested in the note
reflecting the loan that is executed by the Participant in
accordance with the provisions of Article XII. Notwithstanding
any other provision of the Plan to the contrary, income received
with respect to a Participant's loan Investment Fund shall be
allocated and the loan Investment Fund shall be administered as
provided in Article XII.
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8.4 Income on Trust
Any dividends, interest, distributions, or other income received
by the Trustee with respect to any Trust Fund maintained
hereunder shall be allocated by the Trustee to the Trust Fund for
which the income was received.
8.5 Separate Accounts
There shall be established a Separate Account in the name of each
Employee reflecting his interest in the Trust. Each Separate
Account shall be maintained and administered for each Participant
and Beneficiary in accordance with the provisions of the Plan.
The balance of each Separate Account shall be the balance of the
account after all credits and charges thereto, for and as of such
date, have been made as provided herein.
8.6 Sub-Accounts
A Participant's Separate Account shall be divided into individual
Sub-Accounts reflecting the portion of the Participant's Separate
Account that is derived from Tax-Deferred Contributions, Rollover
Contributions, or Employer Contributions. Each Sub-Account shall
reflect separately contributions allocated to each Trust Fund
maintained hereunder and the earnings and losses attributable
thereto. The Employer Contributions Sub-Account shall reflect
separately that portion of such Sub-Account that is derived from
Employer Contributions that may be taken into account to satisfy
the limitations on contributions for Highly Compensated Employees
contained in Article VII. Such other Sub-Accounts may be
established as are necessary or appropriate to reflect a
Participant's interest in the Trust, including those Sub-Accounts
provided for under Section 5.2.
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ARTICLE IX
LIFE INSURANCE CONTRACTS
9.1 No Life Insurance Contracts
There shall be no life insurance contracts purchased under the
Plan.
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ARTICLE X
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
10.1 Future Contribution Investment Elections
Each Eligible Employee shall make an investment election in the
manner and form prescribed by the Administrator directing the
manner in which his Tax-Deferred Contributions, Rollover
Contributions, Employer Contributions, Barclays Plan Transferred
Contributions Sub-Accounts and Incentive Savings Plan Transferred
Contributions Sub-Accounts shall be invested. An Eligible
Employee's investment election shall specify the percentage, in
the percentage increments prescribed by the Administrator, of
such contributions that shall be allocated to one or more of the
Investment Funds with the sum of such percentages equaling 100
percent. The investment election by a Participant shall remain
in effect until his entire interest under the Plan is distributed
or forfeited in accordance with the provisions of the Plan or
until he files a change of investment election with the
Administrator, in such form as the Administrator shall prescribe.
A Participant's change of investment election may be made
effective as of the date or dates prescribed by the
Administrator.
10.2 Deposit of Contributions
All Tax-Deferred Contributions, Rollover Contributions, Employer
Contributions, Barclays Plan Transferred Contributions and
Incentive Savings Plan Transferred Contributions shall be
deposited in the Trust and allocated among the Investment Funds
in accordance with the Participant's currently effective
investment election; provided, however, that any contributions
made to the Plan in qualifying employer securities shall be
allocated to the Employer securities Investment Fund established
by the Sponsor, pending directions to the Administrator regarding
their future investment. If no investment election is on file
with the Administrator at the time contributions are to be
deposited to a Participant's Separate Account, the Participant
shall be notified and an investment election form shall be
provided to him. Until such Participant shall make an effective
election under this Section, his contributions shall be allocated
among the Investment Funds as directed by the Administrator.
10.3 Election to Transfer Between Funds
A Participant may elect to transfer investments from any
Investment Fund to any other Investment Fund. The Participant's
transfer election shall specify either (i) a percentage, in the
percentage increments prescribed by the Administrator, of the
amount eligible for transfer, which percentage may not exceed 100
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percent, or (ii) a dollar amount that is to be transferred.
Subject to any restrictions pertaining to a particular Investment
Fund, a Participant's transfer election may be made effective as
of the date or dates prescribed by the Administrator.
10.4 404(c) Plan
The Plan is intended to constitute a plan described in Section
404(c) of ERISA and regulations issued thereunder. The
fiduciaries of the Plan may be relieved of liability for any
losses that are the direct and necessary result of investment
instructions given by a Participant, his Beneficiary, or an
alternate payee under a qualified domestic relations order.
10.5 Election Restrictions
Notwithstanding any other provision of the Plan to the contrary,
the Administrator may impose such restrictions on the form and
implementation of investment elections, including transfer
elections, or on any Participant or Participants, as the
Administrator for any reason considers necessary or appropriate,
including compliance by the Plan or any Participant with any
provision of the federal securities laws or any rule or
interpretation thereunder.
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ARTICLE XI
CREDITING AND VALUING SEPARATE ACCOUNTS
11.1 Crediting Separate Accounts
All contributions made under the provisions of the Plan shall be
credited to Separate Accounts in the Trust Fund by the Trustee,
in accordance with procedures established in writing by the
Administrator, either when received or on the succeeding
Valuation Date after valuation of the Trust Fund has been
completed for such Valuation Date as provided in Section 11.2, as
shall be determined by the Administrator.
11.2 Valuing Separate Accounts
Separate Accounts in the Trust Fund shall be valued by the
Trustee on the Valuation Date, in accordance with procedures
established in writing by the Administrator, either in the manner
adopted by the Trustee and approved by the Administrator or in
the manner set forth in Section 11.3 as Plan valuation
procedures, as determined by the Administrator.
11.3 Plan Valuation Procedures
With respect to the Trust Fund, the Administrator may determine
that the following valuation procedures shall be applied. As of
each Valuation Date hereunder, the portion of any Separate
Accounts in a Trust Fund shall be adjusted to reflect any
increase or decrease in the value of the Trust Fund for the
period of time occurring since the immediately preceding
Valuation Date for the Trust Fund (the "valuation period") in the
following manner:
(a) First, the value of the Trust Fund shall be determined by
valuing all of the assets of the Trust Fund at fair market
value.
(b) Next, the net increase or decrease in the value of the
Trust Fund attributable to net income and all profits and
losses, realized and unrealized, during the valuation
period shall be determined on the basis of the valuation
under paragraph (a) taking into account appropriate
adjustments for contributions, loan payments, and
transfers to and distributions, withdrawals, loans, and
transfers from such Trust Fund during the valuation
period.
(c) Finally, the net increase or decrease in the value of the
Trust Fund shall be allocated among Separate Accounts in
the Trust Fund in the ratio of the balance of the portion
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of such Separate Account in the Trust Fund as of the
preceding Valuation Date less any distributions,
withdrawals, loans, and transfers from such Separate
Account balance in the Trust Fund since the Valuation Date
to the aggregate balances of the portions of all Separate
Accounts in the Trust Fund similarly adjusted, and each
Separate Account in the Trust Fund shall be credited or
charged with the amount of its allocated share.
Notwithstanding the foregoing, the Administrator may adopt
such accounting procedures as it considers appropriate and
equitable to establish a proportionate crediting of net
increase or decrease in the value of the Trust Fund for
contributions, loan payments, and transfers to and
distributions, withdrawals, loans, and transfers from such
Trust Fund made by or on behalf of a Participant during
the valuation period.
11.4 Finality of Determinations
The Trustee shall have exclusive responsibility for determining
the balance of each Separate Account maintained hereunder. The
Trustee's determinations thereof shall be conclusive upon all
interested parties.
11.5 Notification
Within a reasonable period of time after the end of each Plan
Year, the Administrator shall notify each Participant and
Beneficiary of the balances of his Separate Account and Sub-
Accounts as of a Valuation Date during the Plan Year.
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ARTICLE XII
LOANS
12.1 Application for Loan
A Participant who is a party in interest may make written
application to the Administrator for a loan from his Separate
Account.
As collateral for any loan granted hereunder, the Participant
shall grant to the Plan a security interest in his vested
interest under the Plan equal to the amount of the loan;
provided, however, that in no event may the security interest
exceed 50 percent of the Participant's vested interest under the
Plan determined as of the date as of which the loan is originated
in accordance with Plan provisions. In the case of a Participant
who is an active employee, the Participant also shall enter into
an agreement to repay the loan by payroll withholding. No loan
in excess of 50 percent of the Participant's vested interest
under the Plan shall be made from the Plan. Loans shall not be
made available to Highly Compensated Employees in an amount
greater than the amount made available to other employees.
A loan shall not be granted unless the Participant consents in
writing to the charging of his Separate Account for unpaid
principal and interest amounts in the event the loan is declared
to be in default.
12.2 Reduction of Account Upon Distribution
Notwithstanding any other provision of the Plan, the amount of a
Participant's Separate Account that is distributable to the
Participant or his Beneficiary under Article XIII or XV shall be
reduced by the portion of his vested interest that is held by the
Plan as security for any loan outstanding to the Participant,
provided that the reduction is used to repay the loan. If
distribution is made because of the Participant's death prior to
the commencement of distribution of his Separate Account and less
than 100 percent of the Participant's vested interest in his
Separate Account (determined without regard to the preceding
sentence) is payable to his surviving spouse, then the balance of
the Participant's vested interest in his Separate Account shall
be adjusted by reducing the vested account balance by the amount
of the security used to repay the loan, as provided in the
preceding sentence, prior to determining the amount of the
benefit payable to the surviving spouse.
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12.3 Requirements to Prevent a Taxable Distribution
Notwithstanding any other provision of the Plan to the contrary,
the following terms and conditions shall apply to any loan made
to a Participant under this Article:
(a) The interest rate on any loan to a Participant shall be a
reasonable interest rate commensurate with current
interest rates charged for loans made under similar
circumstances by persons in the business of lending money.
(b) The amount of any loan to a Participant (when added to the
outstanding balance of all other loans to the Participant
from the Plan or any other plan maintained by an Employer
or a Related Company) shall not exceed the lesser of:
(i) $50,000, reduced by the excess, if any, of the
highest outstanding balance of any other loan to the
Participant from the Plan or any other plan
maintained by an Employer or a Related Company during
the preceding 12-month period over the outstanding
balance of such loans on the date a loan is made
hereunder; or
(ii) 50 percent of the vested portions of the
Participant's Separate Account and his vested
interest under all other plans maintained by an
Employer or a Related Company.
