<PAGE> 1
As filed with the SEC on January 7, 1997
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
PLANTRONICS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
-----------------------
DELAWARE 77-0207692
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
337 ENCINAL STREET
SANTA CRUZ, CALIFORNIA 95060
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
-----------------------
PLANTRONICS, INC. ANNUAL PROFIT SHARING/INDIVIDUAL SAVINGS PLAN
(FULL TITLES OF THE PLANS)
-----------------------
ROBERT S. CECIL
CHAIRMAN OF THE BOARD, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
PLANTRONICS, INC.
337 ENCINAL STREET
SANTA CRUZ, CALIFORNIA 95060
408-426-6060
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------
Copies to:
Henry P. Massey, Jr., Esq.
Timothy J. Sparks, Esq.
David C. Drummond, Esq.
Stephen G. Driggers, Esq.
Eric John Finseth, Esq.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
415-493-9300
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share Price Fee
---------- ---------- ----- ----- ---
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value........ 350,000 $38.04 (1) $13,314,000 $4,034.55
Interests in the Plantronics, Inc.
Annual Profit Sharing/Individual
Savings Plan (2)
</TABLE>
(1) Estimated in accordance with Rule 457(h) promulgated under the Securities
Act of 1933, as amended, solely for the purpose of calculating the total
registration fee. The average of the high and low per share sale prices of the
Common Stock as reported on the New York Stock Exchange on December 31, 1996 was
$44.75. In this price range, the Plan's formula for determining the purchase
price of the stock yields a per share price to participating employees equal to
85% of $44.75, or $38.04.
(2) In addition, pursuant to Rule 416(c) promulgated under the Securities Act of
1933, as amended, this Registration Statement covers an indeterminate amount of
interests in the Plantronics, Inc. Annual Profit Sharing/Individual Savings
Plan. Pursuant to Rule 457(h)(2), no separate filing fee is required with
respect to such interests in the Plan.
2
<PAGE> 3
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
The following documents and information heretofore filed with the
Securities and Exchange Commission are hereby incorporated by reference into
this Registration Statement:
ITEM 3(a)
The Registrant's Annual Report on Form 10-K for the fiscal
year ended March 30, 1996, filed on June 27, 1996 pursuant to Section
13 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
ITEM 3(b)
The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 29, 1996, filed on August 14, 1996, as
amended by Amendment Number 1 to such Quarterly Report on Form 10-Q/A,
filed on August 28, 1996 pursuant to Section 13 of the Exchange Act.
The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended September 28, 1996, filed on November 11, 1996
pursuant to Section 13 of the Exchange Act.
ITEM 3(c)
The description of the Company's Common Stock as set forth in
the Company's Registration Statement on Form S-1, Registration Number
33-70744, filed on October 20, 1993, as amended by Amendment Number 1,
filed on November 30, 1993, Amendment Number 2, filed on December 27,
1993, and Amendment Number 3, filed on January 18, 1994.
Item 1 of the Registrant's Registration Statement on Form 8-A,
filed on December 20, 1993, as amended by Amendment No. 1 to such
Registration Statement on Form 8-A/A, filed on January 14, 1994
pursuant to Section 12 of the Exchange Act.
All documents subsequently filed by the Registrant or by the
Registrant's Annual Profit Sharing/Individual Savings Plan (the "Plan") pursuant
to Sections 13(a), 13(c), 14 and 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
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
3
<PAGE> 4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act"). Article Nine of the Registrant's Certificate of Incorporation and Article
V of the Registrant's By-laws provide for indemnification of its directors,
officers, employees and other agents to the maximum extent permitted by the
Delaware General Corporation Law. In addition, the Registrant has entered into
Indemnification Agreements with its officers and directors. Reference is also
made to certain Underwriting Agreements (Exhibits 1.1 and 1.2 to the Company's
Registration Statement No. 33-70744 on Form S-1), which provide for the
indemnification of officers, directors and controlling persons of the Registrant
against certain liabilities. A registration rights agreement entered into by the
Registrant and certain holders (the "Holders") of its Common Stock (including
certain of the Selling Stockholders), provides for cross-indemnification of the
Holders and the Registrant, its officers and directors for certain liabilities
arising under the Securities Act or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Document
------ --------------------------------------------------------------
<S> <C>
4.1 Plantronics, Inc. Annual Profit Sharing/Individual Savings
Plan.
4.2 Amendment Number One to the Plantronics, Inc. Annual Profit
Sharing/Individual Savings Plan.
4.3 Trust Agreement Establishing the Plantronics, Inc. Annual
Profit Sharing/Individual Savings Plan Trust.
24.1 Consent of Independent Accountants.
24.2 Consent of Counsel.
25.1 Power of Attorney.
</TABLE>
ITEM 9.UNDERTAKINGS
A. The undersigned Registrant and 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 to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(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.
(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.
4
<PAGE> 5
B. The undersigned Registrant and Plan hereby undertake 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 the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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.
D. Pursuant to Item 8(b) of Form S-8, the Registrant undertakes that it will
submit or has submitted the Plan and any amendment thereto to the Internal
Revenue Service ("IRS") in a timely manner and has made or will make all changes
required by the IRS in order to qualify the Plan under Section 401 of the
Internal Revenue Code of 1986, as amended.
5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant,
Plantronics, Inc., a corporation organized and existing under the laws of the
State of Delaware, certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Santa Cruz, State of California, on January 7,
1997.
PLANTRONICS, INC.
By: /s/ Robert S. Cecil
-------------------------------
Robert S. Cecil, President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert S. Cecil and John A. Knutson,
jointly and severally, his or her attorneys-in-fact, each with the power of
substitution, for him or her in any and all capacities, to sign any amendments
to this Registration Statement on Form S-8, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert S. Cecil Chairman of the Board, Chief January 7, 1997
- ----------------------------- Executive Officer, and President
(Robert S. Cecil) (Principal Executive Officer)
/s/ Daniel A. Gaudreau Vice President -- Finance and January 7, 1997
- ------------------------------ Administration, and Chief Financial
(Daniel A. Gaudreau) Officer (Principal Financial
Officer, Principal Accounting
Officer)
/s/ Richard D. Banziger Director January 7, 1997
- ---------------------------
(Richard D. Banziger)
/s/ M. Saleem Muqaddam Director January 7, 1997
- ----------------------
(M. Saleem Muqaddam)
/s/ John Mowbray O'Mara Director January 7, 1997
- -----------------------
(John Mowbray O'Mara)
</TABLE>
<PAGE> 7
<TABLE>
<S> <C> <C>
/s/ Trude C. Taylor Director January 7, 1997
- ----------------------------
(Trude C. Taylor)
/s/ J. Sidney Webb Director January 7, 1997
- ----------------------------
(J. Sidney Webb)
/s/ David A. Wegmann Director January 7, 1997
- -------------------------
(David A. Wegmann)
</TABLE>
<PAGE> 8
Pursuant to the requirements of the Securities Act, the Plan Committee
appointed by the Administrator of the Plantronics, Inc. Annual Profit
Sharing/Individual Savings Plan to administer the Plan, has caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Santa Cruz, State of California, on January 7,
1997.
PLANTRONICS, INC. ANNUAL PROFIT SHARING/
INDIVIDUAL SAVINGS PLAN
By: /s/ John A. Knutson
---------------------------------
John A. Knutson,
member of the Plan Committee
<PAGE> 9
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Document
------ --------
<S> <C>
4.1 Plantronics, Inc. Annual Profit Sharing/Individual Savings
Plan.
4.2 Amendment Number One to the Plantronics, Inc. Annual Profit
Sharing/Individual Savings Plan.
4.3 Trust Agreement Establishing the Plantronics, Inc. Annual
Profit Sharing/Individual Savings Plan Trust.
24.1 Consent of Independent Accountants.
24.2 Consent of Counsel.
25.1 Power of Attorney (see page 6).
</TABLE>
<PAGE> 1
Exhibit 4.1
PLANTRONICS, INC.
ANNUAL PROFIT SHARING/INDIVIDUAL
SAVINGS PLAN
RESTATEMENT EFFECTIVE JULY 2, 1989
WILSON, SONSINI, GOODRICH & ROSATI
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(415) 493-9300
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
I INTRODUCTION............................................................................................... 1
II DEFINITIONS................................................................................................ 2
2.1 Account or Accounts............................................................................... 2
2.2 Act............................................................................................... 2
2.3 Adjustment Factor................................................................................. 2
2.4 Administrator or Plan Administrator............................................................... 2
2.5 Beneficiary....................................................................................... 2
2.6 Break in Service.................................................................................. 2
2.7 Code.............................................................................................. 2
2.8 Company........................................................................................... 2
2.9 Compensation...................................................................................... 3
2.10 Contribution Percentage Amounts................................................................... 4
2.11 Contributions..................................................................................... 4
2.12 Controlled Group.................................................................................. 4
2.13 Days of Service................................................................................... 4
2.14 Disability........................................................................................ 4
2.15 Early Retirement Date............................................................................. 4
2.16 Effective Date.................................................................................... 4
2.17 Eligible Employee................................................................................. 5
2.18 Employee.......................................................................................... 5
2.19 Employer.......................................................................................... 5
2.20 Employer Profit Sharing Contributions............................................................. 6
2.21 Employer Matching Contributions................................................................... 6
2.22 Employment Commencement Date...................................................................... 6
2.23 Entry Dates....................................................................................... 6
2.24 ERISA............................................................................................. 6
2.25 Family Member..................................................................................... 6
2.26 Fiscal Year....................................................................................... 6
2.27 Highly Compensated Employee....................................................................... 6
2.28 Hour of Service................................................................................... 7
2.29 Non-Highly Compensated Employee................................................................... 7
2.30 Normal Retirement Date............................................................................ 7
2.31 Open Enrollment Date(s)........................................................................... 7
2.32 Participant....................................................................................... 7
2.33 Participating Employer............................................................................ 7
2.34 Period of Service................................................................................. 7
2.35 Plan.............................................................................................. 8
2.36 Plan Year......................................................................................... 8
2.37 Qualified Matching Contributions.................................................................. 8
2.38 Qualified Nonelective Contributions............................................................... 8
2.39 Reemployment Commencement Date.................................................................... 8
2.40 Retirement........................................................................................ 8
2.41 Rollover Contribution............................................................................. 8
2.42 Salary Reduction Contributions.................................................................... 9
2.43 Section 415 Compensation.......................................................................... 9
</TABLE>
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<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C>
2.44 Severance from Service or Severance from Service Date............................................. 9
2.45 Spouse or Surviving Spouse........................................................................ 9
2.46 Trust............................................................................................. 9
2.47 Trustee........................................................................................... 9
2.48 Trust Fund........................................................................................ 9
2.49 Valuation Date.................................................................................... 10
2.50 Year of Service................................................................................... 10
2.51 Other Definitions................................................................................. 10
III ELIGIBILITY................................................................................................ 12
3.1 Participation..................................................................................... 12
3.2 Reemployment...................................................................................... 12
3.3 Change in Employment Status....................................................................... 12
3.4 Election Not to Participate....................................................................... 12
IV CONTRIBUTIONS.............................................................................................. 13
4.1 Salary Reduction Contributions.................................................................... 13
4.2 Employer Matching Contributions................................................................... 13
4.3 Employer Profit Sharing Contributions............................................................. 13
4.4 Qualified Nonelective Contributions............................................................... 16
4.5 Limitations on Contributions...................................................................... 16
4.6 Time and Manner of Payment of Contributions....................................................... 16
4.7 Receipt of Assets from Plan of Former Employer.................................................... 16
V ACCOUNTS AND ALLOCATIONS................................................................................... 18
5.1 Participant's Accounts............................................................................ 18
5.2 Allocation of Contributions....................................................................... 18
5.3 Allocation of Earnings or Losses.................................................................. 18
5.4 Section 415 Limitations........................................................................... 18
5.5 Discrimination Testing of Salary Reduction Contributions.......................................... 22
5.6 Distribution of Excess Salary Deferral Contributions.............................................. 27
5.7 Discrimination Testing of Employer Matching Contributions......................................... 27
5.8 Corrective Procedure when Discriminatory Matching Contributions are Made.......................... 29
VI VESTING AND DISTRIBUTION OF ACCOUNTS....................................................................... 32
6.1 Vested Interest................................................................................... 32
6.2 Employer Profit Sharing Contributions Forfeitures................................................. 33
6.3 Normal or Early Retirement........................................................................ 34
6.4 Death Benefits.................................................................................... 34
6.5 Termination of Employment......................................................................... 34
6.6 Commencement of Distribution...................................................................... 34
6.7 Direct Rollovers and Withholding.................................................................. 35
6.8 Form of Benefit................................................................................... 36
6.9 Minimum Distribution Requirements................................................................. 37
6.10 Distribution or Transfer of Accounts On Plan Termination and Other Events......................... 41
6.11 Distribution to Minor or Incompetent.............................................................. 42
6.12 Location of Participant or Beneficiary Unknown.................................................... 42
</TABLE>
-ii-
<PAGE> 4
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C>
6.13 Hardship Distribution............................................................................. 42
6.14 Loans............................................................................................. 43
6.15 Withdrawals at Age 59 1/2:........................................................................ 44
VII TRANSFER OF QUARTERLY PLAN ACCOUNTS........................................................................ 45
7.1 Applicability..................................................................................... 45
7.2 Investment........................................................................................ 45
7.3 Vesting........................................................................................... 45
7.4 Withdrawals....................................................................................... 45
7.5 Distribution...................................................................................... 45
VIII SALE OF THE ASSETS OF PLANTRONICS FUTURECOMMS, INC. AND FREDERICK ELECTRONICS
CORPORATION................................................................................................ 46
8.1 Controlling Provisions............................................................................ 46
8.2 Cessation of Qualified Participant Status......................................................... 46
8.3 Vesting and Forfeiture............................................................................ 46
8.4 Transfer of Accounts.............................................................................. 46
IX ADMINISTRATION............................................................................................. 47
9.1 Powers of the Administrator....................................................................... 47
9.2 Domestic Relations Orders......................................................................... 48
X LEAVES OF ABSENCE AND TRANSFERS............................................................................ 49
10.1 Military Leave of Absence......................................................................... 49
10.2 Other Leaves of Absence........................................................................... 49
10.3 Transfers......................................................................................... 49
XI TRUST PROVISIONS........................................................................................... 50
XII FEES AND EXPENSES.......................................................................................... 51
12.1 Expenses Paid by Participating Employers:......................................................... 51
12.2 Additional Expenses:.............................................................................. 51
XIII NECESSITY OF QUALIFICATION................................................................................. 52
XIV AMENDMENT, TERMINATION OR MERGER........................................................................... 53
14.1 Amendment or Termination.......................................................................... 53
14.2 Termination of Plan............................................................................... 53
14.3 Merger............................................................................................ 53
XV ADOPTION OF PLAN BY RELATED ENTITIES....................................................................... 54
15.1 Adoption of the Plan.............................................................................. 54
15.2 Withdrawal........................................................................................ 54
</TABLE>
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<PAGE> 5
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C>
XVI CLAIMS PROCEDURE........................................................................................... 55
16.1 Right to File Claim............................................................................... 55
16.2 Denial of Claim................................................................................... 55
16.3 Claims Review Procedure........................................................................... 55
XVII TOP-HEAVY PROVISIONS....................................................................................... 56
17.1 Purpose........................................................................................... 56
17.2 Definitions....................................................................................... 56
17.3 Minimum Allocation................................................................................ 57
XVIII MISCELLANEOUS.............................................................................................. 59
18.1 Legal or Equitable Action......................................................................... 59
18.2 Indemnification................................................................................... 59
18.3 No Enlargement of Plan Rights..................................................................... 59
18.4 No Enlargement of Employment Rights............................................................... 59
18.5 Written Orders.................................................................................... 59
18.6 No Release from Liability......................................................................... 59
18.7 Discretionary Actions............................................................................. 59
18.8 Headings.......................................................................................... 59
18.9 Applicable Law.................................................................................... 59
18.10 Non-Alienation of Benefits........................................................................ 59
18.11 No Reversion...................................................................................... 60
18.12 Notices........................................................................................... 60
18.13 Conflict.......................................................................................... 60
</TABLE>
-iv-
<PAGE> 6
I INTRODUCTION
The Plantronics, Inc. Annual Profit Sharing/Individual Savings Plan was
originally adopted June 1, 1968. The Plan was restated effective June 3, 1984
and restated again effective April 1, 1985. Plantronics, Inc. now deems it
appropriate to amend the Plan in its entirety by adopting this Restated Plan and
Trust Agreement. The Plantronics, Inc. Annual Profit Sharing/Individual Savings
Plan (the "Plan") is intended to be a qualified plan under Section 401(a) of the
Internal Revenue Code (the "Code") and is intended to include a qualified cash
or deferred arrangement under Section 401(k) of the Code.
-1-
<PAGE> 7
II DEFINITIONS
For purposes of this Plan, the following definitions shall apply:
2.1 ACCOUNT OR ACCOUNTS: A Participant's interest in the Trust Fund,
consisting of the Participant's Salary Reduction Contributions Account, Employer
Matching Contributions Account, Qualified Matching Contributions Account,
Employer Profit Sharing Contributions Account, Qualified Nonelective
Contributions Account, Rollover Contributions Account, and such other Account(s)
as the Administrator shall determine.
2.2 ACT: The Employee Retirement Income Security Act of 1974, as
amended.
2.3 ADJUSTMENT FACTOR: The cost of living adjustment factor prescribed
by the Secretary of the Treasury under Section 415(d) of the Code as applied to
such items and in such manner as the Secretary shall provide.
2.4 ADMINISTRATOR OR PLAN ADMINISTRATOR: The Employer.
2.5 BENEFICIARY: The person or entity who is to receive any benefits
payable from the Plan on account of a Participant's death. If the Participant is
married, the Beneficiary is the Participant's surviving spouse and no written
designation is required. A Participant may designate a Beneficiary other than
the Participant's spouse provided (i) the Participant's spouse consents in
writing (on a form provided by the Administrator) to such designation and to the
form thereof; (ii) such Beneficiary designation may not be changed without
spousal consent (or the consent of the spouse expressly permits designations by
the Participant without any requirement of further consent by the spouse); and
(iii) the spouse's consent acknowledges the effect of such Beneficiary
designation and is witnessed by a Plan representative or a notary public. Such
spousal consent shall not be required if it is established to the satisfaction
of the Administrator that the consent required under the preceding sentence
cannot be obtained because there is no spouse, because the spouse cannot be
located, or because of such other circumstances as the Secretary of the Treasury
or the Secretary's delegate may by regulations prescribe. If at the time of his
or her death, the Participant has no surviving spouse or designated Beneficiary,
the Beneficiary is the personal representative of the Participant's estate. A
Participant's Beneficiary is bound by the terms of the Plan.
2.6 BREAK IN SERVICE:
(a) A period of time commencing with an Employee's Severance
from Service Date of at least twelve (12) consecutive months during which the
Employee is not credited with any Service under Section 2.34. If an Employee is
absent on account of maternity or paternity leave (as described below), or on
account of an authorized leave of absence as described in Sections 10.1 and
10.2, the Employee will not be considered to have incurred a one year Break in
Service for the first twelve consecutive month period in which he or she would
otherwise have had a one year Break in Service.
(b) For purposes of paragraph (a) above, maternity or
paternity leave means a period during which an Employee is absent because of (i)
the pregnancy of the Employee, (ii) the birth of a child of the Employee, (iii)
the placement of a child with the Employee in connection with the Employee's
adoption of the child, or (iv) the Employee's caring for a child immediately
after the birth or placement of the child.
2.7 CODE: The Internal Revenue Code of 1986, as amended.
2.8 COMPANY: Plantronics, Inc.
2.9 COMPENSATION:
(a) For purposes of determining Salary Reduction Contributions
and Employer Matching Contributions, Compensation means all of an Employee's W-2
Compensation paid by a Participating Employer to an Employee for services
performed during the Plan Year. "W-2 Compensation" means wages as defined in
Section 3401(a)
-2-
<PAGE> 8
of the Code for the purposes of income tax withholding at the source but
determined without regard to any rules that limit the remuneration included in
wages based on the nature or location of the employment or the services
performed (such as the exception for agricultural labor in Section 3401(a)(2) of
the Code).
(b) For purposes of allocating Employer Profit Sharing
Contributions and forfeitures, Compensation shall be determined on the basis of
the Employer's Fiscal Year and shall mean all current and direct base
compensation paid or payable in cash by a Participating Employer to an Employee
for services performed during the portion of the Plan Year that the Employee is
a Participant in the Plan, and shall not include overtime, bonuses, sales
commissions and other cash incentive payments subject to federal income tax
withholding.
(c) Compensation shall include any amount which is contributed
by the Employer pursuant to a salary reduction agreement and which is not
includable in the gross income of the Employee under Sections 125, 402(e)(3),
402(h) or 403(b) of the Code.
(d) For Plan Years beginning after December 31, 1988, the
annual Compensation of each Employee taken into account for determining all
benefits provided under the Plan for any determination period shall not exceed
$200,000 (as adjusted by the Adjustment Factor). If Compensation is to be
determined on a period of time that contains fewer than 12 calendar months, the
annual Compensation limit is an amount equal to the annual Compensation limit
for the calendar year in which the Compensation period begins, multiplied by the
ratio obtained by dividing the number of full months in the period by 12. If
Compensation for any prior determination period is taken into account in
determining a Participant's allocations or benefits for the current
determination period, the Compensation for such prior year is subject to the
applicable annual Compensation limit in effect for that prior year. For this
purpose, for years beginning before January 1, 1990, the applicable annual
Compensation limit is $200,000.