(c) The term of any loan to a Participant shall be no greater
than five years, except in the case of a loan used to
acquire any dwelling unit which within a reasonable period
of time is to be used (determined at the time the loan is
made) as a principal residence of the Participant.
(d) Except as otherwise permitted under Treasury regulations,
substantially level amortization shall be required over
the term of the loan with payments made not less
frequently than quarterly.
12.4 Administration of Loan Investment Fund
Upon approval of a loan to a Participant, the Administrator shall
direct the Trustee to transfer an amount equal to the loan amount
from the Investment Funds in which it is invested, as directed by
the Administrator, to the loan Investment Fund established in the
Participant's name. Any loan approved by the Administrator shall
be made to the Participant out of the Participant's loan
Investment Fund. All principal and interest paid by the
Participant on a loan made under this Article shall be deposited
to his Separate Account and shall be allocated upon receipt among
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the Investment Funds in accordance with the Participant's
currently effective investment election. The balance of the
Participant's loan Investment Fund shall be decreased by the
amount of principal payments and the loan Investment Fund shall
be terminated when the loan has been repaid in full.
12.5 Default
If a Participant fails to make or cause to be made, any payment
required under the terms of the loan within 90 days following the
date on which such payment shall become due or there is an
outstanding principal balance existing on a loan after the last
scheduled repayment date, the Administrator may direct the
Trustee to declare the loan to be in default, and the entire
unpaid balance of such loan, together with accrued interest,
shall be immediately due and payable. In any such event, if such
balance and interest thereon is not then paid, the Trustee shall
charge the Separate Account of the borrower with the amount of
such balance and interest as of the earliest date a distribution
may be made from the Plan to the borrower without adversely
affecting the tax qualification of the Plan or of the cash or
deferred arrangement.
12.6 Special Rules Applicable to Loans
Any loan made hereunder shall be subject to the following rules:
(a) Loans limited to Eligible Employees: No loans shall be
made to an Employee who makes a Rollover Contribution in
accordance with Article IV, but who is not an Eligible
Employee as provided in Article III.
(b) Minimum Loan Amount: A Participant may not request a loan
for less than $1,000.
(c) Maximum Number of Outstanding Loans: A Participant may
not have more than two outstanding loans at any time. A
Participant with two outstanding loans may not apply for
another loan until all but one of the existing loans is
repaid in full and may not refinance an existing loan or
obtain a third loan for the purpose of paying off an
existing loan. A Participant may not apply for more than
two loans during the Plan Year.
(d) Maximum Period for Real Estate Loans: The term of any
loan to a Participant that is used to acquire any dwelling
unit which within a reasonable period of time is to be
used (determined at the time the loan is made) as a
principal residence of the Participant shall be no greater
than ten years, except with respect to any such loan
transferred to the Plan from the Incentive Savings Plan on
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July 1, 1996 which has a longer duration, in which case
such longer duration shall apply.
(e) Pre-Payment Without Penalty: A Participant may pre-pay
the balance of any loan hereunder prior to the date it is
due without penalty.
(f) Effect of Termination of Employment: Upon a Participant's
termination of employment, the balance of any outstanding
loan hereunder shall immediately become due and owing.
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ARTICLE XIII
WITHDRAWALS WHILE EMPLOYED
13.1 Withdrawals of Barclays Plan Transferred After-Tax
Contributions and Barclays Plan Transferred Deductible
Employee Contributions
A Participant who is employed by an Employer or a Related Company
may elect in writing, subject to the limitations and conditions
prescribed in this Article, to make a cash withdrawal from his
Barclays Plan Transferred After-Tax Contributions Sub-Account or
his Barclays Plan Transferred Deductible Employee Contributions
Sub-Account.
13.2 Withdrawals of Incentive Savings Plan Transferred
After-Tax Contributions
A Participant who is employed by an Employer or a Related Company
may elect in writing, subject to the limitations and conditions
prescribed in this Article, to make a cash withdrawal from his
Incentive Savings Plan Transferred After-Tax Contributions Sub-
Account.
13.3 Withdrawals of Rollover Contributions
A Participant who is employed by an Employer or a Related Company
may elect in writing, subject to the limitations and conditions
prescribed in this Article, to make a cash withdrawal from his
Rollover Contributions Sub-Account.
13.4 Withdrawals of Barclays Plan Transferred Rollover
Contributions
A Participant who is employed by an Employer or a Related Company
may elect in writing, subject to the limitations and conditions
prescribed in this Article, to make a cash withdrawal from his
Barclays Plan Transferred Rollover Contributions Sub-Account.
13.5 Withdrawals of Incentive Savings Plan Transferred
Rollover Contributions
A Participant who is employed by an Employer or a Related Company
may elect in writing, subject to the limitations and conditions
prescribed in this Article, to make a cash withdrawal from his
Incentive Savings Plan Transferred Rollover Contributions Sub-
Account.
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13.6 Withdrawals of Employer Contributions
A Participant who is employed by an Employer or a Related Company
and has attained age 59 1/2 or is determined by the Administrator
to have incurred a hardship as defined in this Article may elect
in writing, subject to the limitations and conditions prescribed
in this Article, to make a cash withdrawal from his vested
interest in his Employer Contributions Sub-Account. The maximum
amount that a Participant may withdraw pursuant to this Section
shall be an amount ("X") determined by the following formula:
X = P(AB + D) - D
For purposes of the formula:
P = The Participant's vested interest in his Employer
Contributions Sub-Account on the date distribution is
to be made.
AB = The balance of the Participant's Employer
Contributions Sub-Account as of the Valuation Date
immediately preceding the date distribution is to be
made.
D = The amount of all prior withdrawals from the
Participant's Employer Contributions Sub-Account made
pursuant to this Section.
13.7 Withdrawals of Barclays Plan Transferred Employer
Contributions
A Participant who is employed by an Employer or a Related Company
and has attained age 59 1/2 or has been a Participant under the
Plan, the Incentive Savings Plan and/or the Barclays Plan for 5
or more years may elect in writing, subject to the limitations
and conditions prescribed in this Article to make a cash
withdrawal from his vested interest in his Barclays Plan
Transferred Employer Contributions Sub-Account. Notwithstanding
the foregoing, in no event may a Participant withdraw that
portion of his Barclays Plan Transferred Employer Contributions
Sub-Account that is attributable to Employer Contributions that
may be taken into account to satisfy the limitations on
contributions for Highly Compensated Employees contained in
Article VII prior to the Participant's attainment of age 59 1/2.
The maximum amount that a Participant may withdraw pursuant to
this Section shall be an amount ("X") determined by the following
formula:
X = P(AB + D) - D
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For purposes of the formula:
P = The Participant's vested interest in his Barclays
Plan Transferred Employer Contributions Sub-Account
on the date distribution is to be made; provided,
however, that if the distribution is to be made prior
to the Participant's attainment of age 59 1/2, his
vested interest shall be determined without regard to
his vested interest in that portion of his Barclays
Plan Transferred Employer Contributions Sub-Account
that is attributable to Employer Contributions that
may be taken into account to satisfy the limitations
on contributions for Highly Compensated Employees
contained in Article VII.
AB = The balance of the Participant's Barclays Plan
Transferred Employer Contributions Sub-Account as of
the Valuation Date immediately preceding the date
distribution is to be made; provided, however, that
if the distribution is to be made prior to the
Participant's attainment of age 59 1/2, such balance
shall exclude that portion of his Barclays Plan
Transferred Employer Contributions Sub-Account that
is attributable to Employer Contributions that may be
taken into account to satisfy the limitations on
contributions for Highly Compensated Employees
contained in Article VII.
D = The amount of all prior withdrawals from the
Participant's Barclays Plan Transferred Employer
Contributions Sub-Account made pursuant to this
Section.
13.8 Withdrawals of Incentive Savings Plan Transferred
Employer Contributions
A Participant who is employed by an Employer or a Related Company
and has attained age 59 1/2 or has been a Participant under the
Plan and/or the Incentive Savings Plan for 5 or more years may
elect in writing, subject to the limitations and conditions
prescribed in this Article, to make a cash withdrawal from his
vested interest in his Incentive Savings Plan Transferred
Employer Contributions Sub-Account. In addition, a Participant
who is employed by an Employer or a Related Company may elect in
writing, subject to the limitations and conditions prescribed in
this Article, to make a withdrawal from his vested interest in
amounts credited to his Incentive Savings Plan Transferred
Employer Contributions Sub-Account which were originally
contributed to the Incentive Savings Plan more than 24 months
prior to the date of such withdrawal. Notwithstanding the
foregoing, in no event may a Participant withdraw that portion of
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his Incentive Savings Plan Transferred Employer Contributions
that is attributable to Employer Contributions that may be taken
into account to satisfy the limitations on contributions for
Highly Compensated Employees contained in Article VII prior to
the Participant's attainment of age 59 1/2. The maximum amount
that a Participant may withdraw pursuant to this Section shall be
an amount ("X") determined by the following formula:
X = P(AB + D) - D
For purposes of the formula:
P = The Participant's vested interest in his Incentive
Savings Plan Transferred Employer Contributions Sub-
Account on the date distribution is to be made;
provided, however, that if the distribution is to be
made prior to the Participant's attainment of age
59 1/2, his vested interest shall be determined
without regard to his vested interest in that portion
of his Incentive Savings Plan Transferred Employer
Contributions Sub-Account that is attributable to
Employer Contributions that may be taken into account
to satisfy the limitations on contributions for
Highly Compensated Employees contained in Article
VII.
AB = The balance of the Participant's Incentive Savings
Plan Transferred Employer Contributions Sub-Account
as of the Valuation Date immediately preceding the
date distribution is to be made; provided, however,
that if the distribution is to be made prior to the
Participant's attainment of age 59 1/2, such balance
shall exclude that portion of his Incentive Savings
Plan Transferred Employer Contributions Sub-Account
that is attributable to Employer Contributions that
may be taken into account to satisfy the limitations
on contributions for Highly Compensated Employees
contained in Article VII.
D = The amount of all prior withdrawals from the
Participant's Incentive Savings Plan Transferred
Employer Contributions Sub-Account made pursuant to
this Section.
13.9 Withdrawals of Tax-Deferred Contributions
A Participant who is employed by an Employer or a Related Company
and who has attained age 59 1/2 or is determined by the
Administrator to have incurred a hardship as defined in this
Article may elect in writing, subject to the limitations and
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conditions prescribed in this Article, to make a cash withdrawal
from his Tax-Deferred Contributions Sub-Account.
13.10 Withdrawals of Barclays Plan Transferred Tax-Deferred
Contributions
A Participant who is employed by an Employer or a Related Company
and who has attained age 59 1/2 or is determined by the
Administrator to have incurred a hardship as defined in this
Article may elect in writing, subject to the limitations and
conditions prescribed in this Article, to make a cash withdrawal
from his Barclays Plan Transferred Tax-Deferred Contributions
Sub-Account.
13.11 Limitations on Withdrawals Other than Hardship Withdrawals
Withdrawals made pursuant to this Article, other than hardship
withdrawals (which are subject to the conditions and limitations
prescribed in Section 13.14) and withdrawals of amounts
transferred to the Plan from the Incentive Savings Plan (which
withdrawals are subject to the conditions and limitations
prescribed in Sections 13.12 and 13.13), shall be subject to the
following conditions and limitations:
A Participant must file a written withdrawal application
with the Administrator such number of days prior to the
date as of which it is to be effective as the
Administrator shall prescribe.
Withdrawals may be made effective as soon as reasonably
practicable following the Administrator's receipt of the
Participant's directions.
A Participant who makes a withdrawal from his Rollover
Contributions Sub-Account may not make a further
withdrawal of Rollover Contributions under this Article
during the remainder of the Plan Year in which the
withdrawal is made effective if such withdrawal is made
prior to the date the Participant attains age 59 1/2.
13.12 Limitations on Withdrawals of Barclays Plan Transferred
Contributions Other than Hardship Withdrawals
Withdrawals from a Participant's Barclays Plan Transferred
Contributions Sub-Accounts made pursuant to this Article, other
than hardship withdrawals, shall be subject to the following
conditions and limitations:
A Participant must file a written withdrawal application
with the Administrator such number of days prior to the
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date as of which it is to be effective as the
Administrator shall prescribe.
Withdrawals may be made effective as soon as reasonably
practicable following the Administrator's receipt of the
Participant's directions.
A Participant who makes a withdrawal from his Barclays
Plan Transferred Rollover Contributions Sub-Account may
not make a further withdrawal of such Rollover
Contributions under this Article during the three month
period beginning on the date such withdrawal is made
effective.
A Participant who makes a withdrawal from his Barclays
Plan Transferred After-Tax Contributions Sub-Account may
not make a further withdrawal of such After-Tax
Contributions under this Article during the three month
period beginning on the date such withdrawal is made
effective.
13.13 Limitations on Withdrawals of Incentive Savings Plan
Transferred Contributions
Withdrawals from a Participant's Incentive Savings Plan
Transferred Contributions Sub-Accounts made pursuant to this
Article shall be subject to the following conditions and
limitations:
A Participant must file a written withdrawal application
with the Administrator such number of days prior to the
date as of which it is to be effective as the
Administrator shall prescribe.
Withdrawals may be made effective as soon as reasonably
practicable following the Administrator's receipt of the
Participant's directions, provided that withdrawals of
Incentive Savings Plan Transferred After-Tax Contributions
and Incentive Savings Plan Transferred Rollover
Contributions shall be made effective no later than the
Valuation Date next following the expiration of the 30-day
period beginning on the date the written withdrawal
application was filed with the Administrator.
A Participant who makes a withdrawal from his Incentive
Savings Plan Transferred After-Tax Contributions Sub-
Account may not make a further withdrawal from such Sub-
Account under this Article during the twelve month period
beginning on the date such withdrawal is made effective.
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A Participant who makes a withdrawal from his Incentive
Savings Plan Transferred Rollover Contributions Sub-
Account may not make a further withdrawal from such Sub-
Account under this Article during the twelve month period
beginning on the date such withdrawal is made effective.
A Participant who makes a withdrawal of amounts credited
to his Incentive Savings Plan Transferred Employer
Contributions Sub-Account which were originally
contributed to the Incentive Savings Plan more than 24
months prior to the date of such withdrawal may not make a
further withdrawal from such Sub-Account under this
Article during the twelve month period beginning on the
date such withdrawal is made effective; provided, however,
that if the Participant has been a Participant in the Plan
and/or the Incentive Savings Plan for 5 or more years, the
Participant may make a second withdrawal from such Sub-
Account under this Article before the expiration of such
twelve month period, but the Participant may not make a
further withdrawal from such Sub-Account under this
Article during the twelve month period beginning on the
date such second withdrawal is made effective.
13.14 Conditions and Limitations on Hardship Withdrawals
A Participant may apply for a hardship withdrawal only from his
Tax-Deferred Contributions Sub-Account or Barclays Plan
Transferred Tax-Deferred Contributions Sub-Account. A
Participant must file a written application for a hardship
withdrawal with the Administrator such number of days prior to
the date as of which it is to be effective as the Administrator
may prescribe. Hardship withdrawals may be made effective as soon
as reasonably practicable following the Administrator's receipt
of the Participant's directions. The Administrator shall grant a
hardship withdrawal only if it determines that the withdrawal is
necessary to meet an immediate and heavy financial need of the
Participant. An immediate and heavy financial need of the
Participant means a financial need on account of:
(a) expenses previously incurred by or necessary to obtain for
the Participant, the Participant's spouse, or any
dependent of the Participant (as defined in Section 152 of
the Code) medical care described in Section 213(d) of the
Code;
(b) costs directly related to the purchase (excluding mortgage
payments) of a principal residence for the Participant;
(c) payment of tuition, related educational fees, and room and
board expenses for the next 12 months of post-secondary
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education for the Participant, the Participant's spouse,
or any dependent of the Participant; or
(d) the need to prevent the eviction of the Participant from
his principal residence or foreclosure on the mortgage of
the Participant's principal residence.
A withdrawal shall be deemed to be necessary to satisfy an
immediate and heavy financial need of a Participant only if all
of the following requirements are satisfied:
The withdrawal is not in excess of the amount of the
immediate and heavy financial need of the Participant.
The Participant has obtained all distributions, other than
hardship distributions, and all non-taxable loans
currently available under all plans maintained by an
Employer or any Related Company.
The Participant's Tax-Deferred Contributions and the
Participant's elective tax-deferred contributions and
employee after-tax contributions under all other tax-
qualified plans maintained by an Employer or any Related
Company shall be suspended for at least twelve months
after his receipt of the withdrawal.
The Participant shall not make Tax-Deferred Contributions
or elective tax-deferred contributions under any other
tax-qualified plan maintained by an Employer or any
Related Company for the Participant's taxable year
immediately following the taxable year of the withdrawal
in excess of the applicable limit under Section 402(g) of
the Code for such next taxable year less the amount of the
Participant's Tax-Deferred Contributions and elective tax-
deferred contributions under any other plan maintained by
an Employer or any Related Company for the taxable year of
the withdrawal.
The minimum hardship withdrawal that a Participant may make is
$1,000. The amount of hardship withdrawal may include any
amounts necessary to pay any Federal, state, or local income
taxes or penalties reasonably anticipated to result from the
distribution. The maximum amount that a Participant may withdraw
pursuant to this Section because of a hardship is the balance of
his Tax-Deferred Contributions Sub-Account and Barclays Plan
Transferred Tax-Deferred Contributions Sub-Account, exclusive of
any earnings credited to such Sub-Accounts. A Participant shall
not fail to be treated as an Eligible Employee for purposes of
applying the limitations contained in Article VII of the Plan
merely because his Tax-Deferred Contributions are suspended in
accordance with this Section.
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13.15 Order of Withdrawal from a Participant's Sub-Accounts
Distribution of a withdrawal amount shall be made from a
Participant's Sub-Accounts, to the extent necessary, in the order
prescribed by the Administrator, which order shall be uniform
with respect to all Participants and non-discriminatory. If the
Sub-Account from which a Participant is receiving a withdrawal is
invested in more than one Investment Fund, the withdrawal shall
be charged against the Investment Funds as directed by the
Administrator.
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ARTICLE XIV
TERMINATION OF EMPLOYMENT AND SETTLEMENT DATE
14.1 Termination of Employment and Settlement Date
A Participant's Settlement Date shall occur on the date he
terminates employment with an Employer and all Related Companies
because of death, disability, retirement, or other termination of
employment. Written notice of a Participant's Settlement Date
shall be given by the Administrator to the Trustee.
14.2 Separate Accounting for Non-Vested Amounts
If as of a Participant's Settlement Date the Participant's vested
interest in his Employer Contributions Sub-Account is less than
100 percent, that portion of his Employer Contributions Sub-
Account and Incentive Savings Plan Transferred Employer
Contributions Sub-Account that is not vested shall be accounted
for separately from the vested portion and shall be disposed of
as provided in the following Section. If prior to his Settlement
Date such a Participant made a withdrawal in accordance with the
provisions of Article XIII, the vested portion of his Employer
Contributions Sub-Account shall be equal to the maximum
withdrawable amount as determined under Article XIII, without
regard to any exclusion for amounts attributable to Employer
Contributions that may be taken into account to satisfy the
limitations on contributions for Highly Compensated Employees
contained in Article VII.
14.3 Disposition of Non-Vested Amounts
That portion of a Participant's Employer Contributions Sub-
Account and Incentive Savings Plan Transferred Employer
Contributions Sub-Account that is not vested upon the occurrence
of his Settlement Date shall be disposed of as follows:
(a) If the Participant has no vested interest in his Separate
Account upon the occurrence of his Settlement Date or his
vested interest in his Separate Account as of the date of
distribution does not exceed $3,500 resulting in the
Participant's receipt of a single sum payment of such
vested interest, the non-vested balance remaining in the
Participant's Employer Contributions Sub-Account and
Incentive Savings Plan Transferred Employer Contributions
Sub-Account will be forfeited and his Separate Account
closed as of (i) the Participant's Settlement Date, if the
Participant has no vested interest in his Separate
Account, or (ii) the date the single sum payment occurs.