(e) For plan years beginning on or after January 1, 1994, the
annual compensation of each employee taken into account under the plan shall not
exceed the annual compensation limit under the Omnibus Budget Reconciliation Act
of 1993 ("OBRA '93"). The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with section 401(a)(17)(B) of the Internal Revenue Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not exceeding 12
months, over which compensation is determined ("determination period") beginning
in such calendar year. If a determination period consists of fewer than 12
months, the OBRA '93 annual compensation limit will be multiplied by a fraction,
the numerator of which is in the number of months in the determination period,
and the denominator of which is 12. For plan years beginning on or after January
1, 1994, any reference in this plan to the limitation under section 401(a)(17)
of the Code shall mean the OBRA '93 annual compensation limit set forth in this
provision. If compensation for any prior determination period is taken into
account in determining an employee's benefits accruing in the current plan year,
the compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first plan year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
(f) In determining the Compensation of a Participant for
purposes of the foregoing dollar limitations, the rules of Section 414(q)(6) of
the Code shall apply, except in applying such rules, the term "family" shall
include only the spouse of the Participant and any lineal descendants of the
Participant who have not attained age 19 before the close of the year. If, as a
result of the application of such rules the adjusted dollar limitation is
exceeded, then the limitation shall be prorated among the affected individuals
in proportion to each such individual's Compensation as determined under this
section prior to the application of this limitation.
(g) For limitation years beginning after December 31, 1991,
for purposes of applying the limitations of this Section , Compensation for a
limitation year is the Compensation actually paid or made available during such
limitation year.
2.10 CONTRIBUTION PERCENTAGE AMOUNTS: The sum of Employer Matching
Contributions and Qualified Matching Contributions (to the extent not taken into
account for purposes of the test in Section 5.5(a) of the Plan) made
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<PAGE> 9
under the Plan on behalf of the Participant for the Plan Year. Such Contribution
Percentage Amounts shall not include Employer Matching Contributions that are
forfeited either to correct Excess Matching Contributions or because the
Contributions to which they relate are Excess Salary Reduction Contributions,
Excess 401(k) Contributions or Excess Matching Contributions. The Employer may
include Qualified Nonelective Contributions in the Contribution Percentage
Amounts. The Employer may also elect to use Salary Reduction Contributions in
the Contribution Percentage Amounts so long as the test in Section 5.5(a) of the
Plan is met before the Salary Reduction Contributions are used in the test in
Section 5.7(a) of the Plan and continues to be met following the exclusion of
those Salary Reduction Contributions that are used to meet the test in Section
5.7(a) of the Plan.
2.11 CONTRIBUTIONS: Salary Reduction Contributions, Employer Matching
Contributions, Qualified Matching Contributions, Employer Profit Sharing
Contributions, and Qualified Nonelective Contributions.
2.12 CONTROLLED GROUP: The Employer and any entity required to be
aggregated with the Employer under Sections 414(b), (c) or (m) of the Code.
2.13 DAYS OF SERVICE: The total number of days in an Employee's service
periods, whether or not such periods were completed consecutively. Days of
Service shall also include the number of days in all severance periods, if any,
in which:
(a) The Employee severs from service by reason of quit,
discharge or Retirement, if the Employee performs an Hour of Service within
twelve months of the date of such severance; provided that immediately prior to
such quit, discharge or Retirement, the Employee was not absent from service; or
(b) Notwithstanding (a) above, the Employee severs from
service by reason of quit, discharge or Retirement during an absence from
service of twelve months or less for any reason other than a quit, discharge,
Retirement or death and the Employee then performs an Hour of Service within
twelve months of the date on which the Employee was first absent from service.
A Participant shall accrue one Year of Service for each 365 Days of
Service (whether or not consecutive).
2.14 DISABILITY: The inability of the Participant, as determined by the
Administrator, to perform the customary duties of the Participant's employment
for an indefinite, continuous period of time that the Administrator determines
will be of long duration. The Administrator may require the participant to
submit to a physical examination to determine the degree and permanence of the
disability.
2.15 EARLY RETIREMENT DATE: The date on which an Employee terminates
employment on or after attaining age 55 and completing two (2) Years of Service.
2.16 EFFECTIVE DATE: The Effective Date of the Plan is June 1, 1968.
Except as otherwise provided herein, the Effective Date of this restatement is
July 2, 1989; provided, however, that any provision of this Plan required as a
result of the Tax Reform Act of 1986 or any subsequent legislation shall be
effective as of the earliest date required by such legislation.
2.17 ELIGIBLE EMPLOYEE: All Employees of a Participating Employer
except:
(a) Employees included in a unit of Employees covered by a
collective bargaining agreement between the Employer and Employee
representatives, if retirement benefits were the subject of good faith
bargaining and if two percent or less of the Employees who are covered pursuant
to that agreement are professionals as defined in Treasury Regulations Section
1.410(b)-9. For this purpose, the term "Employee representatives" does not
include any organization more than half of whose members are Employees who are
owners, officers or executives of the Employer;
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<PAGE> 10
(b) Employees who are nonresident aliens and who receives no
earned income (within the meaning of Section 911(b) of the Code) from a
Participating Employer which constitutes income from sources within the United
States (within the meaning of Section 861(a)(3) of the Code);
(c) Persons employed by a corporation or other business entity
which is not a Participating Employer but which is merged or liquidated into, or
whose assets are acquired by, a Participating Employer, unless the Board of
Directors of the Participating Employer designates the employees of such
corporation or other business entity, as the case may be, as
Eligible Employees under the Plan pursuant to written resolutions adopted by the
Board of Directors at any time prior to or after such liquidation, merger or
asset acquisition; or
(d) Leased Employees, as defined in Section 2.18.
2.18 EMPLOYEE: Any person employed by the Employer other than as an
independent contractor. The term Employee shall include any person (other than
an Employee of the Employer) who, pursuant to an agreement between the Employer
and any other person ("Leasing Organization"), has performed services for the
Employer (or for the Employer and related persons determined in accordance with
Section 414(n)(6) of the Code) on a substantially full-time basis for a period
of at least one year, and such services are of a type historically performed by
employees in the business field of the Employer ("Leased Employee"). A Leased
Employee shall not be considered an Employee of the Employer if both of the
following conditions are met:
(a) such employee is covered by a money purchase pension plan
providing:
(i) a non-integrated employer contribution rate of at
least 10% of compensation, as defined in Section 415(c)(3) of the Code, but
including amounts contributed pursuant to a salary reduction agreement which are
excludable from the employee's gross income under Section 125, Section
402(e)(3), Section 402(h) or Section 403(b) of the Code;
(ii) immediate participation; and
(iii) full and immediate vesting.
(b) Leased Employees do not constitute more than 20% of the
Employer's non-highly-compensated work force.
Contributions or benefits provided a Leased Employee by the Leasing Organization
which are attributable to services performed for the recipient employer shall be
treated as provided by the recipient employer.
2.19 EMPLOYER: The Company and any corporation which is a member of a
controlled group of corporations (as defined under Section 414(b) of the Code as
modified by Section 415(h) of the Code) which includes the Company; any trade or
business (whether or not incorporated) which is under common control (as defined
under Section 414(c) of the Code as modified by Section 415(h) of the Code) with
the Company; any organization (whether or not incorporated) which is a member of
an affiliated service group (as defined under Section 414(m) of the Code) which
includes the Company; and any other organization or entity which is required to
be aggregated with the Company; pursuant to Section 414(o) of the Code.
2.20 EMPLOYER PROFIT SHARING CONTRIBUTIONS: Employer contributions to
the Trust other than Employer Matching Contributions and other than Employer
contributions made pursuant to Participants' salary reduction elections.
2.21 EMPLOYER MATCHING CONTRIBUTIONS: Employer contributions to the
Trust made on account of Salary Reduction Contributions, but not including any
contribution and/or allocation made to satisfy the minimum allocation
requirements of Section 17.3.
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<PAGE> 11
2.22 EMPLOYMENT COMMENCEMENT DATE: The date on which an Employee first
performs an Hour of Service for the Employer, within the meaning of 29 CFR
Section 2530.200b-2(a).
2.23 ENTRY DATES: The first day of each fiscal quarter of the Company
during a Plan Year.
2.24 ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
2.25 FAMILY MEMBER: With respect to an Employee, any individual who is
a spouse, lineal ascendent or descendant, or a spouse of a lineal ascendant or
descendant of the Employee.
2.26 FISCAL YEAR: The fiscal year of Plantronics, Inc. For the Plan
Year beginning July 3, 1988, the Fiscal Year is the 39 week period ending April
1, 1989. Thereafter, the Fiscal Year is the 52/53 week period ending on the
Saturday closest to March 31 of each year.
2.27 HIGHLY COMPENSATED EMPLOYEE:
(a) Any Employee who at any time in the look-back year or the
determination year was a 5% owner of the Employer (as defined in Section
416(i)(1)(B)(i) of the Code);
(b) Any Employee who, in the look-back year:
(i) Received Compensation of more than $75,000 (as
adjusted by the Adjustment Factor);
(ii) Was an officer and received Compensation of more
than 50% of the dollar limit in effect for that Plan Year under Section
415(b)(1)(A) of the Code; or
(iii) Received Compensation of more than $50,000 (as
adjusted by the Adjustment Factor) and was in the top-paid group;
(c) Any Employee not described in paragraph (b) above but who,
in the determination year, (i) is described in clause (i), (ii) or (iii) of
paragraph (b), and (ii) is among the 100 Employees who received the most
Compensation from the Employer during the determination year; and
(d) Any former Employee who has separated from Service but who
was a Highly Compensated Employee as described in paragraph (a), (b) or (c)
above when he or she separated from Service or at any time after he or she
attained age 55.
(e) For purposes of this Section:
(i) the determination year is the Plan Year for which
the determination of Highly Compensated Employees is being made;
(ii) the look-back year is the twelve month period
preceding the determination year;
(iii) the determination of who is a Highly
Compensated Employee, including the determinations of the number and identity of
Employees in the top-paid group, the top 100 Employees, the number of Employees
treated as officers and the Compensation that is considered, will be made in
accordance with Section 414(q) of the Code and the regulations thereunder;
(iv) employers aggregated under Sections 414(b), (c),
(m) or (o) of the Code are treated as a single employer;
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<PAGE> 12
(v) if an employee is, during a determination year or
look-back year, a Family Member of either a 5% owner who is an active or former
Employee or a Highly Compensated Employee who is one of the ten most highly
compensated Employees ranked on the basis of Compensation paid by the Employer
during such year, then the Family Member and the 5% owner or top-ten Highly
Compensated Employee shall be aggregated. In such case, the Family Member and 5%
owner or top-ten Highly Compensated Employee shall be treated as a single
Employee receiving Compensation and Plan Contributions or benefits equal to the
sum of such Compensation and Contributions or benefits of the Family Member and
5% owner or top-ten Highly Compensated Employee;
(vi) Compensation shall be deemed to refer to Section
415 Compensation.
2.28 HOUR OF SERVICE: Each hour for which an Employee is directly or
indirectly paid, or entitled to payment, by the Employer for the performance of
duties and for reasons other than the performance of duties.
2.29 NON-HIGHLY COMPENSATED EMPLOYEE: An Employee who is neither a
Highly Compensated Employee nor a Family Member with respect to a Highly
Compensated Employee.
2.30 NORMAL RETIREMENT DATE: A Participant's 65th birthday.
2.31 OPEN ENROLLMENT DATE(S): Such date(s) as the Administrator shall
designate as times when Participants may elect to change the percentage of their
Salary Reduction Contributions, cease making or resume making Salary Reduction
Contributions, or make changes in the investment of their Accounts.
2.32 PARTICIPANT: An Employee or former Employee for whom an Account is
maintained under the Plan.
2.33 PARTICIPATING EMPLOYER: Plantronics, Inc. and any other
corporation that is considered an Employer under Section 2.19 and that is
authorized by the Board of Directors of Plantronics, Inc. to adopt the Plan
pursuant to Article XV. The Participating Employers as of January 1, 1995 are
listed in Schedule A attached to the Plan and made a part hereof.
2.34 PERIOD OF SERVICE: An Employee's period of employment with the
Employer, beginning with the Employee's Employment Commencement Date or
Reemployment Commencement Date, whichever is applicable, and ending with his or
her Severance from Service Date. An Employee's Period of Service shall be
determined without regard to whether he or she is a Participant or an eligible
Employee during his or her Period of Service with the Employer and shall also
include those periods which do not exceed 12 months during which the Employee is
on a leave of absence, is disabled, is laid off, is on sick leave, or is on
vacation or holiday. In addition, if an Employee ceases to be an Employee and
then resumes Employee status within 12 consecutive months immediately following
the date of such cessation, his or her Period of Service shall also include each
day during the period following the time he or she ceases to be an Employee and
ending with the day he or she again becomes an Employee. If an Employee is
absent from service for any reason other than quit, discharge, Retirement, or
death, and during the absence ceases to be an Employee, his or her Period of
Service shall also include the period between the Employee's Severance from
Service Date and the first anniversary of the date on which the Employee was
first absent, if he or she again becomes an Employee before such first
anniversary date. An Employee's Period of Service shall be expressed in years
and portions of years and shall be measured in cumulative daily increments
(including holidays, weekends, and other nonworking days) with 365 Days of
Service equaling a Year of Service irrespective of whether this Year of Service
was completed within a 12 consecutive month period. If the Employer is a member
of an affiliated service group (under Section 414(m) of the Code), a controlled
group of corporations (under Section 414(b) of the Code), a group of trades or
businesses under common control (under Section 414(c) of the Code) or any other
entity required to be aggregated with the Employer pursuant to Section 414(o) of
the Code), service will be credited for any employment for any period of time
for any other member of such group. Service will also be credited for any
individual required under Sections 414(n) or 414(o) of the Code to be considered
an employee of any employer aggregated under Sections 414(b), (c) or (m) of the
Code.
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<PAGE> 13
2.35 PLAN: The Plantronics, Inc. Annual Profit Sharing/Individual
Savings Plan and Trust Agreement, as amended.
2.36 PLAN YEAR: For the Plan Year beginning July 3, 1988, the 52/53
week period ending July 1, 1989; for the Plan Year beginning July 2, 1989, the
39 week period ending on the last day of the Fiscal Year of Plantronics, Inc.;
and for the Plan Year beginning April 1, 1990, and for each Plan Year
thereafter, the 52/53 week period ending on the Saturday closest to March 31 of
each year.
2.37 QUALIFIED MATCHING CONTRIBUTIONS: Employer Matching Contributions
under this Plan or any other plan of the Employer, as provided by regulations
under the Code, treated as Salary Reduction Contributions for purposes of the
tests of Section 5.5(a) of the Plan. The amount of Qualified Matching
Contributions made under this Plan and taken into account as Salary Reduction
Contributions for purposes of calculating the tests of Section 5.5(a) of the
Plan, subject to such other requirements as may be prescribed by the Secretary
of the Treasury, shall be such Qualified Matching Contributions as are needed to
meet the Actual Deferral Percentage test of Section 5.5(a) of the Plan.
2.38 QUALIFIED NONELECTIVE CONTRIBUTIONS: Employer Profit Sharing
Contributions under this Plan or any other plan of the Employer, as provided by
regulations under the Code, treated as Salary Reduction Contributions for
purposes of the test of Section 5.5(a) of the Plan, or as Matching Contributions
for purposes of the test of Section 5.7(a) of the Plan.
(a) The amount of Qualified Nonelective Contributions made
under this Plan and taken into account as Salary Reduction Contributions for
purposes of calculating the tests of Section 5.5(a) of the Plan, subject to such
other requirements as may be prescribed by the Secretary of the Treasury, shall
be such Qualified Nonelective Contributions as are needed to meet the Actual
Deferral Percentage test of Section 5.5(a) of the Plan.
(b) The amount of Qualified Nonelective Contributions made
under this Plan and taken into account as Contribution Percentage Amounts for
purposes of calculating the tests of Section 5.7(a), subject to such other
requirements as may be prescribed by the Secretary of the Treasury, shall be
such Qualified Nonelective Contributions as are needed to meet the Average
Actual Contribution Percentage test of Section 5.7(a) of the Plan.
Notwithstanding the foregoing, Qualified Nonelective Contributions used in
calculating the Actual Deferral Percentage test of Section 5.5(a) of the Plan
may not be used in calculating the Average Actual Contribution Percentage test
of Section 5.7(a) of the Plan.
2.39 REEMPLOYMENT COMMENCEMENT DATE: The first date, following a
Severance from Service, on which an Employee again performs an Hour of Service
for the Employer.
2.40 RETIREMENT: Termination of employment by an Employee following his
or her Normal Retirement Date or Early Retirement Date.
2.41 ROLLOVER CONTRIBUTION: A qualified Rollover Contribution as
described in Section 4.7 hereof.
2.42 SALARY REDUCTION CONTRIBUTIONS: Employer contributions to the
Trust on behalf of Participants who have elected to make such contributions as
described in Section 4.1 hereof. For purposes of the test under Section 5.7(a)
of the Plan, the Employer may take into account and include as Contribution
Percentage Amounts, Salary Reduction Contributions under this Plan or any other
plan of the Employer, as provided by regulations. The amount of Salary Reduction
Contributions made under the Plan and taken into account as Contribution
Percentage Amounts for purposes of calculating the Average Actual Contribution
Percentage, subject to such other requirements as may be prescribed by the
Secretary of the Treasury, shall be such Salary Reduction Contributions as are
needed to meet the Average Actual Contribution Percentage test of Section 5.7(a)
of the Plan; provided, however, that Salary Reduction Contributions used in
calculating the Actual Deferral Percentage test of Section 5.5(a) of the Plan
may not be used in calculating the Average Actual Contribution Percentage test
of Section 5.7(a) of the Plan.
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<PAGE> 14
2.43 SECTION 415 COMPENSATION: Wages, salaries, and fees for
professional services and other amounts received (without regard to whether or
not an amount is paid in cash) for personal services actually rendered in the
course of employment with the Employer maintaining the Plan to the extent that
the amounts are includable in gross income (including, but not limited to,
commissions paid salespersons, compensation for services on the basis of a
percentage of profits, commissions on insurance premiums, tips, bonuses, fringe
benefits, reimbursements, and reimbursements or other expense allowances under a
nonaccountable plan (as described in Regulations Section 1.62-2(c)), and
excluding the following:
(a) Employer contributions to a plan of deferred compensation
which are not includable in the Employee's gross income for the taxable year in
which contributed, or Employer contributions under a simplified employee pension
plan to the extent such contributions are deductible by the Employee, or any
distributions from a plan of deferred compensation;
(b) Amounts realized from the exercise of a non-qualified
stock option, or when restricted stock (or property) held by the Employee either
becomes freely transferable or is no longer subject to a substantial risk of
forfeiture;
(c) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option; and
(d) Other amounts which received special tax benefits, or
contributions made by the Employer (whether or not under a salary reduction
agreement) towards the purchase of an annuity contract described in Section
403(b) of the Code (whether or not the contributions are actually excludable
from the gross income of the Employee).
2.44 SEVERANCE FROM SERVICE OR SEVERANCE FROM SERVICE DATE: The first
to occur of (i) the date on which an Employee terminates employment with the
Employer because he or she quits, is discharged, dies or retires, or (ii) the
first anniversary of the date on which the Employee is absent (with or without
pay) from employment for any other reason (such as vacation, holiday, sickness,
maternity or paternity leave, or layoff).
2.45 SPOUSE OR SURVIVING SPOUSE: The spouse or surviving spouse of a
Participant, provided that a former spouse will be treated as the Spouse or
Surviving Spouse to the extent provided under a Qualified Domestic Relations
Order as described in Section 414(p) of the Code.
2.46 TRUST: The Trust established under Article XI of the Plan.
2.47 TRUSTEE: CG Trust Company, or any successor or successors thereto,
to act as Trustee of the Trust and to hold the Trust assets in accordance with
Article XI hereof.
2.48 TRUST FUND: The assets held by the Trustee under the Trust.
2.49 VALUATION DATE: The last business day of each quarter of the Plan
Year and such other date(s) as the Administrator may designate.
2.50 YEAR OF SERVICE: A Period of Service equal to 365 Days of Service,
whether or not consecutive.
2.51 OTHER DEFINITIONS: In addition to the definitions contained in
this Section , the following terms are defined in the Section listed:
Section Term
------- ----
5.1 Excess Compensation
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<PAGE> 15
<TABLE>
<S> <C>
Social Security Taxable Wage Base
5.4 Annual Additions
Defined Benefit Fraction
Defined Contribution Dollar Limitation
Defined Contribution Fraction
Excess Amount
Highest Average Compensation
Limitation Year
Maximum Permissible Amount
Projected Annual Benefit
5.5 Actual Deferral Percentage
Average Actual Deferral Percentage
Eligible Employee
Excess 401(k) Contributions
Maximum Deferral Percentage
5.6 Excess Salary Deferrals
5.7 Aggregate Limit
Average Actual Contribution Percentage
Contribution Percentage
Eligible Participant
Employee Contribution
Excess Matching Contributions
Maximum Matching Contribution Percentage
6.7 Direct Rollover
Distributee
Eligible Retirement Plan
Eligible Rollover Distribution
6.9 Applicable Life Expectancy
Designated Beneficiary
Distribution Calendar Year
Life Expectancy
Participant's Benefit
Required Beginning Date
6.13 Hardship
7.2 Alternate Payee
Determination Period
Determination Period Account
Qualified Domestic Relations Order
11.13 Taxes
17.2 Determination Date
Key Employee
</TABLE>
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<PAGE> 16
Non-Key Employee
Permissive Aggregation Group
Required Aggregation Group
Top-Heavy Plan
Top-Heavy Ratio
Valuation Date
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<PAGE> 17
III ELIGIBILITY
3.1 PARTICIPATION:
(a) Each Eligible Employee becomes a Participant in the Plan
on the first Entry Date following his or her completion of ninety (90) Days of
Service, provided that he or she is an Eligible Employee on said Entry Date;
otherwise the Employee shall become a Participant immediately on again becoming
an Eligible Employee.
(b) Any Eligible Employee who is not currently making Salary
Reduction Contributions may elect to begin making such contributions at any
future Entry Date by filing the appropriate forms with the Administrator.
(c) An Eligible Employee who is making Salary Reduction
Contributions may elect to discontinue such contributions, and any Eligible
Employee who has discontinued making Salary Reduction Contributions may again
elect to make such contributions, by filing an election with the Administrator
on such forms and at such times as the Administrator shall specify. Any such
election to discontinue or resume Salary Reduction Contributions shall be
effective as of the next Open Enrollment Date (which shall be no later than the
next Entry Date).
3.2 REEMPLOYMENT: If an Eligible Employee who has completed ninety (90)
Days of Service with the Employer terminates employment and is thereafter
reemployed by the Employer as an Eligible Employee, the Employee will be
eligible to participate in the Plan as of his or her Reemployment Commencement
Date. If an Employee who has not completed ninety (90) Days of Service
terminates employment with the Employer and is thereafter reemployed by the
Employers as an Eligible Employee, the Employee will be eligible to participate
in the Plan in accordance with the provisions of Section 3.1 above.
3.3 CHANGE IN EMPLOYMENT STATUS: In the event a Participant ceases to
be an Eligible Employee and therefore becomes ineligible to participate, such
Employee will participate immediately upon again becoming an Eligible Employee.
In the event an Employee who is not an Eligible Employee becomes an Eligible
Employee, such Employee will immediately become a Participant, provided that the
Employee has completed ninety (90) Days of Service, and if not, immediately upon
completion of ninety (90) Days of Service.
3.4 ELECTION NOT TO PARTICIPATE: Employees who would otherwise be
eligible to participate in the Plan may elect not to participate in any
contributions made pursuant to Section 4.3 of the Plan for any Plan Year by
making such election in writing on such forms and at such times as the
Administrator shall specify.
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<PAGE> 18
IV CONTRIBUTIONS
4.1 SALARY REDUCTION CONTRIBUTIONS:
(a) An eligible Employee may elect, in writing on a form
prescribed by the Administrator, to have a portion of Compensation from each
payroll period, from 2% to 15% of his or her Compensation, contributed to his or
her Salary Reduction Contributions Account; provided, however, in no event shall
the dollar amount for any taxable year exceed $7,000, as adjusted annually by
the Adjustment Factor. A Participant may elect to increase, decrease or
discontinue Salary Reduction Contributions effective as of the next Open
Enrollment Date, by filing a new election with the Administrator in such a
manner and at such times as the Administrator shall specify.
(b) For purposes of the Plan, and with respect to Salary
Reduction Contributions on behalf of any Participant, such Salary Reduction
Contributions must be allocated to the Participant's Salary Reduction
Contributions Account as of a date within the Plan Year and must relate to
Compensation that either (i) would have been received by the Participant in the
Plan Year but for the Participant's election to defer it, or (ii) is
attributable to services performed by the Participant in the Plan Year and, but
for the Participant's election to defer, would have been received by the
Participant within 2 1/2 months after the close of the Plan Year.
4.2 EMPLOYER MATCHING CONTRIBUTIONS:
(a) Until such time as determined otherwise by resolution of
the Board of Directors of Plantronics, Inc., each Participating Employer shall
make Employer Matching Contributions for each Participant who is making Salary
Reduction Contributions in an amount equal to 25% of the Participant's Salary
Reduction Contributions on Salary Reduction Contributions up to 6% of the
Participant's Compensation. Employer Matching Contributions which would
otherwise be made on behalf of a Participant may be reduced to the extent
necessary to comply with the limitations of Sections 4.4, 5.4, 5.5 and 5.7 of
the Plan. Any amount that cannot be contributed to the Trust because of these
limitations shall be retained by the Participating Employer, and the
Participating Employer shall have no obligation to contribute such amount to the
Trust.
(b) The Administrator may, in its discretion, elect to treat
all or a portion of Employer Matching Contributions for a Plan Year as Qualified
Matching Contributions for purposes of the tests of Section 5.5(a) of the Plan.
(c) For all purposes of the Plan, Employer Matching or
Qualified Matching Contributions shall be subject to the distribution
limitations of Article VI. Amounts allocated to a Participant's Employer
Matching or Qualified Matching Contributions Account shall not be eligible for
hardship distribution under Section 6.13 of the Plan.
4.3 EMPLOYER PROFIT SHARING CONTRIBUTIONS:
(a) Aggregate Contributions.
(i) For each Plan Year, the aggregate Employer Profit
Sharing Contribution to be made to the Plan by the Participating Employers shall
be equal to ten percent (10%) of the Consolidated Pre-Tax Earnings of the
Participating Employers for the Fiscal Year ending with or within such Plan
Year, less the Quarterly Plan Offset for such Plan Year, and less the costs and
expenses incurred in the administration of the Plan, to the extent not paid by
the Participating Employers out of general assets pursuant to Section 12.1;
provided, however, that for the Plan Year beginning July 2, 1989, the Employer
Profit Sharing Contribution shall be determined with reference to the
Plantronics, Inc. Fiscal Year ending March 31, 1990.
(ii) For Plan Years beginning on or after April 3,
1994, in addition to the items specified in (i) above, the Employer Profit
Sharing Contribution will be reduced by the Cash Distribution Offset.
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<PAGE> 19
(b) Allocation. Each Participating Employer shall, out of its
Pre-Tax Earnings for the Fiscal Year or out of its accumulated earnings and
profits, make a contribution for each Plan Year equal to that portion of the
aggregate Employer Profit Sharing Contribution required under (a) above which
the Compensation paid or payable for the applicable Fiscal Year by the
Participating Employer to each Qualified Participant under paragraph (f)(ii)
below bears to the aggregate Compensation paid or payable for the applicable
Fiscal Year to all such Qualified Participants. For purposes of this Section ,
the applicable Fiscal Year shall be the Fiscal Year that ends with or within the
Plan Year for which such allocation occurs.
(c) Method of Allocation. Subject to the limitations of
Section 5.4, the aggregate Employer Profit Sharing Contributions of the
Participating Employers for the Plan Year, together with the forfeitures
incurred in such Plan Year, shall be allocated, as of the last day of the Plan
Year, among the Employer Profit Sharing Contributions Accounts of Qualified
Participants in the proportion which the Compensation paid or payable for the
Fiscal Year to each such Qualified Participant bears to the aggregate
Compensation paid or payable for the Fiscal Year to all such Qualified
Participants. This means that the allocation for the Plan Year beginning July 2,
1989 and ending March 31, 1990 will be based on Compensation for the Fiscal Year
beginning April 2, 1989 and ending March 31, 1990. For all subsequent Plan
Years, the allocation will be based on Compensation for the twelve month period
representing both the Plan Year and the Fiscal Year.
(d) Participating Employer Contribution. If any Participating
Employer is prevented from making its allocable share of the required Employer
Profit Sharing Contribution for any Plan Year because it has no Pre-Tax Earnings
or because such Pre-Tax Earnings are less than the amount of the allocated
Employer Profit Sharing Contribution, then one or more of the other
Participating Employers as shall be designated by the Board of Directors of
Plantronics, Inc. shall, out of their respective current Pre-Tax Earnings or
accumulated earnings and profits, make a contribution on behalf of such
Participating Employer in an amount equal to the portion of the contribution
such Participating Employer is prevented from making. Under no circumstances,
however, shall a Participating Employer be designated to make a contribution on
behalf of another Participating Employer unless the Participating Employer so
designated is a member of the affiliated group which includes the Participating
Employer prevented from making the contribution (as determined in accordance
with Section 1503 of the Code). If more than one Participating Employer is
designated to make a contribution on behalf of another Participating Employer,
the contribution shall be made by the Participating Employer in the proportion
determined by the Board of Directors of Plantronics, Inc.
(e) Payment of Contributions. Each Participating Employer
shall pay over its allocable share of the required Profit Sharing Contribution
directly to the Trustee as soon as practicable after the close of the Plan Year.
In no event, however, shall the Employer Profit Sharing Contribution be paid
over to the Trustee later than the time prescribed for filing the Participating
Employer's Federal income tax return (including extensions thereof) for the
Fiscal Year with respect to which the contribution for the Plan Year is made.
(f) Definitions. For purposes of this Section, the following
definitions shall apply:
(i) Cash Distribution Offset. For each Plan Year, the
aggregate Employer cash distribution made to eligible employees (other than
pursuant to the Quarterly Plan) for the Employer's fiscal year relating to such
Plan Year.
(ii) Consolidated Pre-Tax Earnings. For each Plan
Year, the amount determined as follows:
(A) First, there shall be determined the
Pre-Tax Earnings (or pre-tax losses) of each Participating Employer. The Pre-Tax
Earnings (or pre-tax losses) of any Participating Employer shall mean its
earnings and profits (or losses) for the Plan Year as determined on the basis of
its books of account in accordance with generally accepted accounting
principles, subject, however, to the adjustments specified below:
(1) There shall be deducted from the
Pre-Tax Earnings (or added to pre-tax losses) of such Participating Employer all
expenses and charges for the Plan Year other than (I) the Participating
Employer's estimated Federal and foreign income taxes, (II) items of loss or
expense not taken into account pursuant to subparagraph (3)
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below, and (III) the Participating Employer's aggregate contributions (other
than Salary Reduction Contributions) under this Plan and the Quarterly Plan.
(2) The Pre-Tax Earnings (or pre-tax losses) of all
foreign subsidiaries of such Participating Employer shall be included.
(3) The following items of income, gain, loss or
expense shall in no event be taken into account in the determination of Pre-Tax
Earnings (or pre-tax losses):
(I) all extraordinary items of income, gain,
loss or expense (as determined in accordance with the standards established by
Opinion No. 30 of the Accounting Principles Board) not incurred or realized by
such Participating Employer in the usual course of business,
(II) all gains or losses realized by such
Participating Employer upon the sale, exchange or other disposition of
investment securities or investment property (including real estate), and
(III) all gains or losses realized upon the
sale or other disposition of any land, facilities, plant or equipment used in
the business of such Participating Employer; provided, however, that losses
realized upon the sale or other disposition of assets incident to the phasing
out of one or more product lines of such Participating Employer shall be taken
into account in the determination of Pre-Tax Earnings (or pre-tax losses).
(B) Then, the Pre-Tax Earnings (or pre-tax losses) of
each Participating Employer shall be aggregated to determine the amount of the
Consolidated Pre-Tax Earnings (if any) of the Participating Employers for the
Plan Year.
(C) Notwithstanding anything to the contrary above,
Consolidated Pre-Tax Earnings shall be determined, with respect to each Plan
Year, with reference to the Fiscal Year of Plantronics, Inc. The computation of
Pre-Tax Earnings shall be determined without deducting interest expense,
provided that the Board of Directors of Plantronics, Inc. may, in its
discretion, reduce Pre-Tax Earnings by an operating interest reduction factor,
intended to approximate the interest expense attributable to operating
indebtedness of Plantronics, Inc.
(iii) Qualified Participant. A Participant who is credited
with at least one Year of Service on the last day of the Plan Year and who is an
Eligible Employee of a Participating Employer on the last day of such Plan Year.
A Participant who terminates employment during the Plan Year because of
Retirement, Disability or death shall be deemed to be employed on the last day
of the Plan Year for purposes of this Section.
(A) Notwithstanding anything in this Section to the
contrary, a Participant shall be deemed to be a "Qualified Participant" if he or
she terminated employment with a Participating Employer during such period by
reason of Retirement, Disability or death. For the Plan Year beginning July 2,
1989, a Participant shall be deemed to be a "Qualified Participant" if he or she
first performs an Hour of Service on or before July 2, 1989 and is either an
Eligible Employee of a Participating Employer on the last day of such Plan Year,
or has terminated employment with a Participating Employer during such Plan Year
by reason of Retirement, Disability or death.
(B) Effective for the Plan Year beginning July 2, 1989,
all subsequent Plan Years, individuals who are or were Employees of Wilcom
Products, Inc. or Kentrox Industries, Inc., shall no longer be Qualified
Participants under the Plan.
(C) Effective as of June 26, 1992, for the Plan Year
beginning March 29, 1992 and all subsequent Plan Years, individuals who are or
were employees of Plantronics Futurecomms, Inc. or Frederick Electronics
Corporation, shall no longer be Qualified Participants under the Plan.
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(iv) Quarterly Plan Offset. The aggregate
Participating Employer contributions made on behalf of Qualified Participants
under this Plan to the Plantronics, Inc. Quarterly Profit Sharing Plan
("Quarterly Plan") for the four Plan quarters included within the Plan Year in
question.
4.4 QUALIFIED NONELECTIVE CONTRIBUTIONS:
(a) The Administrator may, in its discretion, elect to treat
all or a portion of Employer Profit Sharing Contributions for a Plan Year as
Qualified Nonelective Contributions for purposes of the tests of Section 5.5(a)
and 5.7(a) of the Plan.
(b) Neither the Trustee nor any Participant shall have any
right or duty to inquire into the amount of the Employer's Profit Sharing or
Qualified Nonelective Contributions or the method used in determining the amount
of the Employer's Profit Sharing or Qualified Nonelective Contributions. The
Trustee shall be accountable only for funds actually received by the Trustee.
(c) For all purposes of the Plan, Employer Profit Sharing or
Qualified Nonelective Contributions shall be subject to the distribution
limitations of Article VI. Amounts allocated to a Participant's Profit Sharing
or Qualified Nonelective Contributions Account shall not be eligible for
hardship distribution under Section 6.13 of the Plan.
4.5 LIMITATIONS ON CONTRIBUTIONS: The Employer Contributions for any
Plan Year shall not exceed the maximum amount allowable as a deduction to the
Employer under the provisions of Section 404 of the Code. Notwithstanding the
preceding sentence, to the extent necessary to provide Top Heavy minimum
allocations, the Employer shall make Contributions, even if such Contributions
exceed the amount deductible to the Employer under the provisions of Section 404
of the Code.
4.6 TIME AND MANNER OF PAYMENT OF CONTRIBUTIONS: Contributions shall be
paid to the Trustee on a regular basis determined by the Administrator; provided
that, unless Treasury Regulations otherwise permit, all Salary Reduction Contri-
butions, Qualified Nonelective Contributions and Qualified Matching
Contributions for a Plan Year must be paid to the Trustee no later than the end
of the 12-month period immediately following the Plan Year to which such
contributions relate.
4.7 RECEIPT OF ASSETS FROM PLAN OF FORMER EMPLOYER:
(a) The Trustee may receive, with the consent of the
Administrator, a transfer of assets previously held under a qualified plan for
the benefit of an Employee; provided, however, that the Trustee may not receive
a direct transfer of assets from a plan to which Section 401(a)(11) of the Code
applies. Subject to the preceding sentence, the assets may be received directly
from the trustee of a plan qualified under Section 401(a) of the Code, or they
may be received from the Employee in accordance with Sections 402(c) or
408(d)(3) of the Code. Notwithstanding the foregoing, effective January 1, 1993,
the Trustee may receive, with the consent of the Administrator, a transfer of
assets previously held under a qualified plan for the benefit of an Employee in
the form of a Direct Rollover (as defined in Section 6.7 below).
(b) The Administrator and the Trustee shall be fully protected
in relying on data, representations, or other information provided by the
Employee or by the trustee or custodian of a qualified plan or individual
retirement account that transfers assets to it for the purpose of determining
that the requirements of subsection (a) above have been satisfied.
(c) Amounts attributable to elective contributions (as defined
in Treasury Regulations Section 1.401(k)-1(g)(3), including amounts treated as
elective contributions which are transferred from another qualified plan in a
plan-to-plan transfer, shall be subject to the distribution limitations provided
for in Treasury Regulations Section 1.401(k)-1(d).
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V ACCOUNTS AND ALLOCATIONS
5.1 PARTICIPANT'S ACCOUNTS: For each Participant, a separate Account
shall be maintained for each of the following, and for the income, expenses,
gains and losses attributable thereto:
(a) Salary Reduction Contributions. A Participant's Salary
Reduction Contributions Account shall be credited with amounts attributable to
Salary Reduction Contributions pursuant to Section 4.1.
(b) Employer Matching Contributions. A Participant's Employer
Matching Contributions Account shall be credited with all amounts, if any,
attributable to Employer Matching Contributions pursuant to Section 4.2.
(c) Qualified Matching Contributions. A Participant's
Qualified Matching Contributions Account shall be credited with all amounts, if
any, attributable to Qualified Matching Contributions.
(d) Employer Profit Sharing Contributions. A Participant's
Employer Profit Sharing Contributions Account shall be credited with all
amounts, if any, attributable to Employer Profit Sharing Contributions pursuant
to Section 4.3.
(e) Qualified Nonelective Contributions. A Participant's
Qualified Nonelective Contributions Account shall be credited with all amounts,
if any, attributable to Qualified Nonelective Contributions. The Employer may,
with respect to a Plan Year, allocate Qualified Nonelective Contributions to
such Participants and in such a manner as it deems necessary or appropriate to
satisfy the tests of Section 5.5(a) and 5.7(a).
(f) Rollover Contributions. A Participant's Rollover
Contributions Account shall be credited with all amounts transferred to the Plan
pursuant to Section 4.7.
(g) Such other Account or Accounts as the Administrator shall
deem necessary or appropriate.
5.2 ALLOCATION OF CONTRIBUTIONS: As of each Valuation Date, the
Administrator shall allocate to the Accounts of each Participant the
contributions made for his or her benefit since the preceding Valuation Date.
5.3 ALLOCATION OF EARNINGS OR LOSSES: As of each Valuation Date, the
Accounts of each Participant shall be adjusted to reflect income, gains, losses
or expenses. Adjustments shall be made in such manner as the Administrator
determines is fair and reasonable, provided that each Account shall generally
share in the income, gains, losses or expenses associated with an asset of that
Account in the proportion which the Account's investment in the asset bears to
the total amount of the Trust Fund invested in such asset; provided, however,
unless the Administrator elects otherwise, as of each Valuation Date, the net
earnings or losses of the Trust Fund, including capital gains and losses whether
or not realized, since the preceding Valuation Date shall be allocated to the
Accounts of all Participants in accordance with the ratio which each Account of
each Participant bears to the aggregate of all such Accounts. For purposes of
this allocation, the Account balances of each Participant shall consist of the
balances of all the investments of each of the Participant's Accounts as of the
preceding Valuation Date adjusted by adding thereto one-half of the
Contributions made to each such Account since such date and excluding therefrom
all withdrawals since such date. Notwithstanding any of the foregoing, the
allocation of earnings and losses, as herein provided, need not be made if the
method used to account for the respective interest of each Participant is such
that, in an equitable manner, it includes a revaluation at current market values
of each such interest as of each Valuation Date, including, but not limited to,
the Unit Method of accounting.
5.4 SECTION 415 LIMITATIONS:
(a) (i) If the Participant does not participate in, and has
never participated in another qualified plan maintained by the Employer, or a
welfare benefit fund, as defined in Section 419(e) of the Code maintained by the
Employer, or an individual medical account, as defined in Section 415(l)(2) of
the Code, maintained by the Employer, which
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provides an Annual Addition as defined below, the amount of Annual Additions
which may be credited to the Participant's Account for any Limitation Year will
not exceed the lesser of the Maximum Permissible Amount or any other limitation
contained in this Plan. If the Contributions that would otherwise be contributed
or allocated to the Participant's Account would cause the Annual Additions for
the Limitation Year to exceed the Maximum Permissible Amount, the amount
contributed or allocated will be reduced so that the Annual Additions for the
Limitation Year will equal the Maximum Permissible Amount.
(ii) Prior to determining the Participant's actual
Section 415 Compensation for the Limitation Year, the Employer may determine the
Maximum Permissible Amount for a Participant on the basis of a reasonable
estimation of the Participant's Section 415 Compensation for the Limitation
Year, uniformly determined for all Participants similarly situated.
(iii) As soon as is administratively feasible after
the end of the Limitation Year, the Maximum Permissible Amount for the
Limitation Year will be determined on the basis of the Participant's actual
Section 415 Compensation for the Limitation Year.
(iv) If, pursuant to paragraph (iii) above, or as a
result of (1) a reasonable error in determining the amount of Salary Reduction
Contributions that may be made with respect to any Participant under the limits
of this Section, (2) an allocation of forfeitures, or (3) other facts and
circumstances to which Regulations Section 1.415-6(b)(6) shall be applicable,
there is an Excess Amount, such portion of the Excess Amount which consists of
Salary Reduction Contributions and the earnings thereon will be distributed to
the affected Participant. If, after such distribution of Salary Reduction
Contributions and the earnings thereon to the Participant, an Excess Amount
remains, the Excess Amount will be disposed of as follows:
(A) If the Participant is covered by the
Plan at the end of the Limitation Year, the Excess Amount in the Participant's
Account will be used to reduce Employer contributions (including any allocation
of forfeitures) for such Participant in the next Limitation Year, and each
succeeding Limitation Year if necessary.
(B) If the Participant is not covered by
the Plan at the end of a Limitation Year, the Excess Amount will be held
unallocated in a suspense account. The suspense account will be applied to
reduce Employer contributions for all remaining Participants in the next
Limitation Year, and each succeeding Limitation Year if necessary.
(C) If a suspense account is in existence
at any time during a Limitation Year pursuant to this Section, it will not
participate in the allocation of the Trust's investment gains and losses. If a
suspense account is in existence at any time during a particular Limitation
Year, all amounts in the suspense account must be allocated and reallocated to
Participant's Accounts before any Contributions may be made to the Plan for that
Limitation Year. Excess Amounts (other than Excess Amounts which consist of
Salary Reduction Contributions and the earnings thereon) may not be distributed
to Participants or former Participants. In the event of termination of the Plan,
the suspense account shall revert to the Employer to the extent it may not then
be allocated to any Participant's Account.
(b) (i) This Section applies if, in addition to this Plan, the
Participant is covered under another defined contribution plan maintained by the
Employer, a welfare benefit fund, as defined in Section 419(e) of the Code
maintained by the Employer, or an individual medical account, as defined in
Section 415(l)(2) of the Code, maintained by the Employer, which provides an
Annual Addition, during any Limitation Year. The Annual Additions which may be
credited to a Participant's Account under this Plan for any such Limitation Year
will not exceed the Maximum Permissible Amount reduced by the Annual Additions
credited to a participant's account under the other plans and welfare benefit
funds for the same Limitation Year. If the Annual Additions with respect to the
participant under other defined contribution plans and welfare benefit funds
maintained by the Employer are less than the Maximum Permissible Amount and the
Employer contribution that would otherwise be contributed or allocated to the
Participant's Account under this Plan would cause the Annual Additions for the
Limitation Year to exceed this limitation, the amount contributed or allocated
will be reduced so
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that the Annual Additions under all such plans and funds for the Limitation Year
will equal the Maximum Permissible Amount. If the Annual Additions with respect
to the Participant under such other defined contribution plans and welfare
benefit funds in the aggregate are equal to or greater than the Maximum
Permissible Amount, no amount will be contributed or allocated to the
Participant's Account under this Plan for the Limitation Year.