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(b) If the Participant's vested interest in his Separate
Account exceeds $3,500 and the Participant is eligible for
and consents in writing to a single sum payment of his
vested interest in his Separate Account, the non-vested
balance remaining in the Participant's Employer
Contributions Sub-Account and Incentive Savings Plan
Transferred Employer Contributions Sub-Account will be
forfeited and his Separate Account closed as of the date
the single sum payment occurs, provided that such
distribution occurs prior to the end of the second Plan
Year beginning on or after the Participant's Settlement
Date.
(c) If neither paragraph (a) nor paragraph (b) is applicable,
the non-vested portion of the Participant's Employer
Contributions Sub-Account and Incentive Savings Plan
Transferred Employer Contributions Sub-Account will
continue to be held in such Sub-Account and will not be
forfeited until the end of the five-year period beginning
on his Settlement Date.
Whenever the non-vested portion of a Participant's Employer
Contributions Sub-Account or Incentive Savings Plan Transferred
Employer Contributions Sub-Account is forfeited under the
provisions of the Plan with respect to a Plan Year, the amount of
such forfeiture, as of the last day of the Plan Year, shall be
allocated among the Separate Accounts of Participants eligible to
participate in the allocation of Employer Contributions made by
all Employers for the Plan Year in which the forfeiture occurs.
Any forfeited amounts shall be allocated in the ratio which an
eligible Participant's Compensation for the Plan Year from all
Employers bears to the aggregate of such Compensation for all
such Participants. Forfeitures credited to a Participant's
Separate Account hereunder shall be credited to his Employer
Contributions Sub-Account. A Participant's vested interest in
amounts attributable to forfeitures allocated to his Employer
Contributions Sub-Account shall be determined in the same way as
his vested interest in Employer Contributions.
14.4 Recrediting of Forfeited Amounts
A former Participant who forfeited the non-vested portion of his
Employer Contributions Sub-Account in accordance with the
provisions of this Article and who is reemployed by an Employer
or a Related Company shall have such forfeited amounts recredited
to a new Separate Account in his name, without adjustment for
interim gains or losses experienced by the Trust, if:
(a) he returns to employment with an Employer or a Related
Company before the end of the five-year period beginning
on the later of his Settlement Date or the date he
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received distribution of his vested interest in his
Separate Account;
(b) he resumes employment covered under the Plan before the
end of the five-year period beginning on the date he is
reemployed; and
(c) if he received distribution of his vested interest in his
Separate Account, he repays to the Plan the full amount of
such distribution before the end of the five-year period
beginning on the date he is reemployed.
Funds needed in any Plan Year to recredit the Separate Account of
a Participant with the amounts of prior forfeitures in accordance
with the preceding sentence shall come first from forfeitures
that arise during such Plan Year, and then from Trust income
earned in such Plan Year, with each Trust Fund being charged with
the amount of such income proportionately, unless his Employer
chooses to make an additional Employer Contribution, and shall
finally be provided by his Employer by way of a separate Employer
Contribution.
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ARTICLE XV
DISTRIBUTIONS
15.1 Distributions to Participants
A Participant whose Settlement Date occurs shall receive
distribution of his vested interest in his Separate Account in
the form provided under Article XVI beginning as soon as
reasonably practicable following his Settlement Date or the date
his application for distribution is filed with the Administrator,
if later, provided that a distribution of that portion of his
Separate Account attributable to Incentive Savings Plan
Transferred Contributions shall be distributed no later than 60
days following the end of the Plan Year in which his Settlement
Date occurs or the date his application for distribution is filed
with the Administrator, if later. In addition, a Participant who
continues in employment with an Employer or a Related Company
after his Normal Retirement Date may elect to receive
distribution of all or any portion of his Separate Account in the
form provided under Article XVI at any time following his Normal
Retirement Date.
15.2 Distributions to Beneficiaries
If a Participant dies prior to the date distribution of his
vested interest in his Separate Account begins under this
Article, his Beneficiary shall receive distribution of the
Participant's vested interest in his Separate Account in the form
provided under Article XVI beginning as soon as reasonably
practicable following the date the Beneficiary's application for
distribution is filed with the Administrator. Unless
distribution is to be made over the life or over a period certain
not greater than the life expectancy of the Beneficiary,
distribution of the Participant's entire vested interest shall be
made to the Beneficiary no later than the end of the fifth
calendar year beginning after the Participant's death. If
distribution is to be made over the life or over a period certain
no greater than the life expectancy of the Beneficiary,
distribution shall commence no later than:
(a) If the Beneficiary is not the Participant's spouse, the
end of the first calendar year beginning after the
Participant's death; or
(b) If the Beneficiary is the Participant's spouse, the later
of (i) the end of the first calendar year beginning after
the Participant's death or (ii) the end of the calendar
year in which the Participant would have attained age
70 1/2.
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If distribution is to be made to a Participant's spouse, it shall
be made available within a reasonable period of time after the
Participant's death that is no less favorable than the period of
time applicable to other distributions. If a Participant dies
after the date distribution of his vested interest in his
Separate Account begins under this Article, but before his entire
vested interest in his Separate Account is distributed, his
Beneficiary shall receive distribution of the remainder of the
Participant's vested interest in his Separate Account beginning
as soon as reasonably practicable following the Participant's
date of death in a form that provides for distribution at least
as rapidly as under the form in which the Participant was
receiving distribution.
15.3 Cash Outs and Participant Consent
Notwithstanding any other provision of the Plan to the contrary,
if a Participant's vested interest in his Separate Account does
not exceed $3,500, distribution of such vested interest shall be
made to the Participant in a single sum payment as soon as
reasonably practicable following his Settlement Date. If a
Participant's vested interest in his Separate Account is $0, he
shall be deemed to have received distribution of such vested
interest as of his Settlement Date. If a Participant's vested
interest in his Separate Account exceeds $3,500, distribution
shall not commence to such Participant prior to his Normal
Retirement Date without the Participant's written consent. If at
the time of a distribution or deemed distribution to a
Participant from his Separate Account, the Participant's vested
interest in his Separate Account exceeded $3,500, then for
purposes of this Section, the Participant's vested interest in
his Separate Account on any subsequent date shall be deemed to
exceed $3,500.
15.4 Required Commencement of Distribution
Notwithstanding any other provision of the Plan to the contrary,
distribution of a Participant's vested interest in his Separate
Account shall commence to the Participant no later than the
earlier of:
(a) 60 days after the close of the Plan Year in which (i) the
Participant's Normal Retirement Date occurs, (ii) the 10th
anniversary of the year in which he commenced
participation in the Plan occurs, or (iii) his Settlement
Date occurs, whichever is latest; or
(b) the April 1 following the close of the calendar year in
which he attains age 70 1/2, whether or not his Settlement
Date has occurred, except that if a Participant attained
age 70 1/2 prior to January 1, 1988, and was not a five-
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percent owner (as defined in Section 416 of the Code) at
any time during the five-Plan-Year period ending within
the calendar year in which he attained age 70 1/2,
distribution of such Participant's vested interest in his
Separate Account shall commence no later than the April 1
following the close of the calendar year in which he
attains age 70 1/2 or retires, whichever is later.
Distributions required to commence under this Section shall be
made in the form provided under Article XVI and in accordance
with Section 401(a)(9) of the Code and regulations issued
thereunder, including the minimum distribution incidental benefit
requirements.
15.5 Reemployment of a Participant
If a Participant whose Settlement Date has occurred is reemployed
by an Employer or a Related Company, he shall lose his right to
any distribution or further distributions from the Trust arising
from his prior Settlement Date and his interest in the Trust
shall thereafter be treated in the same manner as that of any
other Participant whose Settlement Date has not occurred.
15.6 Restrictions on Alienation
Except as provided in Section 401(a)(13) of the Code relating to
qualified domestic relations orders and Section 1.401(a)-13(b)(2)
of Treasury regulations relating to Federal tax levies and
judgments, no benefit under the Plan at any time shall be subject
in any manner to anticipation, alienation, assignment (either at
law or in equity), encumbrance, garnishment, levy, execution, or
other legal or equitable process; and no person shall have power
in any manner to anticipate, transfer, assign (either at law or
in equity), alienate or subject to attachment, garnishment, levy,
execution, or other legal or equitable process, or in any way
encumber his benefits under the Plan, or any part thereof, and
any attempt to do so shall be void.
15.7 Facility of Payment
If the Administrator finds that any individual to whom an amount
is payable hereunder is incapable of attending to his financial
affairs because of any mental or physical condition, including
the infirmities of advanced age, such amount (unless prior claim
therefor shall have been made by a duly qualified guardian or
other legal representative) may, in the discretion of the
Administrator, be paid to another person for the use or benefit
of the individual found incapable of attending to his financial
affairs or in satisfaction of legal obligations incurred by or on
behalf of such individual. The Trustee shall make such payment
only upon receipt of written instructions to such effect from the
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Administrator. Any such payment shall be charged to the Separate
Account from which any such payment would otherwise have been
paid to the individual found incapable of attending to his
financial affairs and shall be a complete discharge of any
liability therefor under the Plan.
15.8 Inability to Locate Payee
If any benefit becomes payable to any person, or to the executor
or administrator of any deceased person, and if that person or
his executor or administrator does not present himself to the
Administrator within a reasonable period after the Administrator
mails written notice of his eligibility to receive a distribution
hereunder to his last known address and makes such other diligent
effort to locate the person as the Administrator determines, that
benefit will be forfeited. However, if the payee later files a
claim for that benefit, the benefit will be restored.
15.9 Distribution Pursuant to Qualified Domestic Relations
Orders
Notwithstanding any other provision of the Plan to the contrary,
if a qualified domestic relations order so provides, distribution
may be made to an alternate payee pursuant to a qualified
domestic relations order, as defined in Section 414(p) of the
Code, regardless of whether the Participant's Settlement Date has
occurred or whether the Participant is otherwise entitled to
receive a distribution under the Plan.