(ii) Prior to determining the Participant's actual
Compensation for the Limitation Year, the Employer may determine the Maximum
Permissible Amount for a Participant in the manner described in paragraph (a) of
this Section.
(iii) As soon as is administratively feasible after
the end of the Limitation Year, the Maximum Permissible Amount for the
Limitation Year will be determined on the basis of the Participant's actual
Compensation for the Limitation Year.
(iv) If, pursuant to paragraph (iii) above or as a
result of the allocation of forfeitures, a Participant's Annual Additions under
this Plan and such other plans would result in an Excess Amount for a Limitation
Year, the Excess Amount will be deemed to consist of the Annual Additions last
allocated, except that Annual Additions attributable to a welfare benefit fund
or individual medical account will be deemed to have been allocated first
regardless of the actual allocation date.
(v) If an Excess Amount was allocated to a
Participant on an allocation date of this Plan which coincides with an
allocation date of another plan, the Excess Amount attributed to this Plan will
be the product of,
(A) the total Excess Amount allocated as of
such date, times
(B) the ratio of (i) the Annual Additions
allocated to the Participant for the Limitation Year as of such date under this
Plan to (ii) the total Annual Additions allocated to the Participant for the
Limitation Year as of such date under this and all other defined contribution
plans.
(vi) Any Excess Amount attributed to this Plan will
be disposed in the manner described in paragraph (a) (iv) above.
(c) If the Employer maintains, or at any time maintained, a
qualified defined benefit plan covering any Participant in this Plan, the sum of
the Participant's defined benefit plan fraction and defined contribution plan
fraction will not exceed 1.0 in any Limitation Year. The Annual Additions which
may be credited to the Participant's Account under this Plan for any Limitation
Year will be limited in accordance with the provisions of paragraph (b) of this
Section.
(d) Definitions.
(i) Annual Additions: The sum of the following
amounts credited to a Participant's Account for the Limitation Year are treated
as Annual Additions:
(A) Employer contributions;
(B) Employee contributions;
(C) forfeitures;
(D) amounts allocated, after March 31, 1984,
to an individual medical account, as defined in Section 415(l)(2) of the Code,
which is part of a pension or annuity plan maintained by the Employer;
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(E) amounts derived from contributions paid or
accrued after December 31, 1985, in taxable years ending after such date, which
are attributable to post-retirement medical benefits, allocated to the separate
account of a Key Employee, as defined in Section 419A(d)(3) of the Code, under a
welfare benefit fund, as defined in Section 419(e) of the Code, maintained by
the Employer;
(F) any Excess Amount applied under Sections
(a)(iv) or (b)(vi) in the Limitation Year to reduce Employer contributions.
(ii) Defined Benefit Fraction: A fraction, the
numerator of which is the sum of the Participant's Projected Annual Benefits
under all the defined benefit plans (whether or not terminated) maintained by
the Employer, and the denominator of which is the lesser of 125 percent of the
dollar limitation determined for the Limitation Year under Sections 415(b) and
(d) of the Code or 140 percent of the Highest Average Compensation, including
any adjustments under Section 415(b) of the Code.
Notwithstanding the above, if the Participant was a
participant as of the first day of the first Limitation Year beginning after
December 31, 1986, in one or more defined benefit plans maintained by the
Employer which were in existence on May 6, 1986, the denominator of this
fraction will not be less than 125 percent of the sum of the annual benefits
under such plans which the Participant had accrued as of the close of the last
Limitation Year beginning before January 1, 1987, disregarding any changes in
the terms and conditions of the plan after May 5, 1986. The preceding sentence
applies only if the defined benefit plans individually and in the aggregate
satisfied the requirements of Section 415 for all Limitation Years beginning
before January 1, 1987.
(iii) Defined Contribution Dollar Limitation:
$30,000, as adjusted pursuant to Section 415(d)(1) of the Code.
(iv) Defined Contribution Fraction: A fraction, the
numerator of which is the sum of the Annual Additions to the Participant's
account under all the defined contribution plans (whether or not terminated)
maintained by the Employer for the current and all prior Limitation Years
(including the Annual Additions attributable to the Participant's nondeductible
Employee contributions to all defined benefit plans, whether or not terminated,
maintained by the Employer, and the Annual Additions attributable to all welfare
benefit funds, as defined in Section 419(e) of the Code, and individual medical
accounts, as defined in Section 415(1)(2) of the Code, maintained by the
Employer), and the denominator of which is the sum of the maximum aggregate
amounts for the current and all prior Limitation Years of Service with the
Employer (regardless of whether a defined contribution plan was maintained by
the Employer). The maximum aggregate amount in any Limitation Year is the lesser
of 125 percent of the dollar limitation determined under Sections 415(b) and (d)
of the Code in effect under Section 415(c)(1)(A) of the Code or 35 percent of
the Participant's Section 415 Compensation for such year.
If the Employee was a Participant as of the end of
the first day of the first Limitation Year beginning after December 31, 1986, in
one or more defined contribution plans maintained by the Employer which were in
existence on May 6, 1986, the numerator of this fraction will be adjusted if the
sum of this fraction and the Defined Benefit Fraction would otherwise exceed 1.0
under the terms of this Plan. Under the adjustment, an amount equal to the
product of (1) the excess of the sum of the fractions over 1.0, times (2) the
denominator of this fraction, will be permanently subtracted from the numerator
of this fraction. The adjustment is calculated using the fractions as they would
be computed as of the end of the last Limitation Year beginning before January
1, 1987, and disregarding any changes in the terms and conditions of the plan
made after May 5, 1986, but using the Section 415 limitation applicable to the
first Limitation Year beginning on or after January 1, 1987.
The Annual Addition for any Limitation Year beginning
before January 1, 1987, shall not be recomputed to treat all Employee
contributions as Annual Additions.
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(v) Excess Amount: The amount of Annual Additions
which, if credited to a Participant's Account for a Limitation Year, would
exceed the Maximum Permissible Amount.
(vi) Highest Average Compensation: The average
Section 415 Compensation for the three consecutive Years of Service with the
Employer that produces the highest average.
(vii) Limitation Year: The Plan Year. All qualified
plans maintained by the Employer must use the same Limitation Year. If the
Limitation Year is amended to a different 12-consecutive month period, the new
Limitation Year must begin on a date within the Limitation Year in which the
amendment is made.
(viii) Maximum Permissible Amount: The maximum Annual
Addition that may be contributed or allocated to a Participant's Account under
the Plan for any Limitation Year shall not exceed the lesser of:
(A) the Defined Contribution Dollar
Limitation, or
(B) 25 percent of the Participant's
Section 415 Compensation for the Limitation Year. The Section 415 Compensation
limitation shall not apply to any contribution for medical benefits (within the
meaning of Section 401(h) or Section 419A(f)(2) of the Code) which is otherwise
treated as an Annual Addition under Section 415(1)(1) or 419A(d)(2) of the Code.
If a short Limitation Year is created because of an
amendment changing the Limitation Year to a different 12-consecutive month
period, the Maximum Permissible Amount will not exceed the Defined Contribution
Dollar Limitation multiplied by the following fraction:
Number of months in the short Limitation Year
---------------------------------------------
12
(ix) Projected Annual Benefit: The annual retirement
benefit (adjusted to an actuarially equivalent straight life annuity if such
benefit is expressed in a form other than a straight life annuity or qualified
joint and survivor annuity) to which the Participant would be entitled under the
terms of a plan assuming:
(A) the Participant will continue employment
until normal retirement age under the plan (or current age, if later), and
(B) the Participant's Section 415
Compensation for the current Limitation Year and all other relevant factors used
to determine benefits under the plan will remain constant for all future
Limitation Years.
5.5 DISCRIMINATION TESTING OF SALARY REDUCTION CONTRIBUTIONS:
(a) Actual Deferral Percentage. The anti-discrimination
requirements of Section 401(k)(3) of the Code provide that in each Plan Year one
of the following tests must be met:
(i) The Average Actual Deferral Percentage for
Eligible Employees who are Highly Compensated Employees for the Plan Year shall
not exceed the Average Actual Deferral Percentage for Eligible Employees who are
Non-Highly Compensated Employees for the Plan Year multiplied by 1.25; or
(ii) The Average Actual Deferral Percentage for
Eligible Employees who are Highly Compensated Employees for the Plan Year shall
not exceed the Average Actual Deferral Percentage for Eligible Employees who are
Non-Highly Compensated Employees for the Plan Year multiplied by two (2),
provided that the Average Actual Deferral Percentage for Eligible Employees who
are Highly Compensated Employees does not exceed the Average Actual
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Deferral Percentage for Eligible Employees who are Non-Highly Compensated
Employees by more than two (2) percentage points or such lesser amount as the
Secretary of the Treasury shall prescribe to prevent the multiple use of this
alternative limitation with respect to any Highly Compensated Employee.
(b) Corrective Procedure.
(i) Correction of Excess 401(k) Contributions. The
Administrator shall have the responsibility for monitoring the Plan's compliance
with the limitations of Section (a) above throughout the Plan Year. The
Administrator shall maintain such records as are necessary to demonstrate
compliance with this Section. The Administrator shall have the discretionary
power to take any and all steps it deems necessary or appropriate to ensure
compliance with those limitations, including, without limitation:
(A) Restricting the amount of Salary
Reduction Contributions by Highly Compensated Employees and their Family
Members;
(B) Pursuant to subsection (iv) below,
distributing Excess 401(k) Contributions to the Highly Compensated Employees and
Family Members who made such contributions; and
(C) Treating Employer Matching or
Profit Sharing Contributions, as the case may be, as Qualified Matching or
Qualified Nonelective Contributions, respectively.
(ii) Leveling Method. The amount of Excess 401(k)
Contributions for a Highly Compensated Employee for a Plan Year is to be
determined by the following leveling method, under which the Actual Deferral
Percentage of the Highly Compensated Employee with the highest Actual Deferral
Percentage is reduced to the extent required to enable the Plan to satisfy the
anti-discrimination test of Section 5.5(a) or to cause such Highly Compensated
Employee's Actual Deferral Percentage to equal the Actual Deferral Percentage of
the Highly Compensated Employee with the next highest Actual Deferral
Percentage. The procedure requires that contributions be reduced exclusively
with respect to those Highly Compensated Employees who, together with their
Family Members, received allocations of Employer Matching, Qualified Matching,
Profit Sharing or Qualified Nonelective Contributions, or who made Salary
Reduction Contributions, all of which when expressed as a percentage of their
respective Compensation for the Plan Year, were in excess of the Maximum
Deferral Percentage.
(A) The Excess 401(k) Contributions of
the Highly Compensated Employee (and Family Members(s)) with the highest Actual
Deferral Percentage shall be reduced; such reduction shall continue, as
necessary, until such Employee's (Employees') Actual Deferral Percentage
equal(s) those of the Highly Compensated Employee(s) with the second highest
Actual Deferral Percentage(s).
(B) Following the application of the
preceding paragraph (A), if it is still
necessary to reduce Highly Compensated Employees' (and their Family Members')
Excess 401(k) Contributions, the contributions of (or allocations on behalf of,
if applicable) Highly Compensated Employees (and Family Member(s)) with the
highest and second highest Actual Deferral Percentages shall be reduced and the
amounts shall be distributed, as necessary, until such Employees' Actual
Deferral Percentage equal those of the Highly Compensated Employee(s) with the
third highest Actual Deferral Percentage.
(C) Following the application of
paragraph (B), if it is still necessary to reduce Highly Compensated Employees'
(and their Family Members') Excess 401(k) Contributions, the procedure, the
beginning of which is described in paragraphs (A) and (B), shall continue until
no further reductions are necessary.
(D) The determination and correction
of Excess 401(k) Contributions of a Highly Compensated Employee whose Actual
Deferral Percentage is determined by aggregating contributions with Family
Members in accordance with subsection (c)(i) shall be made under subsection
(c)(ii) below.
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(iii) Character of Excess 401(k) Contributions. The Excess
401(k) Contributions of a Highly Compensated Employee or Family Member shall be
deemed to consist of contributions and allocations as determined according to
the following order of primacy:
(A) First, the Employee's Excess 401(k) Contributions
shall be deemed to consist of any Salary Reduction Contributions which exceed
the highest rate or amount at which Salary Reduction Contributions are matched;
provided, such contributions shall be offset by any Excess Salary Deferrals
distributable to the Employee pursuant to Section 5.6 below.
(B) Second, the Employee's Excess 401(k)
Contributions shall be deemed to consist of (1) any Salary Reduction
Contributions and (2) any Employer Matching and Qualified Matching
Contributions, each in proportion to the Employee's total Salary Reduction
Contributions and total Employer Matching and Qualified Matching Contributions
for the Plan Year; provided, any Salary Reduction Contributions characterized as
Excess 401(k) Contributions by this paragraph (B) shall be offset by any Excess
Salary Deferrals distributable to the Employee pursuant to Section 5.6 below and
not taken into account under paragraph (b)(iii)(A) above.
(C) Third, the Employee's Excess 401(k) Contributions
shall be deemed to consist of any allocations of Employer Profit Sharing and
Qualified Nonelective Contributions.
(iv) Distribution of Excess 401(k) Contributions. If, pursuant
to paragraph (b)(i)(B) above, the Administrator elects to distribute Excess
401(k) Contributions (increased by attributable income and decreased by
attributable losses) to Highly Compensated Employees (and their Family Members),
the Administrator shall make such distributions:
(A) On or before the date which falls 2-1/2 months
after the last day of the Plan Year for which such Excess 401(k) Contributions
were made, to avoid liability for the federal excise tax (equal to 10% of the
undistributed Excess 401(k) Contributions), which will be imposed on Excess
401(k) Contributions distributed after such date;
(B) In the event of a complete termination of the
Plan during the Plan Year in which there are Excess 401(k) Contributions, such
distributions shall be made after the date of termination of the Plan and as
soon as administratively feasible, but in no event later than the close of the
twelve-month period immediately following such termination; and
(C) In any case, before the last day of the Plan Year
next following the Plan Year for which such Excess 401(k) Contributions were
made.
(D) Excess 401(k) Contributions (including amounts
recharacterized) shall be treated as Annual Additions under the Plan.
(v) Adjustment for Income/Loss. After the Administrator has
determined the aggregate amount and character of Excess 401(k) Contributions to
be distributed to a given Highly Compensated Employee (and his or her Family
Member(s)), the amount to be distributed shall be increased to reflect any
attributable income, or decreased to reflect any attributable losses. Excess
401(k) Contributions shall be adjusted for any income or loss up to the end of
the Plan Year for which such Excess 401(k) Contributions were made. The income
or loss allocable to Excess 401(k) Contributions shall be calculated by the Plan
Administrator using any reasonable method for computing the income or loss
allocable to Excess 401(k) Contributions, provided that the method does not
violate Section 401(a)(4) of the Code, is used consistently for all Participants
and for all corrective distributions under the plan for the Plan Year, and is
used by the Plan Administrator for allocating income to Participants' Accounts.
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<PAGE> 29
(vi) Uniform Procedures. All actions taken by the
Administrator under this Section shall be pursuant to consistently applied
procedures that do not arbitrarily discriminate in favor of those Highly
Compensated Employees (and their Family Members) whose Actual Deferral
Percentages are nearest to the Maximum Deferral Percentage.
(c) Special Rules.
(i) Aggregation of Family Members. For purposes of
determining the Actual Deferral Percentage of a Participant who is five-percent
owner or one of the ten most highly-paid Highly Compensated Employees, the
Actual Deferral Percentage and Section 415 Compensation of such Participant
shall include the Salary Deferral Contributions and Section 415 Compensation for
the Plan Year of Family Members (as defined in Section 414(q)(6) of the Code).
Family Members, with respect to Highly Compensated Employees, shall be
disregarded as separate Employees in determining the Actual Deferral Percentage
both for Participants who are Non-Highly Compensated Employees and for
Participants who are Highly Compensated Employees.
(ii) Corrective Procedure and Family Aggregation. The
determination and correction of Excess 401(k) Contributions of a Highly
Compensated Employee whose Actual Deferral Percentage is determined by
aggregating contributions with Family Members shall be made as follows: the
Actual Deferral Percentage shall be reduced as required under subsection (b)(ii)
above, and the Excess 401(k) Contributions for the aggregated group of Family
Members shall be allocated among the Family Members in proportion to the Salary
Deferral Contributions and Qualified Matching Contributions used pursuant to
paragraph (b)(i)(C) above of each Family Member that are combined to determine
the Actual Deferral Percentage.
(iii) Computation of Compensation. For purposes of
this Section, a Participant's Compensation for the entire Plan Year shall be
included, whether or not he or she made Salary Reduction Contributions for the
entire Plan Year.
(iv) Coordination with Distribution of Excess
Deferrals. After calculation of an amount to be distributed to a Participant
pursuant to the procedures discussed in subsection (b)(iii) and (iv), if the
Participant in question has also made Excess Salary Deferrals during the
calendar year ended within or coincident with the Plan Year, the amount actually
distributed to the Participant shall be adjusted to take into account such
Excess Salary Deferrals pursuant to Section 5.6 below and any relevant
regulations issued by the Secretary of the Treasury.
(v) Aggregation of Plans. For purposes of determining
whether a plan satisfies the Actual Deferral Percentage test in paragraph (a) of
this Section 5.5, all elective contributions that are made under two or more
plans that are aggregated for purposes of Sections 401(a)(4) or 410(b) of the
Code (other than Section 410(b)(2)(A)(ii) of the Code) are to be treated as made
under a single plan. If two or more plans are permissively aggregated for
purposes of Section 401(k) of the Code, the aggregate plans must also satisfy
Sections 401(a)(4) and 410(b) of the Code as though they were a single plan. For
Plan Years beginning after December 31, 1989 two or more plans may be aggregated
in order to satisfy Section 401(k) of the Code only if they have the same Plan
Year.
(d) The Employer shall maintain records sufficient to
demonstrate satisfaction of the test in Section 5.5(a) above and the amount, if
any, of Qualified Nonelective Contributions or Qualified Matching Contributions,
or both, used in such test.
(e) Definitions. For purposes of this Article, the following
definitions shall apply:
(i) Actual Deferral Percentage:
(A) With respect to each Eligible Employee, a
percentage, calculated as the sum of the amount of (A) Salary Reduction
Contributions, (B) Qualified Matching Contributions, and (C) Qualified
Nonelective Contributions, made on behalf of such Eligible Employee for the Plan
Year, divided by such Employee's W-2
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<PAGE> 30
Compensation (as defined in Section 2.9(a) above), plus salary reductions
described in Section 2.9(c) above, for the Plan Year.
(B) The Actual Deferral Percentage for any
Participant who is a Highly Compensated Employee for the Plan Year and who is
eligible to have Salary Reduction Contributions (and Qualified Nonelective or
Qualified Matching Contributions, or both, if treated as Salary Reduction
Contributions for purposes of the test under this Section 5.5, allocated to his
or her Accounts under two or more arrangements described in Section 401(k) of
the Code, that are maintained by the Employer, shall be determined as if such
Salary Reduction Contributions (and, if applicable, such Qualified Nonelective
Contributions or Qualified Matching Contributions, or both) were made under a
single arrangement. If a Highly Compensated Employee participates in two or more
cash or deferred arrangements that have different Plan Years, all cash or
deferred arrangements ending with or within the same calendar year shall be
treated as a single arrangement. Notwithstanding the foregoing, certain plans
shall be treated as separate if mandatorily disaggregated under regulations
under Section 401(k) of the Code.
(C) For purposes of computing Actual Deferral
Percentages, an Employee who would be a Participant but for the failure to make
Salary Reduction Contributions shall be treated as a Participant on whose behalf
no Salary Reduction Contributions are made.
(ii) Average Actual Deferral Percentage. The average
(expressed as a percentage) of the Actual Deferral Percentages for all Eligible
Employees in the relevant group.
(iii) Eligible Employee: Any Employee of the Employer
who is otherwise authorized under the terms of the Plan to have Contributions
allocated to the Employee's Account for the Plan Year.
(iv) Excess 401(k) Contributions: With respect to any
Plan Year, the excess of:
(A) The aggregate amount of Employer
Contributions actually taken into account in computing the Actual Deferral
Percentage of Highly Compensated Employees for such Plan Year, over
(B) The maximum amount of such Contributions
permitted by the test in Section 5.5(a) of the Plan (determined by reducing
Contributions made on behalf of Highly Compensated Employees in order of the
Actual Deferral Percentages, beginning with the highest of such percentages).
(v) Maximum Deferral Percentage: The highest
permissible Actual Deferral Percentage for the Highly Compensated Employees who
wish to ensure that they will make the highest possible amount of Salary
Reduction Contributions. The Maximum Deferral Percentage shall be a percentage
which shall not cause the Average Actual Deferral Percentage for Highly
Compensated Employees to exceed the limitations described in Section 5.5(a)
above. (To the extent required under Section 5.5(b), the Maximum Deferral
Percentage shall be determined by reducing allocations made on behalf of and
contributions made by Highly Compensated Employees in accordance with subsection
(b)(ii) above.
5.6 DISTRIBUTION OF EXCESS SALARY DEFERRAL CONTRIBUTIONS:
(a) A Participant may assign to this Plan any Excess Salary
Deferrals made during a taxable year of the Participant by notifying the Plan
Administrator in writing of the amount of the Excess Salary Deferrals to be
assigned to the Plan on or before March 15 of the year following the
Participant's taxable year in which the Excess Salary Deferrals were made.
"Salary Deferrals" shall mean any Employer
contributions made to the Plan at the election of the Participant, in lieu of
cash compensation, and shall include contributions made pursuant to a salary
reduction agreement or other deferral mechanism. With respect to any taxable
year, a Participant's Salary Deferral is the sum of all Employer contributions
made on behalf of such Participant pursuant to an election to defer under any
qualified cash or deferred
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<PAGE> 31
arrangement as described in Section 401(k) of the Code, any simplified employee
pension cash or deferred arrangement as described in Section 402(h)(1)(B) of the
Code, any eligible deferred compensation plan under Section 457 of the Code, any
plan as described under Section 501(c)(18), and any Employer contributions made
on the behalf of a Participant for the purchase of an annuity contract under
Section 403(b) of the Code pursuant to a salary reduction agreement. Elective
deferrals shall not include any deferrals properly distributed as excess annual
additions.
"Excess Salary Deferrals" shall mean those Salary Deferrals
that are includable in a Participant's gross income under Section 402(g) of the
Code to the extent such Participant's Salary Deferrals for a taxable year exceed
the dollar limitation under such Section of the Code. For purposes of Section
5.4, Excess Salary Deferrals shall be treated as Annual Additions under the
Plan. A Participant is deemed to notify the Plan Administrator of any Excess
Salary Deferral Contributions that arise by taking into account only those
Salary Deferral Contributions made to this Plan and any other plans of the
Employer.
Notwithstanding any other provision of the Plan, Excess Salary
Deferrals, plus any income and minus any loss allocable thereto, shall be
distributed no later than April 15 to any Participant to whose account Excess
Salary Deferrals were assigned for the preceding taxable year and who claims
Excess Salary Deferrals for such taxable year.
(b) Determination of income or loss: Excess Salary Deferrals
shall be adjusted for any income or loss up to the end of the Plan Year for
which such Excess Salary Deferrals were made. The income or loss allocable to
Excess Salary Deferrals shall be calculated by the Plan Administrator using any
reasonable method for computing the income or loss allocable to Excess Salary
Deferrals, provided that the method does not violate Section 401(a)(4) of the
Code, is used consistently for all Participants and for all corrective
distributions under the plan for the Plan Year, and is used by the Plan
Administrator for allocating income to Participants' Accounts.
5.7 DISCRIMINATION TESTING OF EMPLOYER MATCHING CONTRIBUTIONS:
(a) Except as provided in subsection (b) below, for each Plan
Year, Participant's allocations of Employer Matching Contributions for each Plan
Year must satisfy one of the following tests:
(i) The Average Actual Contribution Percentage for
Eligible Employees who are Highly Compensated Employees shall not exceed the
Average Actual Contribution Percentage for Eligible Employees who are Non-
Highly Compensated Employees multiplied by 1.25; or
(ii) The Average Actual Contribution Percentage for
Eligible Employees who are Highly Compensated Employees shall not be more than
the lesser of (A) twice the Average Actual Contribution Percentage for Eligible
Employees who are Non-Highly Compensated Employees or (B) the Average Actual
Contribution Percentage for Eligible Employees who are Non-Highly Compensated
Employees plus 2 percentage points.
(b) Special Rules.
(i) Multiple Use: If one or more Highly Compensated
Employees participate in both a cash or deferred arrangement and a plan subject
to the Actual Contribution Percentage test maintained by the Employer and the
sum of the Actual Deferral Percentage and Actual Contribution Percentage of
those Highly Compensated Employees subject to either or both tests exceeds the
Aggregate Limit, then the Actual Contribution Percentage of those Highly
Compensated Employees who also participate in a cash or deferred arrangement
will be reduced (beginning with such Highly Compensated Employee whose Actual
Contribution Percentage is the highest) so that the limit is not exceeded. The
amount by which each Highly Compensated Employee's Contribution Percentage
Amounts is reduced shall be treated as an Excess Matching Contribution. The
Actual Deferral Percentage and Actual Contribution Percentage of the Highly
Compensated Employees are determined after any corrections required to meet the
Actual Deferral Percentage and Actual Contribution Percentage tests. Multiple
use does not occur if either the Actual Deferral Percentage or Actual
Contribution Percentage of the Highly
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<PAGE> 32
Compensated Employees does not exceed 1.25 multiplied by the Actual Deferral
Percentage and Actual Contribution Percentage of the Non-Highly Compensated
Employees.
(ii) For purposes of this Section, the Contribution
Percentage for any Participant who is eligible to have Contribution Percentage
Amounts allocated to his or her account under two or more plans described in
Section 401(a) of the Code, or arrangements described in Section 401(k) of the
Code that are maintained by the Employer, shall be determined as if the total of
such Contribution Percentage Amounts was made under each plan. If a Highly
Compensated Employee participates in two or more cash or deferred arrangements
that have different plan years, all cash or deferred arrangements ending with or
within the same calendar year shall be treated as a single arrangement.
Notwithstanding the foregoing, certain plans shall be treated as separate if
mandatorily disaggregated under regulations under Section 401(m) of the Code.
(iii) In the event that this Plan satisfies the
requirements of Sections 401(m), 401(a)(4) or 410(b) of the Code only if
aggregated with one or more other plans, or if one or more other plans satisfy
the requirements of such Sections of the Code only if aggregated with this Plan,
then this Section shall be applied by determining the Contribution Percentage of
Employees as if all such plans were a single plan. Plans may be aggregated in
order to satisfy Section 401(m) of the Code only if they have the same Plan
Year.
(iv) For purposes of determining the Contribution
Percentage of a Participant who is five-percent owner or one of the ten most
highly-paid Highly Compensated Employees, the Contribution Percentage Amounts
and Section 415 Compensation of such Participant shall include the Contribution
Percentage Amounts and Section 415 Compensation for the Plan Year of Family
Members (as defined in Section 414(q)(6) of the Code). Family Members, with
respect to Highly Compensated Employees, shall be disregarded as separate
Employees in determining the Contribution Percentage both for Participants who
are Non-Highly Compensated Employees and for Participants who are Highly
Compensated Employees.
(v) For purposes of determining the Contribution
Percentage test, Employee Contributions are considered to have been made in the
Plan Year in which contributed to the trust. Employer Matching Contributions and
Qualified Nonelective Contributions will be considered made for a Plan Year if
made no later than the end of the twelve-month period beginning on the day after
the close of the Plan Year.
(vi) The Employer shall maintain records sufficient
to demonstrate satisfaction of the Actual Contribution Percentage test and the
amount of Qualified Nonelective Contributions or Qualified Matching
Contributions, or both, used in such test.
(vii) The determination and treatment of the
Contribution Percentage of any Participant shall satisfy such other requirements
as may be prescribed by the Secretary of the Treasury.
(c) Definitions. For purposes of this Article, the following
definitions shall apply:
(i) Aggregate Limit: The sum of (A) 125 percent of
the greater of the Actual Deferral Percentage of the Non-Highly Compensated
Employees for the Plan Year or the Actual Contribution Percentage of Non-Highly
Compensated Employees under the Plan subject to Section 401(m) of the Code for
the Plan Year of the cash or deferred arrangement and (B) the lesser of 200% or
two plus the lesser of such Actual Deferral Percentage or Actual Contribution
Percentage. "Lesser" is substituted for "greater" in "(A)", above, and "greater"
is substituted for "lesser" after "two plus the" in "(B)" if it would result in
a larger Aggregate Limit.
(ii) Average Actual Contribution Percentage: The
average of the Contribution Percentages of the Eligible Participants in a group.
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<PAGE> 33
(iii) Contribution Percentage: The ratio (expressed
as a percentage) of the Participant's Contribution Percentage Amounts to the
Participant's W-2 Compensation (as defined in Section 2.9(a) above), plus salary
reductions described in Section 2.9(c) above, for the Plan Year.
(iv) Eligible Participant: Any Employee who is
eligible to make an Employee Contribution, or any Elective Deferral (if the
Employer takes such contributions into account in the calculation of the
Contribution Percentage), or to receive Employer Matching Contributions
(including forfeitures) or Qualified Matching Contributions. If an Employee
Contribution is required as a condition of participation in the Plan, any
Employee who would be a Participant in the Plan if such Employee made such a
contribution shall be treated as an eligible Participant on behalf of whom no
Employee Contributions are made.
(v) Employee Contribution: Any contribution made to
the Plan by or on behalf of a Participant that is included in the Participant's
gross income in the year in which made and that is maintained under a separate
account to which earnings and losses are allocated.
(vi) Excess Matching Contributions: The portion of a
Highly Compensated Employee's allocations of Employer Matching Contributions
which causes the Employee's Actual Contribution Percentage to exceed the Maximum
Matching Contribution Percentage.
(vii) Maximum Matching Contribution Percentage: The
highest permissible Actual Contribution Percentage for the Highly Compensated
Employees who wish to ensure that the highest possible aggregate allocation of
Employer Matching Contributions are made to their respective Accounts. The
Maximum Matching Contribution Percentage shall be a percentage which will not
cause the Average Actual Contribution Percentage for Highly Compensated
Employees to exceed the applicable limitations discussed in Section 5.7(a)
above. To the extent required pursuant to the provisions of Section 5.8 below,
the Maximum Matching Contribution Percentage shall be determined by reducing
allocations made on behalf of and contributions made by, Highly Compensated
Employees in order of their respective Actual Contribution Percentages beginning
with the highest such percentage.
5.8 CORRECTIVE PROCEDURE WHEN DISCRIMINATORY MATCHING
CONTRIBUTIONS ARE MADE:
(a) The Administrator shall have responsibility of monitoring
the Plan's compliance with the limitations of the preceding Section throughout
the Plan Year. The Administrator shall have the discretionary power to take any
and all steps it deems necessary or appropriate to ensure compliance with those
limitations, including, without limitation:
(i) pursuant to subsection (c) below, distributing
vested Excess Matching Contributions to the Eligible Employees who are Highly
Compensated Employees and Family Members who received such allocations;
(ii) treating as amounts to be reallocated pursuant
to subsection (d) below, the portion of Excess Matching Contributions which
consists of unvested allocations of Employer Matching Contributions to the
Employer Matching Contribution Accounts of Eligible Employees who are Highly
Compensated Employees and their Family Members; and
(iii) limiting the amount of Employer Matching
Contributions allocated to the Employer Matching Contribution Accounts of
Eligible Employees who are Highly Compensated Employees and their Family
Members.
(b) Notwithstanding any other provisions in this Plan, if,
pursuant to subsection (a)(i) or (ii) above, the Administrator elects to
distribute or reallocate Excess Matching Contributions (increased by
attributable income and decreased by attributable losses), the Administrator
shall take such action(s) (i) on or before the date which falls 2-1/2 months
after the last day of the Plan Year for which such Excess Matching Contributions
were made, if the Employer wishes to avoid liability for the federal excise tax
(equal to 10% of undistributed and unreallocated Excess Matching Contributions),
which
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<PAGE> 34
will be imposed on Excess Matching Contributions distributed or reallocated
after such date, and (ii) in any case, before the last day of the Plan Year next
following the Plan Year for which such contributions were made.
(c) Distributions and/or reallocations of Excess Matching
Contributions shall be made according to the procedure discussed below. The
procedure requires that allocations and contributions be reduced (and amounts be
distributed or reallocated) exclusively with respect to those Employees who are
Highly Compensated Employees who, together with their Family Members, received
allocations of Employer Matching Contributions which, when expressed as a
percentage of their respective Section 415 Compensations for the Plan Year, were
in excess of the Maximum Matching Contribution Percentage.
(i) The allocations of Employer Matching
Contributions of the Highly Compensated Employee(s) (and Family Member(s)) with
the highest percentage contribution(s) shall be reduced first; such reduction
shall continue, as necessary, until such individual's (individuals')
contribution percentage(s) equal(s) those of the individual(s) with the second
highest percentage contribution percentage(s).
(ii) Following the application of paragraph (i), if
it is still necessary to reduce Highly Compensated Employees' (and their Family
Members') allocations of Employer Matching Contributions, the contributions of
Highly Compensated Employees with the highest and second highest contribution
percentages shall be reduced, as necessary, until such individuals' contribution
percentages equal those of the individual(s) with the third highest contribution
percentage.
(iii) Following the application of paragraph (ii), if
it is still necessary to reduce Highly Compensated Employees' (and their Family
Members') allocations of Employer Matching Contributions, the procedure, the
beginning of which is outlined in paragraphs (i) and (ii), shall continue until
such time as no further reductions are necessary.
(iv) The determination and correction of Excess
Matching Contributions of a Highly Compensated Employee whose Actual
Contribution Percentage is determined by aggregating contributions with Family
Members shall be made as follows: the Actual Contribution Percentage shall be
reduced as required under subsections (i)-(iii) above, and the Excess Matching
Contributions for the aggregated group of Family Members shall be allocated
among the Family Members in proportion to the Employer Matching Contributions
and Qualified Nonelective Contributions used pursuant to Section 5.7(b) of each
Family Member that are combined to determine the Actual Contribution Percentage.
(v) The Excess Matching Contributions of a Highly
Compensated Employee or Family Member shall be deemed to consist of allocations
and contributions as determined according to the following order:
(A) First, the Employee's Excess Matching
Contributions shall be deemed to consist of any Excess Salary Deferrals which
both are distributable to the Employee pursuant to Section 5.6 above and were
used to satisfy the Section 5.7(a) nondiscrimination tests pursuant to Section
5.7(b) above.
(B) Second, the Employee's Excess Matching
Contributions shall be deemed to consist of any Employer Matching Contributions
used to satisfy the Section 5.7(a) tests in proportion to the Employee's
Employer Matching Contributions used to satisfy the Section 5.7(a) test for the
Plan Year.
(C) Third, the Employee's Excess Matching
Contributions shall be deemed to consist of any allocations of Employer Profit
Sharing Contributions which were characterized as Qualified Nonelective
Contributions and used to satisfy the Section 5.7(a) nondiscrimination tests
pursuant to Section 5.7(b) above.
(vi) After the Administrator has determined the
aggregate amount, and character, of Excess Matching Contributions to be
distributed to, or in the case of nonvested Employer Matching Contributions,
reallocated from, the Account of a given Highly Compensated Employee or Family
Member, the amount to be distributed or reallocated shall be increased to
reflect any attributable income, or decreased to reflect any attributable
losses. The attributable income or
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<PAGE> 35
loss to be distributed or reallocated shall be calculated by the Plan
Administrator using any reasonable method for computing the income or loss
allocable to Excess Matching Contributions, provided that the method does not
violate Section 401(a)(4) of the Code, is used consistently for all Participants
and for all corrective distributions under the plan for the Plan Year, and is
used by the Plan Administrator for allocating income to Participants' Accounts.
(vii) After calculation of an amount to be
distributed and/or reallocated to an Employee pursuant to the procedure
discussed in paragraphs (i) through (vi), if the Employee in question has also
made Excess Salary Deferrals during the calendar year ended within or coincident
with the Plan Year, any Salary Reduction Contributions scheduled to be
distributed to the Employee shall be adjusted to take into account any Excess
Salary Deferrals deemed to be Excess Matching Contributions pursuant to
paragraph (v) above and any relevant regulations issued by the Secretary of the
Treasury.
(d) After the procedure outlined in subsection (c) is
completed, all amounts of Excess Matching Contributions other than unvested
allocations of Employer Matching Contributions shall be distributed to the
respective Highly Compensated Employees and Family Members to whose Accounts the
Excess Matching Contributions were made.
(i) Forfeitable Employer Matching Contributions shall
be reallocated from the Employer Matching Contributions Account(s) of the
relevant Highly Compensated Employee(s) or Family Member(s) as additional
Employer Profit Sharing Contributions pursuant to Section 4.3.
(e) All actions taken by the Administrator under this Section
shall be pursuant to consistently applied procedures which do not arbitrarily
discriminate in favor of those Highly Compensated Employees whose contribution
percentages are nearest to the Maximum Matching Contribution Percentage.
(f) Any amount distributed to a Highly Compensated Employee or
Family Member pursuant to this Section shall not be subject to any of the
consent rules for Participants and spouses contained in Article VI below.
Similarly, any such distribution will not make the Employee liable for the
federal taxes applicable to early withdrawals (Section 72(t) of the Code) and
excess distributions (Section 4981A of the Code).
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<PAGE> 36
VI VESTING AND DISTRIBUTION OF ACCOUNTS
6.1 VESTED INTEREST:
(a) A Participant's interest in his or her Salary Reduction
Contributions Account, Matching Contributions Account, Qualified Matching
Contributions Account, Qualified Nonelective Contributions Account, Quarterly
Plan Account and Rollover Contributions Account under this Plan shall be at all
times fully vested and nonforfeitable. A Participant's interest in his or her
Employer Profit Sharing Contributions Account shall be fully vested and
nonforfeitable at the Participant's Normal Retirement Date or Early Retirement
Date, on the Participant's death or Disability, upon termination of the Plan,
and otherwise as follows:
(i) For Plan Years ending on or before April 2, 1994,
Employer Profit Sharing Contributions shall vest as follows:
<TABLE>
<CAPTION>
Years of Service Percent Vested
---------------- --------------
<S> <C>
Less than 1 year 0%
1 year 20%
2 years 40%
3 years 60%
4 years 80%
5 years or more 100%
</TABLE>
(ii) For Plan Years beginning on or after April 3, 1994,
Employer Profit Sharing Contributions shall
vest as follows:
<TABLE>
<CAPTION>
Years of Service Percent Vested
---------------- --------------
<S> <C>
Less than 1 year 0%
1 year 50%
2 years 100%
</TABLE>
(b) For purposes of the above vesting schedules, the crediting of
service shall be subject to the following rules:
(i) If a Participant who has voluntarily terminated or has
been discharged returns to employment and is credited with an Hour of Service on
or before incurring a Break in Service, the Participant will receive credit for
the time elapsed during that absence.
(ii) If a Participant is absent for a reason other than
termination or discharge and then voluntarily terminates or is discharged, the
date on which the Participant must first be credited with an Hour of Service to
receive credit for the time elapsed during that absence is the first anniversary
of the first day of absence.
(iii) If a Participant has a Break in Service of five (5)
years or more, then service after such Break in Service shall not be taken into
account for purposes of determining the nonforfeitable percentage of the
Participant's Account balance which accrued prior to such Break in Service.
(iv) If a Participant has less than one (1) Year of
Service, service prior to a Break in Service shall not be taken into account for
purposes of determining the nonforfeitable percentage of the Participant's
Account balance if the period of severance equals or exceeds the Participant's
service before such period of severance.
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<PAGE> 37
(c) If the applicable vesting schedule in paragraph (a) is later
amended to provide less rapid vesting, or if the Plan is amended in any way that
directly or indirectly affects the computation of the Participant's
nonforfeitable percentage, each Participant (i) who has completed three Years of
Service with the Employer and (ii) whose Account(s) would have vested more
rapidly prior to the amendment, may irrevocably elect during the election period
to have the nonforfeitable percentage of his or her Accounts calculated without
regard to such amendment. For purposes of this Section, the election period
shall begin the date the amendment is adopted, and shall end on the date 60 days
after the later of (i) the date the amendment is adopted, (ii) the date the
amendment becomes effective, or (iii) the date the Participant is issued written
notice of the amendment by the Employer or the Administrator.
6.2 EMPLOYER PROFIT SHARING CONTRIBUTIONS FORFEITURES:
(a) If an Employee incurs a Severance from Service, and the value
of the Employee's vested Account balance is not greater than $3,500, the
Employee will receive a lump sum distribution of the value of the entire vested
portion of such Account balance and the nonvested portion will be treated as a
forfeiture as of the last day of the Plan Year in which the Severance from
Service occurred. For purposes of this Section, if the value of an Employee's
vested Account balance is zero, the Employee shall be deemed to have received a
distribution of such vested Account balance.
(b) If an Employee incurs a Severance from Service, and elects,
in accordance with the requirements of Section 6.7, to receive the value of the
Employee's vested Account balance, the nonvested portion will be treated as a
forfeiture as of the last day of the Plan Year in which the Severance from
Service occurred.
(c) If an Employee receives a distribution pursuant to this
Section and the Employee resumes employment covered under this Plan, the
Employee's Employer-derived Account balance will be restored to the amount on
the date of distribution if the Employee repays to the Plan the full amount of
the distribution attributable to Employer contributions before the earlier of 5
years after the Participant's Reemployment Commencement Date, or the date the
Participant incurs 5 consecutive Breaks in Service following the date of the
distribution.
(i) If an Employee is deemed to receive a distribution
pursuant to this Section, and the Employee resumes employment covered under
this Plan before the date the Participant incurs 5 consecutive Breaks in
Service, upon the Employee's Reemployment Commencement Date, the
Employer-derived Account balance of the Employee will be restored to the amount
on the date of such deemed distribution.
(ii) Restoration will first be made out of any unallocated
forfeitures and, if such forfeitures are insufficient to restore the Employee's
Account, the Participating Employer which last employed the Employee shall
contribute an additional amount necessary to restore such Account. If such a
restoration is made, the restored amount shall be maintained as a separate
Account, and the vested portion of such Account from time to time shall equal an
amount ("X") determined by the following formula:
X = P (AB + (R x D)) - (R x D)
For purposes of applying such formula: "P" is the vested percentage at the
relevant time, "AB" is the account balance at the relevant time; "D" is the
amount previously distributed to the Participant upon his or her termination of
employment; and "R" is the ratio of the account balance at the relevant time to
the amount of the account balance which was restored. If an amount is restored
to an Employee under this Section, a separate Account shall be maintained for
allocations made after his or her reemployment and vesting with respect to such
Account shall be in accordance with the provisions of Section 6.1.
(d) If an Employee incurs a Severance from Service, the value of
the Employee's vested Account Balance derived from Employer and Employee
contributions is greater than $3,500, and the Employee does not elect, in
accordance with the requirements of Sections 6.7 and 6.8, to receive the value
of the Employee's vested Account balance, the nonvested portion of the
Employee's Account will be treated as a forfeiture as of the last day of the
Plan Year in which the Employee incurs five consecutive Breaks in Service.
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(e) Any amounts forfeited pursuant to this Section, or pursuant
to Section 5.8, shall be first used to restore any accounts pursuant to
paragraph (c) above, and any remaining amounts allocated as additional Employer
Profit Sharing Contributions pursuant to Section 4.3.