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ARTICLE XVI
FORM OF PAYMENT
16.1 Normal Form of Payment
Unless the Participant, or his Beneficiary, if the Participant
had died, elects the optional form of payment, distribution shall
be made to the Participant, or his Beneficiary, as the case may
be, in a single sum payment. Distribution of the fair market
value of the Participant's Separate Account under either the
normal or optional forms of payment shall be made in cash or in
kind, as elected by the Participant.
16.2 Optional Form of Payment
A Participant, or his Beneficiary, as the case may be, may elect
to receive distribution of all or a portion of his Separate
Account in a series of installments over a period not exceeding
the life expectancy of the Participant, or the Participant's
Beneficiary, if the Participant has died, or a period not
exceeding the joint life and last survivor expectancy of the
Participant and his Beneficiary. Each installment shall be equal
in amount except as necessary to adjust for any changes in the
value of the Participant's Separate Account, unless the
Participant subsequently elects a more rapid distribution
schedule. The determination of life expectancies shall be made
on the basis of the expected return multiples in Table V and VI
of Section 1.72-9 of the Treasury regulations and shall be
calculated either once at the time installment payments begin or
annually for the Participant and/or his Beneficiary, if his
Beneficiary is his spouse, as determined by the Participant at
the time installment payments begin.
16.3 Change of Option Election
A Participant or Beneficiary who has elected the optional form of
payment may revoke or change his election at any time prior to
the date as of which his benefit commences by filing with the
Administrator a written election in the form prescribed by the
Administrator.
16.4 Direct Rollover
Notwithstanding any other provision of the Plan to the contrary,
in lieu of receiving distribution in the form of payment provided
under this Article, a "qualified distributee" may elect in
writing, in accordance with rules prescribed by the
Administrator, to have any portion or all of a distribution that
is an "eligible rollover distribution" paid directly by the Plan
to the "eligible retirement plan" designated by the "qualified
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distributee"; provided, however, that this provision shall not
apply if the total distribution is less than $200 and that a
"qualified distributee" may not elect this provision with respect
to a portion of a distribution that is less than $500. Any such
payment by the Plan to another "eligible retirement plan" shall
be a direct rollover. For purposes of this Section, the
following terms have the following meanings:
(a) An "eligible retirement plan" means an individual
retirement account described in Section 408(a) of the
Code, an individual retirement annuity described in
Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described
in Section 401(a) of the Code that accepts rollovers;
provided, however, that, in the case of a direct rollover
by a surviving spouse, an eligible retirement plan does
not include a qualified trust described in Section 401(a)
of the Code.
(b) An "eligible rollover distribution" means any distribution
of all or any portion of the balance of a Participant's
Separate Account; provided, however, that an eligible
rollover distribution does not include: any distribution
that is one of a series of substantially equal periodic
payments made not less frequently than annually for the
life or life expectancy of the qualified distributee or
the joint lives or joint life expectancies of the
qualified distributee and the qualified distributee's
designated beneficiary, or for a specified period of ten
years or more; and any distribution to the extent such
distribution is required under Section 401(a)(9) of the
Code or an annuity plan described in Section 403(a) of the
Code.
(c) A "qualified distributee" means a Participant, his
surviving spouse, or his spouse or former spouse who is an
alternate payee under a qualified domestic relations
order, as defined in Section 414(p) of the Code.
16.5 Notice Regarding Forms of Payment
Within the 60 day period ending 30 days before the date as of
which distribution of a Participant's Separate Account commences,
the Administrator shall provide the Participant with a written
explanation of his right to defer distribution until his Normal
Retirement Date, or such later date as may be provided in the
Plan, his right to make a direct rollover, and the forms of
payment available under the Plan. Distribution of the
Participant's Separate Account may commence less than 30 days
after such notice is provided to the Participant if (i) the
Administrator clearly informs the Participant of his right to
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consider his election of whether or not to make a direct rollover
or to receive a distribution prior to his Normal Retirement Date
and his election of a form of payment for a period of at least 30
days following his receipt of the notice and (ii) the
Participant, after receiving the notice, affirmatively elects an
early distribution.
16.6 Reemployment
If a Participant is reemployed by an Employer or a Related
Company prior to receiving distribution of the entire balance of
his vested interest in his Separate Account, his prior election
of a form of payment hereunder shall become ineffective.
16.7 Distribution in the Form of Employer Stock
Notwithstanding any other provision of the Plan to the contrary,
a Participant may elect to receive distribution of all or a
portion of the fair market value of his Separate Account invested
in Employer stock in the form of Employer stock, and fractional
shares of Employer stock shall be distributed in cash.
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ARTICLE XVII
BENEFICIARIES
17.1 Designation of Beneficiary
A married Participant's Beneficiary shall be his spouse, unless
the Participant designates a person or persons other than his
spouse as Beneficiary with his spouse's written consent. A
Participant may designate a Beneficiary on the form prescribed by
the Administrator. If no Beneficiary has been designated
pursuant to the provisions of this Section, or if no Beneficiary
survives the Participant and he has no surviving spouse, then the
Beneficiary under the Plan shall be the Participant's estate. If
a Beneficiary dies after becoming entitled to receive a
distribution under the Plan but before distribution is made to
him in full, and if no other Beneficiary has been designated to
receive the balance of the distribution in that event, the estate
of the deceased Beneficiary shall be the Beneficiary as to the
balance of the distribution.
17.2 Spousal Consent Requirements
Any written spousal consent given pursuant to this Article must
acknowledge the effect of the action taken and must be witnessed
by a Plan representative or a notary public. In addition, the
spouse's written consent must either (i) specify any non-spouse
Beneficiary designated by the Participant and that such
Beneficiary may not be changed without written spousal consent or
(ii) acknowledge that the spouse has the right to limit consent
to a specific Beneficiary, but permit the Participant to change
the designated Beneficiary without the spouse's further consent.
A Participant's spouse will be deemed to have given written
consent to the Participant's designation of Beneficiary if the
Participant establishes to the satisfaction of a Plan
representative that such consent cannot be obtained because the
spouse cannot be located or because of other circumstances set
forth in Section 401(a)(11) of the Code and regulations issued
thereunder. Any written consent given or deemed to have been
given by a Participant's spouse hereunder shall be valid only
with respect to the spouse who signs the consent.
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ARTICLE XVIII
ADMINISTRATION
18.1 Authority of the Sponsor
The Sponsor, which shall be the administrator of the Plan for
purposes of ERISA and the plan administrator of the Plan for
purposes of the Code, shall be responsible for the administration
of the Plan and, in addition to the powers and authorities
expressly conferred upon it in the Plan, shall have all such
powers and authorities as may be necessary to carry out the
provisions of the Plan, including the power and authority to
interpret and construe the provisions of the Plan, to make
benefit determinations, and to resolve any disputes which arise
under the Plan. The Sponsor may employ such attorneys, agents,
and accountants as it may deem necessary or advisable to assist
in carrying out its duties hereunder. The Sponsor shall be a
"named fiduciary" as that term is defined in Section 402(a)(2) of
ERISA. The Sponsor may:
(a) allocate any of the powers, authority, or responsibilities
for the operation and administration of the Plan (other
than trustee responsibilities as defined in Section
405(c)(3) of ERISA) among named fiduciaries; and
(b) designate a person or persons other than a named fiduciary
to carry out any of such powers, authority, or
responsibilities;
except that no allocation by the Sponsor of, or designation by
the Sponsor with respect to, any of such powers, authority, or
responsibilities to another named fiduciary or a person other
than a named fiduciary shall become effective unless such
allocation or designation shall first be accepted by such named
fiduciary or other person in a writing signed by it and delivered
to the Sponsor.
18.2 Action of the Sponsor
Any act authorized, permitted or required to be taken under the
Plan by the Sponsor, and which has not been delegated in
accordance with Section 18.1, may be taken by a majority of the
members of the board of directors of the Sponsor, either by vote
at a meeting, or in writing without a meeting, or by a committee
of employees of the Sponsor designated by the board of directors
to carry out such acts on behalf of the Sponsor. Any committee
so appointed may delegate to other employees of the Sponsor the
authority to take such actions with respect to the administration
of the Plan as it deems appropriate. All notices, advice,
directions, certifications, approvals and instructions required
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or authorized to be given by the Sponsor under the Plan shall be
in writing and signed by either (i) a majority of the members of
the board of directors of the Sponsor or by such member or
members as may be designated by an instrument in writing, signed
by all the members thereof, as having authority to execute such
documents on its behalf, or (ii) the committee authorized to act
for the Sponsor in accordance with the provisions of this
Section, or any person duly authorized by such committee.
18.3 Claims Review Procedure
Whenever a claim for benefits under the Plan filed by any person
(herein referred to as the "Claimant") is denied, whether in
whole or in part, the Sponsor shall transmit a written notice of
such decision to the Claimant within 90 days of the date the
claim was filed or, if special circumstances require an
extension, within 180 days of such date, which notice shall be
written in a manner calculated to be understood by the Claimant
and shall contain a statement of (i) the specific reasons for the
denial of the claim, (ii) specific reference to pertinent Plan
provisions on which the denial is based, and (iii) a description
of any additional material or information necessary for the
Claimant to perfect the claim and an explanation of why such
information is necessary. The notice shall also include a
statement advising the Claimant that, within 60 days of the date
on which he receives such notice, he may obtain review of such
decision in accordance with the procedures hereinafter set forth.
Within such 60-day period, the Claimant or his authorized
representative may request that the claim denial be reviewed by
filing with the Sponsor a written request therefor, which request
shall contain the following information:
(a) the date on which the Claimant's request was filed with
the Sponsor; provided, however, that the date on which the
Claimant's request for review was in fact filed with the
Sponsor shall control in the event that the date of the
actual filing is later than the date stated by the
Claimant pursuant to this paragraph;
(b) the specific portions of the denial of his claim which the
Claimant requests the Sponsor to review;
(c) a statement by the Claimant setting forth the basis upon
which he believes the Sponsor should reverse the previous
denial of his claim for benefits and accept his claim as
made; and
(d) any written material (offered as exhibits) which the
Claimant desires the Sponsor to examine in its
consideration of his position as stated pursuant to
paragraph (c) of this Section.