6.3 NORMAL OR EARLY RETIREMENT: A Participant may retire as of the
first day of any month coinciding with or following his or her Normal Retirement
Date or Early Retirement Date. The Participant's Accounts shall be distributed
in accordance with Sections 6.6 - 6.8 below.
6.4 DEATH BENEFITS: If a Participant or former Participant dies
before the entire vested balance of his or her Accounts has been distributed,
the vested balance in his or her Accounts will be paid to the Participant's
Beneficiary in accordance with Sections 6.6 - 6.8 below.
6.5 TERMINATION OF EMPLOYMENT: Following a Participant's Severance
from Service, the Participant's Accounts shall be valued as soon as practicable
in accordance with the Administrator's customary procedures, and distributed in
accordance with Sections 6.6 - 6.8 of the Plan.
6.6 COMMENCEMENT OF DISTRIBUTION:
(a) Subject to Sections (b) and (c) and Sections 6.7 and 6.8
below, the Accounts of a Participant who incurs a Severance from Service shall
be distributed at a date designated by the Administrator, which designation
(except as provided below) shall be made in a uniform and nondiscriminatory
manner and shall be as soon as practicable, based on the Valuation Date
immediately preceding the Participant's Severance from Service Date. If, at the
date of distribution, the Participant's Accounts exceed (or at the time of any
prior distribution exceeded) $3,500, the Participant (or, where the Participant
is deceased, the Participant's Spouse) must consent in writing to the
distribution before it may be made. If the Participant or, where applicable, the
Participant's Spouse does not consent in writing to the distribution, the
Participant's Accounts will be held in the Trust Fund until the earlier of (i)
the Participant's death, or (ii) the Participant's Normal Retirement Date. If a
Participant's consent to a distribution is required hereunder, then the
Administrator shall provide the Participant (or, if applicable, the
Participant's Spouse) with a notice of the right to elect immediate distribution
or the right to defer distribution until the Participant's Normal Retirement
Date. A retired, disabled, deceased or terminated Participant's Accounts shall
be increased by any Contributions that are allocated to the Participant's
Accounts after the Valuation Date.
(b) Unless the Participant elects otherwise, distributions to a
Participant must commence no later than 60 days following the close of the Plan
Year in which occurs the latest of:
(i) The date the Participant attains age 65;
(ii) The 10th anniversary of the date on which the
Participant first commences participation in the Plan; or
(iii) The date on which the Participant incurs a Severance
from Service.
Notwithstanding the foregoing, the failure of a Participant (and, where
applicable, the Participant's Spouse) to consent to a distribution while a
benefit is immediately distributable within the meaning of this Section, shall
be deemed to be an election to defer commencement of payment of any benefit
sufficient to satisfy this Section.
(c) Notwithstanding the foregoing, only the Participant need
consent to the distribution of an Account balance that is immediately
distributable. Neither the consent of the Participant nor the Participant's
Spouse shall be required to the extent that a distribution is required to
satisfy Section 401(a)(9) or Section 415 of the Code. In addition, upon
termination of this Plan, if the Plan does not offer an annuity option
(purchased from a commercial provider) and if the Employer or any entity within
the same controlled group as the Employer does not maintain another defined
contribution plan (other than an employee stock ownership plan as defined in
Section 4975(e)(7) of the Code), the Participant's Account
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balance will, without the Participant's consent, be distributed to the
Participant. However, if any entity within the same controlled group as the
Employer maintains another defined contribution plan (other than an employee
stock ownership plan as defined in Section 4975(e)(7) of the Code) then the
Participant's Account balance will be transferred, without the Participant's
consent, to the other plan if the Participant does not consent to an immediate
distribution.
(d) Notwithstanding anything to the contrary herein, the balance
in each Participant's Accounts must begin to be distributed not later than the
April 1 following the calendar year in which the Participant reaches age 70 1/2.
6.7 DIRECT ROLLOVERS AND WITHHOLDING:
(a) Effective Date: The provisions of this Section shall apply to
all distributions from the Plan made on or after January 1, 1993.
(b) General Rule: If the Distributee of any Eligible Rollover
Distribution elects to have the Eligible Rollover Distribution paid directly to
an Eligible Retirement Plan, and specifies the Eligible Retirement Plan to which
the Eligible Rollover Distribution is to be paid, then the Eligible Rollover
Distribution will be paid to that Eligible Retirement Plan in a Direct Rollover.
(c) Waiver of 30 Day Notice Requirement: If a distribution is one
to which Sections 401(a)(11) and 417 of the Code do not apply, such distribution
may commence less than 30 days after the notice required under Section 1.411(a)-
11(c) of the Regulations is given, provided that: (1) the Administrator clearly
informs the Participant that the Participant has a right to a period of at least
30 days after receiving the notice to consider the decision of whether or not to
elect a distribution (and, if applicable, a particular distribution option); and
(2) the Participant, after receiving the notice, affirmatively elects a
distribution.
(d) Definitions: For purposes of this Section , the following
definitions shall apply:
(i) Direct Rollover: An Eligible Rollover Distribution
paid directly to an Eligible Retirement Plan for the benefit of a Distributee.
(ii) Distributee: An Employee, surviving spouse of a
deceased employee, or a spouse entitled to payment under a Qualified Domestic
Relations Order.
(iii) Eligible Retirement Plan:
(A) With respect to any Distributee, an
individual retirement account described in Section 408(a) of the Code.
(B) With respect to a Distributee who is an
Employee or a spouse or former spouse of an Employee who is an Alternate Payee
under a Qualified Domestic Relations Order as defined in Section 9.2 below, an
Eligible Retirement Plan shall also mean an individual retirement annuity (other
than an endowment contract) described in Section 408(b) of the Code, a qualified
trust described in Section 401(a) of the Code or an annuity plan described in
Section 403(a) of the Code.
(iv) Eligible Rollover Distribution: An Eligible Rollover
Distribution is any distribution of all or any portion of the balance to the
credit of the Distributee, except that an Eligible Rollover Distribution does
not include: any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or joint life expectancies)
of the Distributee and the Distributee's designated Beneficiary, or for a
specified period of ten years or more; any distribution to the extent such
distribution is required under section 401(a)(9) of the Code; and the portion of
any distribution that is not includible in gross income (determined without
regard to the exclusion for net unrealized appreciation with respect to Employer
securities).
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(e) If a Participant does not elect to have an Eligible Rollover
Distribution transferred directly to an Eligible Retirement Plan, or in the case
of any distribution which is not an Eligible Rollover Distribution, the Plan
Committee shall direct the Trustee as to any required withholding.
6.8 FORM OF BENEFIT:
(a) For all Participant Accounts which exceed (or at the time of
any prior distribution exceeded) $3,500, the Participant or the Participant's
Beneficiary must choose one of the following methods of distribution:
(i) A lump sum payment; or
(ii) Equal, or nearly equal, at least annual installments
over a term certain extending not beyond the normal life expectancies of the
Participant and his or her Beneficiary.
(b) If the Participant or his or her Beneficiary chooses the
installment method of distribution, the following shall apply:
(i) If the Participant dies before the completion of
installment payments, any balance in the Participant's Accounts shall be paid to
his or her Beneficiary as provided in Section 6.4. If a Beneficiary who is
receiving payments dies, any remaining balance of the Account shall be paid to
the personal representative of the Beneficiary's estate. When establishing the
terms of installment payments, at the time payments begin, the present value of
the payments projected to be paid to the Participant, based on his or her life
expectancy, must be more than 50% of the present value of the payments projected
to be paid to the Participant and his or her Beneficiary, based on their life
expectancies.
(ii) As of any subsequent Valuation Date, the
Administrator, with the consent of the Participant, may cause the amount then
credited to the Accounts of the Participant to be paid in a lump sum.
(iii) The following rules apply to payments after a
Participant's death:
(A) Distribution Beginning Before Death. If
a Participant dies after payments have begun, then his or her remaining vested
Account balances, if any, must be distributed to his or her Beneficiary at least
as rapidly as under the method of distribution elected by the Participant;
(B) Distribution Beginning After Death.
(I) If the Participant dies before
distribution of his or her interest begins, distribution of the Participant's
entire interest shall be completed by December 31 of the calendar year
containing the fifth anniversary of the Participant's death except to the extent
that an election is made to receive distributions in accordance with (aa) or
(bb) below:
(aa) if any portion of the
Participant's interest is payable to a designated Beneficiary, distributions may
be made over the life or over a period certain not greater than the life
expectancy of the designated Beneficiary commencing on or before December 31 of
the calendar year immediately following the calendar year in which the
Participant died;
(bb) if the designated
Beneficiary is the Participant's Surviving Spouse, the date distributions are
required to begin in accordance with (aa) above shall not be earlier than the
later of (1) December 31 of the calendar year immediately following the calendar
year in which the Participant died and (2) December 31 of the calendar year in
which the Participant would have attained age 70 1/2.
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If the Participant has not made an
election pursuant to this paragraph (I) by the time of his or her death, the
Participant's designated Beneficiary must elect the method of distribution no
later than the earlier of (1) December 31 of the calendar year in which
distributions would be required to begin under this Section , or (2) December 31
of the calendar year which contains the fifth anniversary of the date of death
of the Participant. If the Participant has no designated Beneficiary, or if the
designated Beneficiary does not elect a method of distribution, distribution of
the Participant's entire interest must be completed by December 31 of the
calendar year containing the fifth anniversary of the Participant's death.
(II) For purposes of paragraph (I)
above, if the Surviving Spouse dies after the Participant, but before payments
to such Spouse begin, the provisions of paragraph (I), with the exception of
paragraph (bb) therein, shall be applied as if the Surviving Spouse were the
Participant.
(III) For the purposes of this
Section , distribution of a Participant's interest is considered to begin on the
Participant's required beginning date (or, if paragraph (II) above is
applicable, the date distribution is required to begin to the Surviving Spouse
pursuant to paragraph (I) above). If distribution in the form of an annuity
irrevocably commences to the Participant before the required beginning date, the
date distribution is considered to begin is the date distribution actually
commences.
(c) Notwithstanding anything herein to the contrary, if the
Participant (or, if applicable, the Beneficiary) signed a written distribution
prior to January 1, 1984, the Committee must distribute the Participant's vested
Accounts in accordance with that designation. This paragraph does not apply to a
pre-1984 distribution designation, and the Committee will not comply with that
designation, if any of the following applies: (i) the method of distribution
would have disqualified the Plan under Section 401(a)(9) of the Code as in
effect on December 31, 1983; (ii) the Participant did not have a vested Account
as of December 31, 1983; (iii) the distribution designation does not specify the
timing and form of the distribution and the Beneficiaries (in order of
priority); (iv) the substitution of a Beneficiary modifies the payment period of
the distribution; or (v) the Participant (or Beneficiary) modifies or revokes
the distribution designation. In the event of a revocation, the Plan must
distribute, no later than December 31 of the calendar year following the year of
revocation, the amount which the Participant would have received if the
distribution designation had not been in effect or, if the Beneficiary revokes
the distribution designation, the amount which the Beneficiary would have
received, if the distribution designation had not been in effect. The Committee
will apply this paragraph (c) to rollovers and transfers in accordance with Part
J of the Treasury Regulations relating to Section 401(a)(9) of the Code.
6.9 MINIMUM DISTRIBUTION REQUIREMENTS:
(a) General Rules.
(i) The requirements of this Section shall apply to any
distribution of a Participant's interest and will take precedence over any
inconsistent provisions of this Plan. Unless otherwise specified, the provisions
of this article apply to calendar years beginning after December 31, 1984.
(ii) All distributions required under this Section shall
be determined and made in accordance with the proposed regulations under Section
401(a)(9) of the Code, including the minimum distribution incidental benefit
requirement of Section 1.401(a)(9)-2 of the proposed regulations.
(b) Required Beginning Date. The entire interest of a Participant
must be distributed or begin to be distributed no later than the Participant's
required beginning date.
(c) Limits on Distribution Periods. As of the first distribution
calendar year, distributions, if not made in a single-sum, may only be made over
one of the following periods (or a combination thereof):
(i) the life of the Participant,
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(ii) the life of the Participant and a designated
Beneficiary,
(iii) a period certain not extending beyond the life
expectancy of the Participant, or
(iv) a period certain not extending beyond the joint and
last survivor expectancy of the Participant and a designated Beneficiary.
(d) Determination of Amount to be Distributed Each Year. If the
Participant's interest is to be distributed in other than a single sum, the
following minimum distribution rules shall apply on or after the required
beginning date:
(i) Individual Account.
(A) If a Participant's benefit is to be
distributed over (1) a period not extending beyond the life expectancy of the
Participant or the joint life and last survivor expectancy of the Participant
and the Participant's designated Beneficiary or (2) a period not extending
beyond the life expectancy of the designated Beneficiary, the amount required to
be distributed for each calendar year, beginning with distributions for the
first distribution calendar year, must at least equal the quotient obtained by
dividing the Participant's benefit by the applicable life expectancy.
(B) For calendar years beginning before
January 1, 1989, if the Participant's Spouse is not the designated Beneficiary,
the method of distribution selected must assure that at least 50% of the present
value of the amount available for distribution is paid within the life
expectancy of the Participant.
(C) For calendar years beginning after
December 31, 1988, the amount to be distributed each year, beginning with
distributions for the first distribution calendar year shall not be less than
the quotient obtained by dividing the Participant's benefit by the lesser of (1)
the applicable life expectancy or (2) if the Participant's Spouse is not the
designated Beneficiary, the applicable divisor determined from the table set
forth in Q&A-4 of Section 1.401(a)(9)-2 of the Proposed Regulations.
Distributions after the death of the Participant shall be distributed using the
applicable life expectancy in paragraph (A) above as the relevant divisor
without regard to proposed regulations Section 1.401(a)(9)-2.
(D) The minimum distribution required for
the Participant's first distribution calendar year must be made on or before the
Participant's required beginning date. The minimum distribution for other
calendar years, including the minimum distribution for the distribution calendar
year in which the Employee's required beginning date occurs, must be made on or
before December 31 of that distribution calendar year.
(ii) Other Forms. If the Participant's benefit is
distributed in the form of an annuity purchased from an insurance company,
distributions thereunder shall be made in accordance with the requirements of
Section 401(a)(9) of the Code and the proposed regulations thereunder. Any
annuity contract distributed from this Plan must be nontransferable.
(e) Definitions: For purposes of this Section, the following
definitions shall apply:
(i) Applicable Life Expectancy. The life expectancy (or
joint and last survivor expectancy) calculated using the attained age of the
Participant (or designated Beneficiary) as of the Participant's (or designated
Beneficiary's) birthday in the applicable calendar year reduced by one for each
calendar year which has elapsed since the date life expectancy was first
calculated. If life expectancy is being recalculated, the applicable life
expectancy shall be the life expectancy as so recalculated. The applicable
calendar year shall be the first distribution calendar year, and if life
expectancy is being recalculated such succeeding calendar year.
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(ii) Designated Beneficiary. The individual who is
designated as the Beneficiary under the Plan in accordance with Section
401(a)(9) of the Code and the proposed regulations thereunder.
(iii) Distribution Calendar Year. A calendar year for
which a minimum distribution is required. For distributions beginning before the
Participant's death, the first distribution calendar year is the calendar year
immediately preceding the calendar year which contains the Participant's
required beginning date. For distributions beginning after the
Participant's death, the first distribution calendar year is the calendar year
in which distributions are required to begin pursuant to Section 401(a)(9) of
the Code.
(iv) Life Expectancy. Life expectancy and joint and last
survivor expectancy are computed by use of the expected return multiples in
Tables V and VI of Section 1.72-9 of the income tax regulations. Unless
otherwise elected by the Participant (or Spouse in the case of distributions
which begin following the Participant's death and in which the Spouse is named
as the designated Beneficiary) by the time distributions are required to begin,
life expectancies shall be recalculated annually. Such election shall be
irrevocable as to the Participant (or Spouse) and shall apply to all subsequent
years. The life expectancy of a nonspouse Beneficiary may not be recalculated.
(v) Participant's Benefit.
(A) The Account balance as of the last
Valuation Date in the calendar year immediately preceding the distribution
calendar year (valuation calendar year) increased by the amount of any
contributions or forfeitures allocated to the Account balance as of dates in the
valuation calendar year after the Valuation Date and decreased by distributions
made in the valuation calendar year after the Valuation Date.
(B) Exception for second distribution
calendar year. For purposes of paragraph (A) above, if any portion of the
minimum distribution for the first distribution calendar year is made in the
second distribution calendar year on or before the required beginning date, the
amount of the minimum distribution made in the second distribution calendar year
shall be treated as if it had been made in the immediately preceding
distribution calendar year.
(vi) Required Beginning Date.
(A) General Rule. The required beginning
date of a Participant is the first day of April of the calendar year following
the calendar year in which the Participant attains age 70 1/2.
(B) Transitional Rules. The required
beginning date of a Participant who attains age 70 1/2 before January 1, 1988,
shall be determined in accordance with (I) or (II) below:
(I) Non-5-percent Owners. The
required beginning date of a Participant who is not a 5-percent owner is the
first day of April of the calendar year following the calendar year in which the
later of Retirement or attainment of age 70 1/2 occurs.
(II) 5-percent Owners. The required
beginning date of a Participant who is a 5-percent owner during any year
beginning after December 31, 1979, is the first day of April following the later
of:
(aa) the calendar year in
which the Participant attains age 70 1/2, or
(bb) the earlier of the
calendar year with or within which ends the Plan Year in which the Participant
becomes a 5-percent owner, or the calendar year in which the Participant
retires.
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The required beginning date of a
Participant who is not a 5-percent owner who attains age 70 1/2 during 1988 and
who has not retired as of January 1, 1989, is April 1, 1990.
(C) 5-percent Owner. A Participant is
treated as a 5-percent owner for purposes of this Section if such Participant is
a 5-percent owner as defined in Section 416(i) of the Code (determined in
accordance with Section 416 of the Code but without regard to whether the Plan
is Top-Heavy) at any time during the Plan Year ending with or within the
calendar year in which such owner attains age 66 1/2 or any subsequent Plan
Year.
(D) Once distributions have begun to a
5-percent owner under this Section , they must continue to be distributed, even
if the Participant ceases to be a 5-percent owner in a subsequent year.
(f) Transitional Rule
(i) Notwithstanding the other requirements of this article
and subject to the requirements of Sections 6.6 - 6.8, distribution on behalf of
any Employee, including a 5-percent owner, may be made in accordance with all of
the following requirements (regardless of when such distribution commences):
(A) The distribution by the Trust is one
which would not have disqualified such Trust under Section 401(a)(9) of the Code
as in effect prior to amendment by the Deficit Reduction Act of 1984.
(B) The distribution is in accordance with a
method of distribution designated by the Employee whose interest in the Trust is
being distributed or, if the Employee is deceased, by a Beneficiary of such
Employee.
(C) Such designation was in writing, was
signed by the Employee or the Beneficiary, and was made before January 1, 1984.
(D) The Employee had accrued a benefit under
the Plan as of December 31, 1983.
(E) The method of distribution designated by
the Employee or the Beneficiary specifies the time at which distribution will
commence, the period over which distribution will be made, and in the case of
any distribution upon the Employee's death, the Beneficiaries of the Employee
listed in order of priority.
(ii) A distribution upon death will not be covered by this
transitional rule unless the information in the designation contains the
required information described above with respect to the distributions to be
made upon the death of the Employee.
(iii) For any distribution which commences before January
1, 1984, but continues after December 31, 1983, the Employee, or the
Beneficiary, to whom such distribution is being made, will be presumed to have
designated the method of distribution under which the distribution is being made
if the method of distribution was specified in writing and the distribution
satisfied the requirements in paragraphs (f) (i) (A) and (E) of this Section.
(iv) If a designation is revoked any subsequent
distribution must satisfy the requirements of Section 401(a)(9) of the Code and
the proposed regulations thereunder. If a designation is revoked subsequent to
the date distributions are required to begin, the trust must distribute by the
end of the calendar year following the calendar year in which the revocation
occurs the total amount not yet distributed which would have been required to
have been distributed to satisfy Section 401(a)(9) of the Code and the proposed
regulations thereunder, but for the Section 242(b)(2) election. For calendar
years beginning after December 31, 1988, such distributions must meet the
minimum distribution incidental benefit requirements in Section 1.401(a)(9)-2 of
the proposed regulations. Any changes in the designation will be considered to
be a revocation of the designation. However, the mere substitution or addition
of another Beneficiary (one not named in the
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designation) under the designation will not be considered to be a revocation of
the designation, so long as such substitution or addition does not alter the
period over which distributions are to be made under the designation, directly
or indirectly (for example, by altering the relevant measuring life). In the
case in which an amount is transferred or rolled over from one Plan to another
Plan, the rules in Q&A J-2 and Q&A J-3 shall apply.
6.10 DISTRIBUTION OR TRANSFER OF ACCOUNTS ON PLAN TERMINATION AND OTHER
EVENTS:
(a) Subject to Section 6.8, and Section 6.7 (for any
distributions or transfers on or after January 1, 1993), Participant's Accounts
shall be distributed to the Participant, the Participant's Beneficiary, or to
the Trustee or custodian of an eligible retirement plan (as defined in Section
402(a)(5)(E)(iv) of the Code, as soon as administratively feasible following:
(i) The termination of the Plan without the establishment
of another defined contribution plan, other than an employee stock ownership
plan (as defined in Section 4975(e) or Section 409 of the Code) or a simplified
employee pension plan (as defined in Section 408(k) of the Code.)
(ii) The disposition by the Employer to an unrelated
corporation of substantially all of the assets (within the meaning of Section
409(d)(2) of the Code) used in the trade or business of the Employer if the
Employer continues to maintain this Plan after the disposition, but only with
respect to employees who continue employment with the corporation acquiring such
assets.
(iii) The disposition by the Employer to an unrelated
entity of the Employer's interest in a subsidiary (within the meaning of Section
409(d)(3) of the Code), if the Employer continues to maintain this Plan, but
only with respect to employees who continue employment with such subsidiary.
(iv) Receipt of written instructions to transfer Accounts
from the Participant, the Participant's Beneficiary or the Employer, as the case
may be.
(b) All distributions that may be made pursuant to one or more of
the distributable events in (i) through (iii) in paragraph (a) above, are
subject to the Spousal and Participant consent requirements (if applicable)
contained in Sections 411(a)(11) and 417 of the Code. In addition, distributions
after March 31, 1988 that are triggered by items (i) through (iii) in paragraph
(a) above must be made in a lump sum.
6.11 DISTRIBUTION TO MINOR OR INCOMPETENT:
(a) In the event a distribution is to be made to a minor, the
Administrator may direct that such distribution be paid to the legal guardian,
or if none, to a parent of such Beneficiary or a responsible adult with whom the
Beneficiary resides, or to a custodian for such Beneficiary under the Uniform
Transfer to Minors Act, if permitted by the laws of the state in which the
Beneficiary resides. Payment to the legal guardian, parent or custodian of a
minor Beneficiary shall fully discharge the Trustee, Administrator and Plan from
further liability on account thereof.
(b) If a person who is entitled to receive payment under the Plan
is physically or mentally incapable of personally receiving and giving a valid
receipt for any payment due (unless a previous claim has been made by a duly
qualified conservator or other legal representative), the payment may be made to
the person's spouse, son, daughter, parent, brother, sister or other person
determined by the Administrator to have incurred expense for the person
otherwise entitled to payment. Distribution under this Section shall be in the
discretion of the Administrator, and the Administrator shall not be compelled to
make any distribution under this Section.
6.12 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN: If a Participant
who is entitled to a distribution cannot be located and the Administrator has
made reasonable efforts to locate the Participant, the Participant's interest
shall be forfeited and allocated with Employer Profit Sharing Contributions
pursuant to Section 4.3 for the Plan Year during which
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<PAGE> 46
the forfeiture occurs. The Administrator will be deemed to have made reasonable
efforts to locate the Participant if the Administrator is unable to locate the
Participant (or, in the case of a deceased Participant, his or her Beneficiary)
after having made two successive certified or similar mailings to the last
address on file with the Administrator. The Participant's Account(s) shall be
forfeited as of the last day of the Plan Year in which occurs the close of the
12 consecutive calendar month period following the last of the two successive
mailings. If the Participant or Beneficiary makes a written claim for the
Account(s) subsequent to the forfeiture, the Employer shall cause the Account(s)
to be reinstated.
6.13 HARDSHIP DISTRIBUTION:
(a) Subject to the limitations of subsection (d) below, the
Trustee shall, upon the direction of the Administrator, make a distribution from
a Participant's Salary Reduction Contributions Account, Employer Matching
Contributions Account or Rollover Contributions Account upon hardship of the
Participant. A Participant shall be entitled to a hardship distribution only if
the distribution is both (i) made on account of an immediate and heavy financial
need of the Participant, and (ii) is necessary to satisfy such financial need,
determined in accordance with objective, nondiscretionary standards established
by the Administrator.
(b) An immediate and heavy financial need shall be deemed to
include, the following:
(i) Expenses incurred or necessary for medical care
described in Section 213(d) of the Code for the Participant, his or her Spouse,
or any dependents of the Participant (as defined in Section 152 of the Code);
(ii) Cost (excluding mortgage payments) relating to the
purchase of a principal residence for the Participant;
(iii) Payment of tuition and related educational fees for
the next twelve months of post-secondary education for the Participant, his or
her Spouse, children, or dependents; or
(iv) The need to prevent the eviction of the Participant
from his or her principal residence or foreclosure on the mortgage of the
Participant's principal residence.
(c) A distribution will be considered as necessary to satisfy an
immediate and heavy financial need if the Administrator relies on the
Participant's representation that the need cannot be relieved:
(i) Through reimbursement or compensation by insurance or
otherwise;
(ii) By reasonable liquidation of the Participant's
assets, to the extent such liquidation would not itself increase the amount of
the need;
(iii) By cessation of Salary Reduction Contributions under
the Plan; or
(iv) By other distributions or loans from the Plan or any
other qualified retirement plan, or by borrowing from commercial sources on
reasonable commercial terms, to the extent such amounts would not themselves
increase the amount of the need.
(d) Aggregate hardship distributions to a Participant pursuant to
this Section shall not exceed aggregate Salary Reduction Contributions, Employer
Matching Contributions and Rollover Contributions allocated to the Participant's
Salary Reduction Contributions Account, Employer Matching Contributions Account
and Rollover Contributions Account; however, in the discretion of the
Administrator, on a non-discriminatory basis, aggregate hardship distributions
may include earnings accrued (i) in the Participant's Employer Matching
Contributions Account and Rollover Contributions Account, and (ii) prior to the
end of the last Plan Year ending before July 1, 1989 in the Participant's Salary
Reduction Contributions Account.
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6.14 LOANS:
(a) The Administrator may authorize a loan or loans to currently
employed Participants, or parties in interest (as defined in ERISA) of the Plan
who are Participants or Beneficiaries, provided that such loans:
(i) are available to all such Participants and
Beneficiaries on a reasonably equivalent basis;
(ii) are not made available to Highly Compensated
Employees, officers or shareholders in an amount greater than the amount made
available to other Employees;
(iii) bear a reasonable rate of interest;
(iv) are adequately secured; and
(v) no loan shall exceed the present value of the
Participant's or Beneficiary's vested accrued benefit.
(b) In the event of default, foreclosure on the note and
attachment of security will not occur until a distributable event occurs in the
Plan.
(c) All such loans shall be available to Participants and
Beneficiaries without regard to any individual's race, color, religion, sex, age
or national origin. All such loans shall further be subject to ERISA, the Code,
the regulations and rulings thereunder, and to such terms and conditions not
inconsistent therewith (and subject to this Section ) as the Administrator shall
determine pursuant to uniform policies and guidelines adopted by the
Administrator. Such policies and guidelines shall be in writing and (i) may be
amended by the Administrator from time to time (ii) shall be communicated to all
affected Participants and Beneficiaries, and (iii) shall be deemed a part of
this Plan.
6.15 WITHDRAWALS AT AGE 59 1/2: A Participant may withdraw all or a part
of the Participant's Salary Reduction Contributions Account, Qualified Matching
Contributions Account, Employer Matching Contributions Account, Qualified
Nonelective Contributions Account, Rollover Account, and the vested portion of
his or her Employer Profit Sharing Contributions Account, at any time subsequent
to attainment of age 59 1/2; provided that the Administrator may impose uniform
and nondiscriminatory procedures and limitations on Participants' withdrawal
rights under this Section 6.15, which procedures and limitations shall be
communicated to Participants from time to time.
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VII TRANSFER OF QUARTERLY PLAN ACCOUNTS
7.1 APPLICABILITY. The provisions of this Article shall be applicable to
the outstanding accounts maintained for each Participant under the Quarterly
Plan at the time of its conversion into a cash only profit sharing plan. All the
individual accounts maintained for a Participant under the Quarterly Plan have
been consolidated into one account and this consolidated account, less the
previously unwithdrawn balance of the Participant's voluntary contributions to
the Quarterly Plan (which has been distributed to the Participant in the form of
a cash payment), has been transferred to this Plan and is maintained as a
separate account for such Participant. This account has been designated the
Participant's Quarterly Plan Account, and the investment, distribution and
withdrawal rights of the Participant with respect to his or her Quarterly Plan
Account shall be governed by the specific provisions of this Article.
7.2 INVESTMENT.
(a) The Quarterly Plan Account of each Participant shall be
invested in accordance with the provisions of Sections 10.3 and 10.6 of the
Plan.
(b) The Participant may no longer direct the investment of his or
her Quarterly Plan Account in shares of Plantronics, Inc. common stock. However,
any Plantronics, Inc. common stock held in the Participant's Quarterly Plan
Account at the time of its transfer to this Plan in accordance with Section 7.1
shall be retained until such time as the Participant notifies the Administrator
in writing, on such form and in such manner as may be determined by the
Administrator, that he or she elects to have the shares of Plantronics, Inc.
common stock held in his or her Quarterly Plan Account sold and the proceeds
reinvested in accordance with the investment election in effect for the
Participant at that time under Section 10.6.
7.3 VESTING. The Participant shall at all times have a fully-vested and
non-forfeitable right to his or her Quarterly Plan Account.
7.4 WITHDRAWALS.
(a) Should a Participant establish to the satisfaction of the
Administrator that a withdrawal from his or her Quarterly Plan Account is
required to meet an unusual or special situation in his or her financial
affairs, then the Administrator may, in accordance with a uniform and
non-discriminatory policy, direct the Trustee to permit the Participant to
withdraw all or any part of the balance then credited to the Participant's
Quarterly Plan Account. The decision of the Administrator shall specify the
maximum withdrawal permitted, if any, and shall be final and binding on all
interested persons.
(b) Any Participant wishing to make a withdrawal pursuant to
Section (a) above shall file a written request for withdrawal with the
Administrator on the form prescribed for such purpose by the Administrator. The
withdrawal request shall be granted only if the Administrator determines that
the conditions for the withdrawal have been satisfied. All approved withdrawals
shall be effected in the form of a lump sum distribution.
7.5 DISTRIBUTION. The Participant's Quarterly Plan Account shall, to the
extent not previously withdrawn under Section 7.4, be distributed to the
Participant or his or her Beneficiary at such time and in such manner following
the Employee's Severance from Service as is provided in Sections 6.6 - 6.8 for
the distribution of all the other Accounts maintained for the Participant under
the Plan.
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VIII SALE OF THE ASSETS OF PLANTRONICS FUTURECOMMS, INC. AND FREDERICK
ELECTRONICS CORPORATION
8.1 CONTROLLING PROVISIONS. The provisions of this Article shall govern
the rights and benefits to which those Members who are or were Employees of
Plantronics Futurecomms, Inc. ("PFI") and Frederick Electronics Corporation
("FEC") are Participants under the Plan. To the extent the provisions of this
Article conflict or are otherwise in variance with any other terms and
provisions of the Plan, the express provisions of this Article shall be
controlling.
8.2 CESSATION OF QUALIFIED PARTICIPANT STATUS. Effective as of June 26,
1992, each Participant who is or was an Employee of PFI or FEC as of such date
shall cease to be a Qualified Participant for purposes of the Salary Reduction
Contributions made to the Plan pursuant to the provisions of Section 4.1.
Accordingly, any Salary Reduction Contribution election in effect for such
Participant under Section 4.1 shall terminate and cease to be effective as of
June 26, 1992, or such other date as specified by the Board of Directors of
Plantronics, Inc., and no further Salary Reduction Contributions shall be
allocated to the Salary Reduction Contributions Account of such Participant .
Employer Matching Contributions shall be made for each Participant on all Salary
Reduction Contributions made until termination of his or her Salary Reduction
Contribution election pursuant to this Section.
8.3 VESTING AND FORFEITURE. Each Participant who is or was an Employee
of PFI or FEC as of June 26, 1992 shall, effective as of such date, become 100%
vested in the unvested portion of his or her Employer Profit Sharing
Contribution Account, if any, including (without limitation) the portion of the
Employer Profit Sharing Contribution and forfeitures allocated to such Account
for the Plan Year ending March 28, 1992.
8.4 TRANSFER OF ACCOUNTS.
(a) The Accounts of each Participant who is or was an Employee of
PFI or FEC as of June 26, 1992 shall be transferred directly to the trustee of
the qualified retirement plan maintained by SFA, Inc. and/or SFA/Datacomms, Inc.
as soon as feasible following June 26, 1992.
(b) Until such time as the Accounts of such Participant are
transferred in accordance with this Section, the Accounts shall continue to
share in the earnings, gains and losses of the Trust Fund. The allocation of
such investment experience to the Accounts shall be made in accordance with the
provisions of Section 5.3.
(c) Should the Participant die prior to completion of the
transfer pursuant to paragraph (a) above, his or her Accounts, or any portion
remaining, shall be distributed to his or her Beneficiary in accordance with
Section 6.4.
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IX ADMINISTRATION
9.1 POWERS OF THE ADMINISTRATOR:
(a) The Administrator shall file all reports and distribute to
Participants and Beneficiaries reports and other information required under
ERISA.
(b) The Administrator shall be responsible for the general
administration and interpretation of the Plan and for carrying out its
provisions and shall have such powers as may be necessary to discharge its
duties hereunder, including, but not by way of limitation, the following powers
and duties:
(i) Discretionary authority to construe and interpret the
terms of the Plan, and to determine eligibility and the amount, manner and time
of payment of any benefits hereunder;
(ii) To prescribe procedures to be followed by Employees
in filing applications for benefits;
(iii) To make a determination as to the right of any
person to a benefit and to afford any person dissatisfied with such
determination the right to a hearing;
(iv) To request and receive from Employees such
information as necessary for the proper administration of the Plan, including
but not limited to, such information as the Administrator may reasonably require
to determine each Participant's eligibility to participate in the Plan and the
benefits payable to each Participant upon his or her death, Retirement or
termination of employment;
(v) To prepare and distribute, in such manner as it
determines to be appropriate, information explaining the Plan;
(vi) To direct the Trustee as to the method in which and
persons to whom Plan assets will be distributed.
(c) The Administrator may adopt such rules, regulations and
bylaws and may make such decisions as it deems necessary or desirable for the
proper administration of the Plan, and all rules and decisions of the
Administrator shall be uniformly and consistently applied to all Participants in
similar circumstances. Any rule or decision that is not inconsistent with the
provisions of the Plan shall be conclusive and binding upon all persons affected
by it, and there shall be no appeal from any ruling by the Administrator that is
within its authority, except as otherwise provided herein. When making a
determination or calculation, the Administrator shall be entitled to rely upon
information furnished by the Employer or anyone acting on behalf of the
Employer.
(d) The Administrator shall have the power to (i) establish a
funding policy; (ii) select alternative investment funds; (iii) receive and
review reports on the financial condition of the Trust Fund and statements of
the receipts and disbursements of the Trust Fund from the Trustee; and (iv)
appoint or employ one or more Investment Managers (as defined in Section 3(38)
of the Act) to manage any part or all of the assets of the Plan for which the
Administrator has investment discretion.
(e) The Administrator may appoint one or more persons to act as a
Plan committee to discharge the duties of the Administrator under the Plan. A
person shall not be ineligible to be a member of the committee because he or she
is or may be a Participant in the Plan. The Employer from time to time may
increase or decrease the number of members of the committee. The committee and
each of its members shall be named fiduciaries with respect to the Plan, and
shall be indemnified by the Employer against any and all liabilities incurred by
reason of any action taken in good faith pursuant to the provisions of the Plan.
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9.2 DOMESTIC RELATIONS ORDERS:
(a) If the Trustee or the Administrator receives a domestic
relations order that purports to require the payment of a Participant's benefits
to a person other than the Participant, the Administrator shall take the
following steps:
(i) If benefits are in pay status, the Administrator shall
direct the Trustee to segregate and hold in a Determination Period Account the
amounts that will be payable to the Alternate Payees with respect to the
Determination Period if the order is a Qualified Domestic Relations Order.
(ii) The Administrator shall promptly notify the named
Participant and any Alternate Payees of the receipt of the domestic relations
order and of the Administrator's procedures for determining if the order is a
Qualified Domestic Relations Order.
(iii) The Administrator shall determine whether the order
is a Qualified Domestic Relations Order under the provisions of Section 414(p)
of the Code.
(iv) The Administrator shall notify the named Participant
and any Alternate Payees of its determination as to whether the order meets the
requirements of a Qualified Domestic Relations Order.
(b) If, within 18 months of receipt of the domestic relations
order, the order is determined to be a Qualified Domestic Relations Order, the
Administrator shall direct the Trustee to pay the Determination Period Account
to the persons entitled to receive the Account pursuant to the order.
(c) If, within 18 months of receipt of the domestic relations
order, (i) the order is determined not to be a Qualified Domestic Relations
Order or (ii) the issue as to whether the order is a Qualified Domestic
Relations Order has not been resolved, the Administrator shall direct the
Trustee to pay the amounts held in the Determination Period Account to the
Participant or other person who would have been entitled to such amounts if
there had been no order.
(d) If an order is determined to be a Qualified Domestic
Relations Order after the end of the 18-month period, the determination shall be
applied prospectively only.
(e) For purposes of this Section, the following definitions
shall apply:
(i) Alternate Payee: Any spouse, former spouse, child or
other dependent of a Participant who is recognized by a domestic relations order
as having a right to all or a portion of the benefits payable under the Plan to
the Participant.
(ii) Determination Period: The period of up to 18 months
during which the Administrator shall determine the qualified status of a
domestic relations order.
(iii) Determination Period Account: A segregated account
established by the Trustee at the direction of the Administrator, in which
amounts which may be payable to an Alternate Payee shall be held. A
Determination Period Account shall be held in an interest-bearing account and
credited with earnings of that account.
(iv) Qualified Domestic Relations Order: Any domestic
relations order or judgment that meets the requirements set forth in Section
414(p) of the Code.
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X LEAVES OF ABSENCE AND TRANSFERS
10.1 MILITARY LEAVE OF ABSENCE: So long as the Uniformed Services
Employment and Reemployment Rights Act of 1994, or any similar law, shall remain
in force, providing for re-employment rights for all persons in military
service, as therein defined, an Employee who leaves the employment of the
Employer for military service in the Armed Forces of the United States, as
defined in such Act from time to time in force, shall, for all purposes of this
Plan, be considered as having been in the employment of the Employer, with the
time of the Participant's service in the military credited to his or her service
under the Plan; provided that upon such Employee being discharged from the
military service of the United States the Employee applies for reemployment with
the Employer and takes all other necessary action to be entitled to, and to be
otherwise eligible for, re-employment rights, as provided by the Uniformed
Services Employment and Reemployment Rights Act of 1994, or any similar law from
time to time in force.
10.2 OTHER LEAVES OF ABSENCE: For all purposes of this Plan, an Employee
on an Employer-approved leave of absence not described in Section 10.1 above
shall be considered as having continued in the employment of the Employer for
the period of such leave, provided that the Employee returns to the active
employment of the Employer before or at the expiration of such leave. Such
approved leaves of absence shall be given on a uniform, non-discriminatory basis
in similar fact situations.
10.3 TRANSFERS:
(a) In the event that:
(i) a Participant is transferred to employment with a
member of the Controlled Group which has not adopted the Plan or to employment
with the Employer in a status other than as an Employee; or
(ii) a person is transferred from employment with a member
of the Controlled Group which has not adopted the Plan or from other employment
with the Employer in a status other than Employee to employment with the
Employer under circumstances making such person an Employee; or
(iii) a person was employed by a member of the Controlled
Group which has not adopted the Plan, terminated his or her employment and was
subsequently employed by the Employer as an Employee;
(b) then the following provisions shall apply:
(i) transfer to employment (A) with a member of the
Controlled Group which has not adopted the Plan or (B) with the Employer not as
an Employee, shall not be considered termination of employment with the
Employer, and such transferred person shall continue to be entitled to the
benefits provided in the Plan, as modified by this Section;
(ii) any employment with a member of the Controlled Group
which has not adopted the Plan or with the Employer not as an Employee will be
deemed to be employment by the Employer;
(iii) no amounts earned from a member of the Controlled
Group at a time when it has not adopted the Plan or from the Employer not as an
Employee shall constitute Compensation hereunder;
(iv) termination of employment with a member of the
Controlled Group which has not adopted the Plan by a person entitled to benefits
under this Plan (other than to transfer to employment with the Company or
another member of the Controlled Group) shall be considered as termination of
employment with the Employer;
(v) all other terms and provisions of this Plan shall
fully apply to such person and to any benefits to which he or she may be
entitled hereunder.
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XI TRUST PROVISIONS
Contributions made to the Plan and all other Plan assets shall be held
in trust under a Trust Agreement entered into between the Company and the
Trustee. Such Trust Agreement shall be incorporated herein by reference and
shall be considered a part of the Plan.
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XII FEES AND EXPENSES
12.1 EXPENSES PAID BY PARTICIPATING EMPLOYERS: Not less than 50% of the
reasonable fees and expenses of the Administrator or the Trustee incurred in the
performance of their duties hereunder or under the Trust shall be paid by the
Participating Employers out of their respective general assets, in such
proportion as the Board of Directors of Plantronics, Inc. shall determine.
Participating Employers may, in their discretion, decide to pay more than 50% of
such fees and expenses for one or more Plan Years, but any such determination
shall be effective only for the Plan Year or Years for which it is made and
shall not be binding on the Participating Employers with respect to any other
Plan Years.
12.2 ADDITIONAL EXPENSES: Any fees and expenses not paid by the
Participating Employers under Section 12.1 above shall be borne by the Plan and
shall accordingly be deducted from the aggregate Employer Profit Sharing
Contributions allocable for such Plan Year to Participants' Accounts in
accordance with Section 4.3.
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XIII NECESSITY OF QUALIFICATION
This Plan is established with the intent that it shall qualify under
Section 401(a) of the Code as that Section exists at the time the Plan is
established. If the Plan as adopted by the Employer fails to attain or retain
such qualification, the Employer shall promptly either amend the Plan under
Section 401(b) of the Code so that it does qualify, or direct the Trustee to
terminate the Trust, and distribute all the assets of the Trust, and the Plan
and Trust shall be considered to be rescinded and of no force and effect.
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XIV AMENDMENT, TERMINATION OR MERGER
14.1 AMENDMENT OR TERMINATION: The Employer may amend, suspend or
terminate this Plan at any time by resolution adopted by a majority of its Board
of Directors (if a partnership, by a majority of its partners, or, if a sole
proprietorship, by the sole proprietor). The form of any proper amendment of the
Plan shall be a written instrument signed by a duly authorized officer of the
Employer (if a partnership, by a duly authorized partner, or if a sole
proprietorship, by the sole proprietor). The Employer shall give written notice
of any such action to the Trustee, but the Trust may not thereby be diverted
from the exclusive benefit of the Participants, their Beneficiaries, survivors
or estates, or the administrative expenses of the Plan, nor revert to the
Employer, nor may an allocation or contribution theretofore made be changed
thereby, nor may any amendment directly or indirectly deprive a Participant of
such Participant's rights to benefits. No amendment to the Plan shall be
effective to the extent that it would have the effect of decreasing any
Participant's Accounts or would otherwise violate Section 411(d)(6) of the Code.