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Within 60 days of the date determined pursuant to paragraph (a)
of this Section or, if special circumstances require an
extension, within 120 days of such date, the Sponsor shall
conduct a full and fair review of the decision denying the
Claimant's claim for benefits and shall render its written
decision on review to the Claimant. The Sponsor's decision on
review shall be written in a manner calculated to be understood
by the Claimant and shall specify the reasons and Plan provisions
upon which the Sponsor's decision was based.
18.4 Qualified Domestic Relations Orders
The Sponsor shall establish reasonable procedures to determine
the status of domestic relations orders and to administer
distributions under domestic relations orders which are deemed to
be qualified orders. Such procedures shall be in writing and
shall comply with the provisions of Section 414(p) of the Code
and regulations issued thereunder.
18.5 Indemnification
In addition to whatever rights of indemnification the members of
the board of directors of the Sponsor or any employee or
employees of the Sponsor to whom any power, authority, or
responsibility is delegated pursuant to Section 18.2, may be
entitled under the articles of incorporation or regulations of
the Sponsor, under any provision of law, or under any other
agreement, the Sponsor shall satisfy any liability actually and
reasonably incurred by any such person or persons, including
expenses, attorneys' fees, judgments, fines, and amounts paid in
settlement (other than amounts paid in settlement not approved by
the Sponsor), in connection with any threatened, pending or
completed action, suit, or proceeding which is related to the
exercising or failure to exercise by such person or persons of
any of the powers, authority, responsibilities, or discretion as
provided under the Plan, or reasonably believed by such person or
persons to be provided hereunder, and any action taken by such
person or persons in connection therewith, unless the same is
judicially determined to be the result of such person or persons'
gross negligence or willful misconduct.
18.6 Actions Binding
Subject to the provisions of Section 18.3, any action taken by
the Sponsor which is authorized, permitted, or required under the
Plan shall be final and binding upon the Employers, the Trustee,
all persons who have or who claim an interest under the Plan, and
all third parties dealing with the Employers or the Trustee.
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ARTICLE XIX
AMENDMENT AND TERMINATION
19.1 Amendment
Subject to the provisions of Section 19.2, the Sponsor may at any
time and from time to time, by action of its board of directors,
or such officers of the Sponsor as are duly authorized by its
board of directors, amend the Plan, either prospectively or
retroactively; provided, however, that any committee which is
appointed by the board of directors to administer the Plan
pursuant to Section 18.2 may amend the Plan (i) in any manner
which does not materially affect the cost of providing benefits
under the Plan or administering the Plan, or (ii) to reflect any
amendments to the Plan that are required in the judgment of the
committee to maintain the Plan's tax-qualified status under
Section 401(a) of the Code.
19.2 Limitation on Amendment
No amendment to the Plan which shall decrease the accrued benefit
of any Participant or Beneficiary or permit any part of the Trust
to revert to an Employer or any Related Company or be used or be
diverted to purposes other than the exclusive benefit of
Participants and Beneficiaries.
19.3 Termination
The Sponsor reserves the right, by action of its board of
directors, to terminate the Plan as to all Employers at any time
(the effective date of such termination being hereinafter
referred to as the "termination date"). Upon any such
termination of the Plan, the following actions shall be taken for
the benefit of Participants and Beneficiaries:
(a) As of the termination date, each Investment Fund shall be
valued and all Separate Accounts and Sub-Accounts shall be
adjusted in the manner provided in Article XI, with any
unallocated contributions or forfeitures being allocated
as of the termination date in the manner otherwise
provided in the Plan. The termination date shall become a
Valuation Date for purposes of Article XI. In determining
the net worth of the Trust, there shall be included as a
liability such amounts as shall be necessary to pay all
expenses in connection with the termination of the Trust
and the liquidation and distribution of the property of
the Trust, as well as other expenses, whether or not
accrued, and shall include as an asset all accrued income.
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(b) All Separate Accounts shall then be disposed of to or for
the benefit of each Participant or Beneficiary in
accordance with the provisions of Article XV as if the
termination date were his Settlement Date; provided,
however, that notwithstanding the provisions of
Article XV, if the Plan does not offer an annuity option
and if neither his Employer nor a Related Company
establishes or maintains another defined contribution plan
(other than an employee stock ownership plan as defined in
Section 4975(e)(7) of the Code), the Participant's written
consent to the commencement of distribution shall not be
required regardless of the value of the vested portions of
his Separate Account.
(c) Notwithstanding the provisions of paragraph (b) of this
Section, no distribution shall be made to a Participant of
any portion of the balance of his Tax-Deferred
Contributions Sub-Account prior to his separation from
service (other than a distribution made in accordance with
Article XIII or required in accordance with Section
401(a)(9) of the Code) unless (i) neither his Employer nor
a Related Company establishes or maintains another defined
contribution plan (other than an employee stock ownership
plan as defined in Section 4975(e)(7) of the Code, a tax
credit employee stock ownership plan as defined in Section
409 of the Code, or a simplified employee pension as
defined in Section 408(k) of the Code) either at the time
the Plan is terminated or at any time during the period
ending 12 months after distribution of all assets from the
Plan; provided, however, that this provision shall not
apply if fewer than two percent of the Eligible Employees
under the Plan were eligible to participate at any time in
such other defined contribution plan during the 24-month
period beginning 12 months before the Plan termination,
and (ii) the distribution the Participant receives is a
"lump sum distribution" as defined in Section 402(e)(4) of
the Code, without regard to clauses (i), (ii), (iii), and
(iv) of sub-paragraph (A), sub-paragraph (B), or
sub-paragraph (H) thereof.
Notwithstanding anything to the contrary contained in the Plan,
upon any such Plan termination, the vested interest of each
Participant and Beneficiary in his Employer Contributions Sub-
Account shall be 100 percent; and, if there is a partial
termination of the Plan, the vested interest of each Participant
and Beneficiary who is affected by the partial termination in his
Employer Contributions Sub-Account shall be 100 percent. For
purposes of the preceding sentence only, the Plan shall be deemed
to terminate automatically if there shall be a complete
discontinuance of contributions hereunder by all Employers.
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19.4 Reorganization
The merger, consolidation, or liquidation of any Employer with or
into any other Employer or a Related Company shall not constitute
a termination of the Plan as to such Employer. If an Employer
disposes of substantially all of the assets used by the Employer
in a trade or business or disposes of a subsidiary and in
connection therewith one or more Participants terminates
employment but continues in employment with the purchaser of the
assets or with such subsidiary, no distribution from the Plan
shall be made to any such Participant prior to his separation
from service (other than a distribution made in accordance with
Article XIII or required in accordance with Section 401(a)(9) of
the Code), except that a distribution shall be permitted to be
made in such a case, subject to the Participant's consent (to the
extent required by law), if (i) the distribution would constitute
a "lump sum distribution" as defined in section 402(e)(4) of the
Code, without regard to clauses (i), (ii), (iii), or (iv) of
sub-paragraph (A), sub-paragraph (B), or sub-paragraph (H)
thereof, (ii) the Employer continues to maintain the Plan after
the disposition, (iii) the purchaser does not maintain the Plan
after the disposition, and (iv) the distribution is made by the
end of the second calendar year after the calendar year in which
the disposition occurred.
19.5 Withdrawal of an Employer
An Employer other than the Sponsor may withdraw from the Plan at
any time upon notice in writing to the Administrator (the
effective date of such withdrawal being hereinafter referred to
as the "withdrawal date"), and shall thereupon cease to be an
Employer for all purposes of the Plan. An Employer shall be
deemed automatically to withdraw from the Plan in the event of
its complete discontinuance of contributions, or, subject to
Section 19.4 and unless the Sponsor otherwise directs, it ceases
to be a Related Company of the Sponsor or any other Employer.
Upon the withdrawal of an Employer, the withdrawing Employer
shall determine whether a partial termination has occurred with
respect to its Employees. In the event that the withdrawing
Employer determines a partial termination has occurred, the
action specified in Section 19.3 shall be taken as of the
withdrawal date, as on a termination of the Plan, but with
respect only to Participants who are employed solely by the
withdrawing Employer, and who, upon such withdrawal, are neither
transferred to nor continued in employment with any other
Employer or a Related Company. The interest of any Participant
employed by the withdrawing Employer who is transferred to or
continues in employment with any other Employer or a Related
Company, and the interest of any Participant employed solely by
an Employer or a Related Company other than the withdrawing
Employer, shall remain unaffected by such withdrawal; no
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adjustment to his Separate Accounts shall be made by reason of
the withdrawal; and he shall continue as a Participant hereunder
subject to the remaining provisions of the Plan.
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ARTICLE XX
ADOPTION BY OTHER ENTITIES
20.1 Adoption by Related Companies
A Related Company that is not an Employer may, with the consent
of the Sponsor, adopt the Plan and become an Employer hereunder
by causing an appropriate written instrument evidencing such
adoption to be executed in accordance with the requirements of
its organizational authority. Any such instrument shall specify
the effective date of the adoption.
20.2 Effective Plan Provisions
An Employer who adopts the Plan shall be bound by the provisions
of the Plan in effect at the time of the adoption and as
subsequently in effect because of any amendment to the Plan.
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ARTICLE XXI
MISCELLANEOUS PROVISIONS
21.1 No Commitment as to Employment
Nothing contained herein shall be construed as a commitment or
agreement upon the part of any person to continue his employment
with an Employer or Related Company, or as a commitment on the
part of any Employer or Related Company to continue the
employment, compensation, or benefits of any person for any
period.
21.2 Benefits
Nothing in the Plan nor the Trust Agreement shall be construed to
confer any right or claim upon any person, firm, or corporation
other than the Employers, the Trustee, Participants, and
Beneficiaries.
21.3 No Guarantees
The Employers, the Administrator, and the Trustee do not
guarantee the Trust from loss or depreciation, nor do they
guarantee the payment of any amount which may become due to any
person hereunder.
21.4 Expenses
The expenses of administration of the Plan, including the
expenses of the Administrator and fees of the Trustee, shall be
paid from the Trust as a general charge thereon, unless the
Sponsor elects to make payment. Notwithstanding the foregoing,
the Sponsor may direct that administrative expenses that are
allocable to the Separate Account of a specific Participant shall
be paid from that Separate Account and the costs incident to the
management of the assets of an Investment Fund or to the purchase
or sale of securities held in an Investment Fund shall be paid by
the Trustee from such Investment Fund.
21.5 Precedent
Except as otherwise specifically provided, no action taken in
accordance with the Plan shall be construed or relied upon as a
precedent for similar action under similar circumstances.
21.6 Duty to Furnish Information
The Employers, the Administrator, and the Trustee shall furnish
to any of the others any documents, reports, returns, statements,
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or other information that the other reasonably deems necessary to
perform its duties hereunder or otherwise imposed by law.
21.7 Withholding
The Trustee shall withhold any tax which by any present or future
law is required to be withheld, and which the Administrator
notifies the Trustee in writing is to be so withheld, from any
payment to any Participant or Beneficiary hereunder.
21.8 Merger, Consolidation, or Transfer of Plan Assets
The Plan shall not be merged or consolidated with any other plan,
nor shall any of its assets or liabilities be transferred to
another plan, unless, immediately after such merger,
consolidation, or transfer of assets or liabilities, each
Participant in the Plan would receive a benefit under the Plan
which is at least equal to the benefit he would have received
immediately prior to such merger, consolidation, or transfer of
assets or liabilities (assuming in each instance that the Plan
had then terminated).
21.9 Back Pay Awards
The provisions of this Section shall apply only to an Employee or
former Employee who becomes entitled to back pay by an award or
agreement of an Employer without regard to mitigation of damages.
If a person to whom this Section applies was or would have become
an Eligible Employee after such back pay award or agreement has
been effected, and if any such person who had not previously
elected to make Tax-Deferred Contributions pursuant to Section
4.1 shall within 30 days of the date he receives notice of the
provisions of this Section make an election to make Tax-Deferred
Contributions in accordance with such Section 4.1 (retroactive to
any Enrollment Date as of which he was or has become eligible to
do so), then such Participant may elect that any Tax-Deferred
Contributions not previously made on his behalf but which, after
application of the foregoing provisions of this Section, would
have been made under the provisions of Article IV, shall be made
out of the proceeds of such back pay award or agreement. In
addition, if any such Employee or former Employee would have been
eligible to participate in the allocation of Employer
Contributions under the provisions of Article VI for any prior
Plan Year after such back pay award or agreement has been
effected, his Employer shall make an Employer Contribution equal
to the amount of the Employer Contribution which would have been
allocated to such Participant under the provisions of Article VI
as in effect during each such Plan Year. The amounts of such
additional contributions shall be credited to the Separate
Account of such Participant. Any additional contributions made
by such Participant and by an Employer pursuant to this Section
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shall be made in accordance with, and subject to, the limitations
of the applicable provisions of Articles IV, VI, and VII.
21.10 Condition on Employer Contributions
Notwithstanding anything to the contrary contained in the Plan or
the Trust Agreement, any contribution of an Employer hereunder is
conditioned upon the continued qualification of the Plan under
Section 401(a) of the Code, the exempt status of the Trust under
Section 501(a) of the Code, and the deductibility of the
contribution under Section 404 of the Code. Except as otherwise
provided in this Section and Section 21.11, however, in no event
shall any portion of the property of the Trust ever revert to or
otherwise inure to the benefit of an Employer or any Related
Company.
21.11 Return of Contributions to an Employer
Notwithstanding any other provision of the Plan or the Trust
Agreement to the contrary, in the event any contribution of an
Employer made hereunder:
(a) is made under a mistake of fact, or
(b) is disallowed as a deduction under Section 404 of the
Code,
such contribution may be returned to the Employer within one year
after the payment of the contribution or the disallowance of the
deduction to the extent disallowed, whichever is applicable. In
the event the Plan does not initially qualify under Section
401(a) of the Code, any contribution of an Employer made
hereunder may be returned to the Employer within one year of the
date of denial of the initial qualification of the Plan, but only
if an application for determination was made within the period of
time prescribed under Section 403(c)(2)(B) of ERISA.
21.12 Validity of Plan
The validity of the Plan shall be determined and the Plan shall
be construed and interpreted in accordance with the laws of the
State or Commonwealth in which the Sponsor has its principal
place of business, except as preempted by applicable Federal law.
The invalidity or illegality of any provision of the Plan shall
not affect the legality or validity of any other part thereof.
21.13 Trust Agreement
The Trust Agreement and the Trust maintained thereunder shall be
deemed to be a part of the Plan as if fully set forth herein and
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the provisions of the Trust Agreement are hereby incorporated by
reference into the Plan.
21.14 Parties Bound
The Plan shall be binding upon the Employers, all Participants
and Beneficiaries hereunder, and, as the case may be, the heirs,
executors, administrators, successors, and assigns of each of
them.
21.15 Application of Certain Plan Provisions
A Participant's Beneficiary, if the Participant has died, or
alternate payee under a qualified domestic relations order shall
be treated as a Participant for purposes of directing investments
as provided in Article X. For purposes of the general
administrative provisions and limitations of the Plan, a
Participant's Beneficiary or alternate payee under a qualified
domestic relations order shall be treated as any other person
entitled to receive benefits under the Plan. Upon any
termination of the Plan, any such Beneficiary or alternate payee
under a qualified domestic relations order who has an interest
under the Plan at the time of such termination, which does not
cease by reason thereof, shall be deemed to be a Participant for
all purposes of the Plan.
21.16 Leased Employees
Any leased employee, other than an excludable leased employee,
shall be treated as an employee of the Employer for which he
performs services for all purposes of the Plan with respect to
the provisions of Sections 401(a)(3), (4), (7), and (16), and
408(k), 410, 411, 415, and 416 of the Code; provided, however,
that no leased employee shall accrue a benefit hereunder based on
service as a leased employee except as otherwise specifically
provided in the Plan. A "leased employee" means any person who
performs services for an Employer or a Related Company (the
"recipient") (other than an employee of the recipient) pursuant
to an agreement between the recipient and any other person (the
"leasing organization") on a substantially full-time basis for a
period of at least one year, provided that such services are of a
type historically performed, in the business field of the
recipient, by employees. An "excludable leased employee" means
any leased employee of the recipient who is covered by a money
purchase pension plan maintained by the leasing organization
which provides for (i) a nonintegrated employer contribution on
behalf of each participant in the plan equal to at least ten
percent of compensation, (ii) full and immediate vesting, and
(iii) immediate participation by employees of the leasing
organization (other than employees who perform substantially all
of their services for the leasing organization or whose
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compensation from the leasing organization in each plan year
during the four-year period ending with the plan year is less
than $1,000); provided, however, that leased employees do not
constitute more than 20 percent of the recipient's nonhighly
compensated work force. For purposes of this Section,
contributions or benefits provided to a leased employee by the
leasing organization that are attributable to services performed
for the recipient shall be treated as provided by the recipient.
21.17 Transferred Funds
If funds from another qualified plan are transferred or merged
into the Plan, such funds shall be held and administered in
accordance with any restrictions applicable to them under such
other plan to the extent required by law and shall be accounted
for separately to the extent necessary to accomplish the
foregoing.
21.18 Transition Period
Notwithstanding any other provision of the Plan to the contrary,
whenever the Sponsor deems necessary or appropriate for the
proper operation of the Plan, a Participant will not be permitted
to make withdrawals, loans, exchanges, or redirect future
contributions with respect to some or all of the Investment Funds
provided for under the Plan.
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ARTICLE XXII
TOP-HEAVY PROVISIONS
22.1 Definitions
For purposes of this Article, the following terms shall have the
following meanings:
(a) The "compensation" of an employee means compensation as
defined in Section 415 of the Code and regulations issued
thereunder. In no event, however, shall the compensation
of a Participant taken into account under the Plan for any
Plan Year exceed (1) $200,000 for Plan Years beginning
prior to January 1, 1994, or (2) $150,000 for Plan Years
beginning on or after January 1, 1994 (subject to
adjustment annually as provided in Section 401(a)(17)(B)
and Section 415(d) of the Code; provided, however, that
the dollar increase in effect on January 1 of any calendar
year, if any, is effective for Plan Years beginning in
such calendar year). If the compensation of a Participant
is determined over a period of time that contains fewer
than 12 calendar months, then the annual compensation
limitation described above shall be adjusted with respect
to that Participant by multiplying the annual compensation
limitation in effect for the Plan Year by a fraction the
numerator of which is the number of full months in the
period and the denominator of which is 12; provided,
however, that no proration is required for a Participant
who is covered under the Plan for less than one full Plan
Year if the formula for allocations is based on
Compensation for a period of at least 12 months. In
determining the compensation, for purposes of applying the
annual compensation limitation described above, of a
Participant who is a five-percent owner or one of the ten
Highly Compensated Employees receiving the greatest
compensation for the Plan Year, the compensation of the
Participant's spouse and of his lineal descendants who
have not attained age 19 as of the close of the Plan Year
shall be included as compensation of the Participant for
the Plan Year. If as a result of applying the family
aggregation rule described in the preceding sentence the
annual compensation limitation would be exceeded, the
limitation shall be prorated among the affected family
members in proportion to each member's compensation as
determined prior to application of the family aggregation
rules.
(b) The "determination date" with respect to any Plan Year
means the last day of the preceding Plan Year, except that
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the determination date with respect to the first Plan Year
of the Plan shall mean the last day of such Plan Year.
(c) A "key employee" means any Employee or former Employee who
is a key employee pursuant to the provisions of
Section 416(i)(1) of the Code and any Beneficiary of such
Employee or former Employee.
(d) A "non-key employee" means any Employee who is not a key
employee.
(e) A "permissive aggregation group" means those plans
included in each Employer's required aggregation group
together with any other plan or plans of the Employer, so
long as the entire group of plans would continue to meet
the requirements of Sections 401(a)(4) and 410 of the
Code.
(f) A "required aggregation group" means the group of
tax-qualified plans maintained by an Employer or a Related
Company consisting of each plan in which a key employee
participates and each other plan that enables a plan in
which a key employee participates to meet the requirements
of Section 401(a)(4) or Section 410 of the Code, including
any plan that terminated within the five-year period
ending on the relevant determination date.
(g) A "super top-heavy group" with respect to a particular
Plan Year means a required or permissive aggregation group
that, as of the determination date, would qualify as a
top-heavy group under the definition in paragraph (i) of
this Section with "90 percent" substituted for "60
percent" each place where "60 percent" appears in the
definition.
(h) A "super top-heavy plan" with respect to a particular Plan
Year means a plan that, as of the determination date,
would qualify as a top-heavy plan under the definition in
paragraph (j) of this Section with "90 percent"
substituted for "60 percent" each place where "60 percent"
appears in the definition. A plan is also a "super top-
heavy plan" if it is part of a super top-heavy group.
(i) A "top-heavy group" with respect to a particular Plan Year
means a required or permissive aggregation group if the
sum, as of the determination date, of the present value of
the cumulative accrued benefits for key employees under
all defined benefit plans included in such group and the
aggregate of the account balances of key employees under
all defined contribution plans included in such group
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exceeds 60 percent of a similar sum determined for all
employees covered by the plans included in such group.
(j) A "top-heavy plan" with respect to a particular Plan Year
means (i), in the case of a defined contribution plan
(including any simplified employee pension plan), a plan
for which, as of the determination date, the aggregate of
the accounts (within the meaning of Section 416(g) of the
Code and the regulations and rulings thereunder) of key
employees exceeds 60 percent of the aggregate of the
accounts of all participants under the plan, with the
accounts valued as of the relevant valuation date and
increased for any distribution of an account balance made
in the five-year period ending on the determination date,
(ii), in the case of a defined benefit plan, a plan for
which, as of the determination date, the present value of
the cumulative accrued benefits payable under the plan
(within the meaning of Section 416(g) of the Code and the
regulations and rulings thereunder) to key employees
exceeds 60 percent of the present value of the cumulative
accrued benefits under the plan for all employees, with
the present value of accrued benefits to be determined
under the accrual method uniformly used under all plans
maintained by an Employer or, if no such method exists,
under the slowest accrual method permitted under the
fractional accrual rate of Section 411(b)(1)(C) of the
Code and including the present value of any part of any
accrued benefits distributed in the five-year period
ending on the determination date, and (iii) any plan
(including any simplified employee pension plan) included
in a required aggregation group that is a top-heavy group.
For purposes of this paragraph, the accounts and accrued
benefits of any employee who has not performed services
for an Employer or a Related Company during the five-year
period ending on the determination date shall be
disregarded. For purposes of this paragraph, the present
value of cumulative accrued benefits under a defined
benefit plan for purposes of top-heavy determinations
shall be calculated using the actuarial assumptions
otherwise employed under such plan, except that the same
actuarial assumptions shall be used for all plans within a
required or permissive aggregation group. A Participant's
interest in the Plan attributable to any Rollover
Contributions, except Rollover Contributions made from a
plan maintained by an Employer or a Related Company, shall
not be considered in determining whether the Plan is top-
heavy. Notwithstanding the foregoing, if a plan is
included in a required or permissive aggregation group
that is not a top-heavy group, such plan shall not be a
top-heavy plan.
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(k) The "valuation date" with respect to any determination
date means the most recent Valuation Date occurring within
the 12-month period ending on the determination date.
22.2 Applicability
Notwithstanding any other provision of the Plan to the contrary,
the provisions of this Article shall be applicable during any
Plan Year in which the Plan is determined to be a top-heavy plan
as hereinafter defined. If the Plan is determined to be a top-
heavy plan and upon a subsequent determination date is determined
no longer to be a top-heavy plan, the vesting provisions of
Article VI shall again become applicable as of such subsequent
determination date; provided, however, that if the prior vesting
provisions do again become applicable, any Employee with three or
more years of Vesting Service may elect in accordance with the
provisions of Article VI, to continue to have his vested interest
in his Employer Contributions Sub-Account determined in
accordance with the vesting schedule specified in Section 22.5.
22.3 Minimum Employer Contribution
If the Plan is determined to be a top-heavy plan, the Employer
Contributions and forfeitures allocated to the Separate Account
of each non-key employee who is an Eligible Employee and who is
employed by an Employer or a Related Company on the last day of
such top-heavy Plan Year shall be no less than the lesser of
(i) three percent of his compensation or (ii) the largest
percentage of compensation that is allocated as an Employer
Contribution and/or Tax-Deferred Contribution for such Plan Year
to the Separate Account of any key employee; except that, in the
event the Plan is part of a required aggregation group, and the
Plan enables a defined benefit plan included in such group to
meet the requirements of Section 401(a)(4) or 410 of the Code,
the minimum allocation of Employer Contributions and forfeitures
to each such non-key employee shall be three percent of the
compensation of such non-key employee. Any minimum allocation to
a non-key employee required by this Section shall be made without
regard to any social security contribution made on behalf of the
non-key employee, his number of hours of service, his level of
compensation, or whether he declined to make elective or
mandatory contributions. Notwithstanding the minimum top-heavy
allocation requirements of this Section, if the Plan is a top-
heavy plan, each non-key employee who is an Eligible Employee and
who is employed by an Employer or a Related Company on the last
day of a top-heavy Plan Year and who is also covered under any
other top-heavy plan or plans of an Employer may receive the top-
heavy benefits provided under such other plan in lieu of the
minimum top-heavy allocation under the Plan, or may receive an
allocation of forfeitures and Employer Contributions under the
Plan equal to five percent of his compensation.
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22.4 Adjustments to Section 415 Limitations
If the Plan is determined to be a top-heavy plan and an Employer
maintains a defined benefit plan covering some or all of the
Employees that are covered by the Plan, the defined benefit plan
fraction and the defined contribution plan fraction, described in
Article VII, shall be determined as provided in Section 415 of
the Code by substituting "1.0" for "1.25" each place where "1.25"
appears, except that such substitutions shall not be applied to
the Plan if (i) the Plan is not a super top-heavy plan, (ii) the
Employer Contribution for such top-heavy Plan Year for each non-
key employee who is to receive a minimum top-heavy benefit
hereunder is not less than four percent of such non-key
employee's compensation, and (iii) the minimum annual retirement
benefit accrued by a non-key employee who participates under one
or more defined benefit plans of an Employer or a Related Company
for such top-heavy Plan Year is not less than the lesser of three
percent times years of service with an Employer or a Related
Company or thirty percent.
22.5 Accelerated Vesting
If the Plan is determined to be a top-heavy plan, a Participant's
vested interest in his Employer Contributions Sub-Account shall
be determined no less rapidly than in accordance with the
following vesting schedule:
Years of Vesting Service Vested Interest
less than 2 0%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 or more 100%
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ARTICLE XXIII
EFFECTIVE DATE
23.1 Effective Date
The Plan is effective as of July 1, 1996.
* * *
EXECUTED AT ______________________________________,
________________________, this _________ day of ________________,
19__.
GREENPOINT BANK
By:_______________________________
Title:
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ARTICLE XXIII
EFFECTIVE DATE
23.1 Effective Date
The Plan is effective as of July 1, 1996.
* * *
EXECUTED AT ______________________________________,
________________________, this _________ day of ________________,
19__.
GREENPOINT BANK
By:_______________________________
Title:
91
00995003.AD5
<PAGE>
41-60 Main Street
PO Box 522652
Flushing, NY 11352-0652
Tel. 718.670.7669
Fax 718.670.4370
Howard C. Bluver
Senior Vice President
and General Counsel
GreenPoint (LOGO) Financial
June 24, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
GreenPoint Financial Corp.
GreenPoint Bank 401(k) Savings Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
I am a Senior Vice President and the General Counsel and
Secretary of GreenPoint Financial Corp., a Delaware Corporation
(the "Corporation"), and am rendering this opinion in connection
with the registration under the Securities Act of 1933, as
amended, of 1,000,000 shares (the "Shares") of Common Stock, par
value $.01 per share, of the Corporation together with an at
present indeterminate amount of interests (the "Interests") in
the GreenPoint Bank 401(k) Savings Plan (the "Plan"), which
Shares and Interests may be acquired with contributions under the
Plan.
For purposes of this opinion, I, or attorneys under my
supervision, have participated in the preparation of the
registration statement on Form S-8 covering the above-referenced
Shares and Interests (the "Registration Statement") and have
examined applicable statutes, rules and regulations, originals or
copies of the Certificate of Incorporation, and any amendments
<PAGE>
thereto, of the Corporation, the Bylaws of the Corporation, the
Plan and such other documents, records and other materials as I
have deemed relevant and necessary as a basis for this opinion.
For purposes of this opinion, I have assumed the genuineness of
all signatures on all documents, the authenticity of all
documents submitted to me as original documents, and the
completeness, and the conformity to original documents, of all
documents submitted to me as copies thereof, and that all the
representations of fact (other than those opined on below)
expressed in or implied by such documents are accurate.
On the basis of the foregoing, I am of the opinion that
the Interests when issued pursuant to the terms of the Plan will
be legally issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the
Registration Statement and to the use of my name under the
heading "Interests of Named Experts and Counsel" in the
Registration Statement.
Very truly yours,
/s/Howard C. Bluver
Howard C. Bluver
2
00995003.AD3
<PAGE>
KPMG Peat Markwick LLP
One Jericho Plaza Telphone 516 822 9100 Telefax 516 822 4575
Jericho, NY 11753
Independent Auditors' Consent
The Shareholders and the Board of Directors of
GreenPoint Financial Corp.
We consent to incorporation by reference in the registration
statement on Form S-8 of GreenPoint Financial Corp. (relating to
the GreenPoint Bank 401 (k) Savings Plan) of our report dated
January 19, 1996, relating to the consolidated statements of
financial condition of GreenPoint Financial Corp. and
Subsidiaries as of December 31, 1995 and 1994 and the related
consolidated statements of income, changes in stockholders'
equity and cash flows for the years ended December 31, 1995 and
1994, the six months ended December 31, 1993, and the year ended
June 30, 1993, which report is incorporated by reference in the
December 31, 1995 annual report on Form 10-K of GreenPoint
Financial Corp. Our report included an explanatory paragraph
that described the adoption of new account principles as
discussed in the notes to those statements.
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Jericho, New York
June 21, 1996
LOGO Member Firm of
Klynveld Peat Marwick Goerdeler
00995003.AD6