14.2 TERMINATION OF PLAN: The Upon termination or partial termination of
the Plan or complete discontinuance of Employer Contributions under it, the
Accounts of each affected Participant will be nonforfeitable. The Administrator
shall distribute each Participant's Accounts to the Participant pursuant to
Sections 6.6 - 6.8 as soon as is practicable after the termination.
14.3 MERGER: Nothing contained herein shall prevent the merger or
consolidation of the Plan with, or transfer of assets or liabilities of the Plan
to, another plan meeting the requirements of Section 401(a) of the Code or the
transfer to the Plan of assets or liabilities of another such plan so qualified
under the Code. Any such merger, consolidation or transfer shall be accompanied
by the transfer of such existing records and information as may be necessary to
properly allocate such assets among Participants, including any tax or other
information necessary for the Participants or persons administering the plan
which is receiving the assets. The terms of such merger, consolidation or
transfer must be such that (if this Plan had then terminated), the requirements
of Section 14.1 hereof would be satisfied and each Participant would receive a
benefit immediately after the merger, consolidation or transfer equal to or
greater than the benefit he or she would have received if the Plan had
terminated immediately before the merger, consolidation or transfer.
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XV ADOPTION OF PLAN BY RELATED ENTITIES
15.1 ADOPTION OF THE PLAN: An entity which is a member of the Controlled
Group may adopt the Plan for its Employees with the approval of the Company. An
entity that becomes a party to the Plan pursuant to this Section shall promptly
deliver to the Trustee a certified copy of the resolutions or other documents
evidencing its adoption of the Plan.
15.2 WITHDRAWAL: A entity which adopts the Plan pursuant to Section 15.1
may withdraw from the Plan at any time by giving advance notice in writing of
its intention to withdraw to the Company and to the Plan Committee. Upon the
receipt of notice of any such withdrawal, the Plan Committee shall certify to
the Trustee the equitable share of the withdrawing entity in the Trust Fund, and
the Trustee shall thereupon set aside from the Trust Fund such securities and
other property as it shall, in its sole discretion, deem to be equal in value to
the entity's equitable share. If the Plan is to be terminated with respect to
the entity, the amount set aside shall be administered according to Article XI.
If the Plan is not to be terminated with respect to the entity, the Trustee
shall turn over the entity's equitable share to a trustee designated by the
entity, and the securities and other property shall thereafter be held and
invested as a separate trust of the entity and shall be used and applied
according to the terms of a new trust agreement between the entity and the
trustee so designated. Neither the segregation of the Trust Fund assets upon the
withdrawal of an entity nor the execution of a new trust agreement shall operate
to permit any part of the corpus or income of the Trust Fund to be used for or
diverted to purposes other than for the exclusive benefit of Participants,
former Participants and Beneficiaries.
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XVI CLAIMS PROCEDURE
16.1 RIGHT TO FILE CLAIM: Every Participant or Beneficiary of a
Participant shall be entitled to file with the Administrator a claim for
benefits under the Plan. The claim must be in writing.
16.2 DENIAL OF CLAIM: If the claim is denied by the Administrator, in
whole or in part, the claimant shall be furnished within 90 days after the
Administrator's receipt of the claim (or within 180 days after such receipt if
special circumstances require an extension of time) a written notice of denial
of claim containing the following:
(a) Specific reason or reasons for denial;
(b) Specific reference to pertinent Plan provisions on which the
denial is based;
(c) A description of any additional material or information
necessary for the claimant to perfect the claim, and an explanation of why the
material or information is necessary; and
(d) An explanation of the claims review procedure.
16.3 CLAIMS REVIEW PROCEDURE:
(a) Review may be requested at any time within 90 days following
the date the claimant received written notice of the denial of his or her claim.
For purposes of this Section , any action required or authorized to be taken by
the claimant may be taken by a representative authorized in writing by the
claimant to represent him or her. The Administrator shall afford the claimant a
full and fair review of the decision denying the claim and, if so requested,
shall:
(i) Permit the claimant to review any documents that are
pertinent to the claim;
(ii) Permit the claimant to submit to the Administrator
issues and comments in writing; and
(iii) Afford the claimant an opportunity to meet with a
representative of the Administrator as a part of the review procedure.
(b) The decision on review by the Administrator shall be in
writing and shall be issued within 60 days following receipt of the request for
review. The period for decision may be extended to a date not later than 120
days after such receipt if the Administrator determines that special
circumstances require extension. The decision on review shall include specific
reasons for the decision and specific references to the pertinent Plan
provisions on which the decision of the Administrator is based.
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XVII TOP-HEAVY PROVISIONS
17.1 PURPOSE: This Article is intended to insure that the Plan complies
with Section 416 of the Code. If the Plan is or becomes Top-Heavy in any Plan
Year beginning after December 31, 1983, the provisions of this Section will
supersede any conflicting provision in the Plan.
17.2 DEFINITIONS: For purposes of this Article, the following
definitions shall apply:
(a) Determination Date: For any Plan year subsequent to the first
Plan Year, the last day of the preceding Plan Year. For the first Plan Year of
the Plan, the last day of that Year.
(b) Key Employee: Any Employee or former Employee (and the
beneficiaries of such Employee) who at any time during the determination period
was (i) an officer of the Employer if such individual's annual Section 415
Compensation exceeds 50% of the dollar limitation in effect under Section
415(b)(1)(A) of the Code, (ii) an owner (or considered an owner under Section
318 of the Code) of one of the ten largest interests in the Employer if such
individual's Section 415 Compensation exceeds 100% of the dollar limitation in
effect under Section 415(c)(1)(A) of the Code, (iii) a 5% owner of the Employer,
or (iv) a 1% owner of the Employer who has an annual Section 415 Compensation of
more than $150,000. For purposes of this Section , the determination of Section
415 Compensation shall be based only on Section 415 Compensation which is
actually paid and shall be made by including amounts contributed by the Employer
pursuant to a salary reduction agreement which are excludable from the
Employee's gross income under Section 125, Section 402(e)(3), Section 402(h) or
Section 403(b) of the Code. The determination period is the Plan Year containing
the Determination Date and the four preceding Plan Years. Determination of who
is a Key Employee will be made in accordance with Section 416(i)(1) of the Code
and the regulations thereunder.
(c) Non-Key Employee: Any Employee who is not a Key Employee,
including Employees who are former Key Employees.
(d) Permissive Aggregation Group: The Required Aggregation Group
of plans plus any other plan or plans of the Employer which, when considered as
a group with the Required Aggregation Group, would continue to satisfy the
requirements of Sections 401(a)(4) and 410 of the Code.
(e) Required Aggregation Group: (1) Each qualified plan of the
Employer in which at least one Key Employee participates or participated at any
time during the determination period (regardless of whether the plan has
terminated), and (2) any other qualified plan of the Employer which enables a
plan described in (1) to meet the requirements of Sections 401(a)(4) or 410 of
the Code.
(f) Top-Heavy Plan: This Plan is Top-Heavy if for any Plan Year
any of the following conditions exists:
(i) If the Top-Heavy Ratio for this Plan exceeds 60% and
this Plan is not part of any Required Aggregation Group or Permissive
Aggregation Group of plans.
(ii) If this Plan is a part of a Required Aggregation
Group of plans but not part of a Permissive Aggregation Group and the Top-Heavy
Ratio for the Permissive Aggregation Group exceeds 60%.
(iii) If this Plan is a part of a Required Aggregation
Group and part of a Permissive Aggregation Group of plans and the Top-Heavy
Ratio for the Permissive Aggregation Group exceeds 60%.
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<PAGE> 60
(g) Top-Heavy Ratio:
(i) If the Employer maintains one or more defined
contribution plans (including any simplified employee pension plan) and the
Employer has not maintained any defined benefit plan which during the 5-year
period ending on the Determination Date(s) has or has had accrued benefits, the
Top-Heavy Ratio for this Plan alone or for the Required or Permissive
Aggregation Group as appropriate is a fraction, the numerator of which is the
sum of the Account balances of all Key Employees as of the Determination Date(s)
(including any part of any Account balance distributed in the 5-year period
ending on the Determination Date(s)), and the denominator of which is the sum of
Account balances (including any part of any Account balance distributed in the
5-year period ending on the Determination Date(s)), both computed in accordance
with Section 416 of the Code and the regulations thereunder. Both the numerator
and denominator of the Top-Heavy Ratio are increased to reflect any contribution
not actually made as of the Determination Date, but which is required to be
taken into account on that date under Section 416 of the Code and the
regulations thereunder.
(ii) If the Employer maintains one or more defined
contribution plans (including any simplified employee pension plan) and the
Employer maintains or has maintained one or more defined benefit plans which
during the 5-year period ending on the Determination Date(s) has or has had any
accrued benefits, the Top-Heavy Ratio for any Required or Permissive Aggregation
Group as appropriate is a fraction, the numerator of which is the sum of Account
balances under the aggregated defined contribution plan or plans for all Key
Employees, determined in accordance with (i) above, and the present value of
accrued benefits under the aggregated defined benefit plan or plans for all Key
Employees as of the Determination Date(s), and the denominator of which is the
sum of Account balances under the aggregated defined contribution plan or plans
for all participants, determined in accordance with (i) above, and the present
value of accrued benefits under the defined benefit plan or plans for all
participants as of the Determination Date(s), all determined in accordance with
Section 416 of the Code and the regulations thereunder. The accrued benefits
under a defined benefit plan in both the numerator and denominator of the
Top-Heavy Ratio are increased for any distribution of an accrued benefit made in
the five-year period ending on the Determination Date.
(iii) For purposes of (i) and (ii) above the value of
Account balances and the present value of accrued benefits will be determined as
of the most recent Valuation Date that falls within or ends with the 12-month
period ending on the Determination Date, except as provided in Section 416 of
the Code and the regulations thereunder for the first and second plan years of a
defined benefit plan. The Account balances and accrued benefits of a participant
(1) who is not a Key Employee but who was a Key Employee in a prior year, or (2)
who has not been credited with at least one Hour of Service with any Employer
maintaining the Plan at any time during the 5-year period ending on the
Determination Date will be disregarded. The calculation of the Top-Heavy Ratio,
and the extent to which distributions, rollovers, and transfers are taken into
account will be made in accordance with Section 416 of the Code and the
regulations thereunder. Deductible employee contributions will not be taken into
account for purposes of computing the Top-Heavy Ratio. When aggregating plans
the value of Account balances and accrued benefits will be calculated with
reference to the Determination Dates that fall within the same calendar year.
The accrued benefit of a Participant other than a
Key Employee shall be determined under (1) the method, if any, that uniformly
applies for accrual purposes under all defined benefit plans maintained by the
Employer, or (2) if there is no such method, as if such benefit accrued not more
rapidly than the slowest accrual rate permitted under the fractional rule of
Section 411(b)(1)(C) of the Code.
(h) Valuation Date: The Plan Year-End as of which Account
balances or accrued benefits are valued for purposes of calculating the
Top-Heavy Ratio.
17.3 MINIMUM ALLOCATION:
(a) Except as otherwise provided in paragraphs (b) and (c) below,
in any Plan Year in which this Plan is Top-Heavy, Employer Profit Sharing
Contributions and forfeitures allocated to the Accounts of each Participant who
is a Non-Key Employee, shall be not less than the lesser of (i) 3% of the
Non-Key Employee's Section 415 Compensation, or
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<PAGE> 61
(ii) in the case where the Employer has no defined benefit plan which designates
this Plan to satisfy Section 401 of the Code, the largest percentage of
Contributions and forfeitures (if applicable), as a percentage of the first
$150,000 of Section 415 Compensation, allocated on behalf of any Key Employee
for that Plan Year. The minimum allocation shall be determined without regard to
any Social Security contribution. This minimum contribution shall be made even
though, under other provisions of this Plan, the Participant would not otherwise
be entitled to receive an allocation or would have received a lesser allocation
for the Plan Year because of (i) the Participant's failure to complete 1,000
Hours of Service (or any equivalent provided in the Plan), (ii) the
Participant's failure to make mandatory Employee contributions to the Plan, or
(iii) Compensation less than a stated amount.
(b) The provisions in paragraph (a) above shall not apply to any
Participant who was not employed by the Employer on the last day of the Plan
Year.
(c) The provisions in paragraph (a) above shall not apply to any
Participant to the extent the Participant is covered under any other plan(s) of
the Employer and the Employer has provided in those plan(s) that the minimum
allocation or benefit requirement applicable to top-heavy plans will be met in
the other plan(s).
(d) The minimum allocation required (to the extent required to be
nonforfeitable under Section 416(b)) may not be forfeited under Section
411(a)(3)(B) or 411(a)(3)(D) of the Code.
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<PAGE> 62
XVIII MISCELLANEOUS
18.1 LEGAL OR EQUITABLE ACTION: If any legal or equitable action with
respect to the Plan is brought by or maintained against any person, and the
results of such action are adverse to that person, attorney's fees and all other
costs to the Employer, the Administrator or the Trust of defending or bringing
such action shall be charged against the interest, if any, of such person under
the Plan.
18.2 INDEMNIFICATION: The Employer indemnifies and holds harmless the
Plan Administrator, all members of the Plan committee, if any, and the Trustee
from and against any and all liabilities, demands, claims, losses, taxes,
expenses, including reasonable attorney's fees, both direct and indirect,
arising by reason of any act or omission to act (except willful misconduct or
gross negligence) in their official capacities in the administration of this
Plan or Trust or both, including all expenses reasonably incurred in their
defense, if the Employer fails to provide such defense. The indemnification
provisions of this Section shall not relieve the Plan Administrator, any member
of the Plan committee or any Trustee from any liability such person may have
under the Act for breach of a fiduciary duty.
18.3 NO ENLARGEMENT OF PLAN RIGHTS: It is a condition of the Plan, and
each Participant by participating herein expressly agrees, that he or she shall
look solely to the assets of the Trust for the payment of any benefit under the
Plan.
18.4 NO ENLARGEMENT OF EMPLOYMENT RIGHTS: Nothing appearing in or done
pursuant to the Plan shall be construed (a) to give any person a legal or
equitable right or interest in the assets of the Trust or distribution
therefrom, nor against the Employer, except as expressly provided herein or (b)
to create or modify any contract of employment between the Employer and any
Employee or to obligate the Employer to continue the services of any Employee.
18.5 WRITTEN ORDERS: In taking or omitting to take any action under this
Plan, the Trustee may conclusively rely upon and shall be protected in acting
upon any written orders from or determinations by the Employer or the
Administrator as appropriate, or upon any other notices, requests, consents,
certificates or other instruments or papers believed by it to be genuine and to
have been properly executed, and so long as it acts in good faith, in taking or
omitting to take any other action.
18.6 NO RELEASE FROM LIABILITY: Nothing in the Plan shall relieve any
person from liability for any responsibility under Part 4 of Title I of the Act.
Subject thereto, neither the Trustee or the Administrator nor any other person
shall have any liability under the Plan, except as a result of negligence or
wilful misconduct, and in any event the Employer shall fully indemnify and save
harmless all persons from any liability except that resulting from their
negligence or wilful misconduct.
18.7 DISCRETIONARY ACTIONS: Any discretionary action, including the
granting of a loan pursuant to Section 6.14 hereof, to be taken by the
Administrator under this Plan shall be non-discriminatory in nature and all
Employees similarly situated shall be treated in a uniform manner.
18.8 HEADINGS: Headings herein are primarily for convenience of
reference, and if they conflict with the text, the text shall control.
18.9 APPLICABLE LAW: This Plan shall, to the extent state law is
applicable, be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the laws of the state in which (a) if the Trustee
is a corporation, the Trustee has its principal place of business; (b) if the
Trustee is an individual, the Trustee resides; or (c) if the Trustee is more
than one individual, where a majority of the individuals serving as Trustee
reside.
18.10 NON-ALIENATION OF BENEFITS: No amount payable to or held under the
Plan for the account of any Participant or Beneficiary of a Participant shall be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, or charge, and any attempt to so anticipate, alienate,
sell, transfer, assign, pledge, encumber or charge the same shall be void. No
amount payable to or held under the Plan for the account of any Participant or
Beneficiary may
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<PAGE> 63
be in any manner liable for the Participant's or Beneficiary's debts, contracts,
liabilities, engagements or torts, or be subject to any legal process, levy or
attachment. The provisions of this Section shall not preclude distributions made
by the Trustee in accordance with a Qualified Domestic Relations Order.
18.11 NO REVERSION: Notwithstanding any other contrary provision of the
Plan, no part of the assets in the Trust shall revert to the Employer, and no
part of such assets, other than that amount required to pay taxes or
administrative expenses, shall be used for any purpose other than exclusive
benefit of Employees or their Beneficiaries. However, the Employer may request a
return, and this Section shall not prohibit return, of an amount to the Employer
under any of the following circumstances:
(a) If the amount was all or part of an Employer Contribution
which was made as a result of a mistake of fact and the amount contributed is
returned to the Employer within one year after the date on which the mistaken
payment of the contribution was made; or
(b) If the amount was all or part of an Employer Contribution
which was conditioned on deductibility under Section 404 of the Code and this
condition is not satisfied, and the amount is returned to the Employer within
one year after the date on which the deduction is disallowed; or
(c) If the amount was all or part of an Employer Contribution
which was conditioned on the initial qualification of the Plan under Section
401(a) of the Code, this condition is not satisfied, the Plan was submitted to
the Internal Revenue Service for qualification by the time prescribed by law for
filing the Employer's return for the taxable year in which the Plan was adopted,
or such later date as the Secretary of the Treasury may prescribe, and the
amount is returned to the Employer within one year after the date on which
initial qualification is denied.
For purposes of this Section, all Employer Contributions are
conditioned on initial qualification of the Plan under Section 401(a) of the
Code and deductibility under Section 404 of the Code.
18.12 NOTICES: The Employer will provide the notice to other interested
parties contemplated under Section 7476 of the Code before requesting a
determination by the Secretary of the Treasury or his or her delegate with
respect to the qualification of the Plan.
18.13 CONFLICT: In the event of any conflict between the provisions of this
Plan and the terms of any contract or agreement issued thereunder or with
respect thereto, the provisions of the Plan shall control.
Dated: March 28, 1995 PLANTRONICS, INC.
By: ____________________________
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<PAGE> 64
SCHEDULE A
PLANTRONICS, INC.
ANNUAL PROFIT SHARING/INDIVIDUAL SAVINGS PLAN
PARTICIPATING EMPLOYERS
As of January 1, 1995:
1. Plantronics, Inc.
2. Walker Equipment Corporation
<PAGE> 1
Exhibit 4.2
AMENDMENT NUMBER ONE
TO THE
PLANTRONICS, INC.
ANNUAL PROFIT SHARING/INDIVIDUAL SAVINGS PLAN
AS RESTATED EFFECTIVE JULY 2, 1989
The Plantronics, Inc. Annual Profit Sharing/Individual Savings Plan
(the "Plan") is amended as follows, effective as of January 1, 1997.
FIRST: Section 6.8 (a) of the Plan is amended by adding the following
thereto:
"Any Company stock held in a Participant's Account shall be
liquidated and the cash equivalent distributed."
SECOND: Section 6.13(a) of the Plan shall read in its entirety as
follows:
"Subject to the limitations of subsection (d) below, the Trustee shall,
upon the direction of the Administrator, make a distribution from a
Participant's Salary Reduction Contributions Account, Employer Matching
Contributions Account, Quarterly Plan Account or Rollover Contributions Account
upon hardship of the Participant. A Participant shall be entitled to a hardship
distribution only if the distribution is both (i) made on account of an
immediate and heavy financial need of the Participant, and (ii) is necessary to
satisfy such financial need, determined in accordance with objective,
nondiscretionary standards established by the Administrator."
THIRD: Section 6.15 of the Plan shall read in its entirety as follows:
"A Participant may withdraw all or a part of the Participant's Salary
Reduction Contributions Account, Qualified Matching Contributions Account,
Employer Matching Contributions Account, Qualified Nonelective Contributions
Account, Rollover Account, Quarterly Plan Account and the vested portion of his
or her Employer Profit Sharing Contributions Account, at any time subsequent to
attainment of age 59 1/2; provided that the Administrator may impose uniform and
nondiscriminatory procedures and limitations on Participants' withdrawal rights
under this Section 6.15, which procedures and limitations shall be communicated
to Participants from time to time."
FOURTH: Section 7.1 of the Plan shall read in its entirety as follows:
"The provisions of this Article shall be applicable to the outstanding
accounts maintained for each Participant under the Plantronics, Inc. Quarterly
Profit-Sharing Plan (also referred to as the "Quarterly Plan") at the time of
its conversion into a cash only profit sharing plan. All the individual accounts
maintained for a Participant under the Quarterly Plan have been consolidated
into one
<PAGE> 2
account and this consolidated account, less the previously unwithdrawn balance
of the Participant's voluntary contributions to the Quarterly Plan (which has
been distributed to the Participant in the form of a cash payment), has been
transferred to this Plan and is maintained as a separate account for such
Participant. This account has been designated the Participant's Quarterly Plan
Account, and the investment, distribution and withdrawal rights of the
Participant with respect to his or her Quarterly Plan Account shall be governed
by the specific provisions of this Article."
FIFTH: Section 7.2 of the Plan shall read in its entirety as follows:
"(a) The Quarterly Plan Account of each Participant shall be invested
in the same manner as all other Accounts under the Plan.
(b) The Participant may no longer direct the investment of his or her
Quarterly Plan Account in shares of Plantronics, Inc. common stock. However, any
Plantronics, Inc. common stock held in the Participant's Quarterly Plan Account
at the time of its transfer to this Plan in accordance with Section 7.1 shall be
retained until such time as the Participant notifies the Administrator in
writing, on such form and in such manner as may be determined by the
Administrator, that he or she elects to have the shares of Plantronics, Inc.
common stock held in his or her Quarterly Plan Account sold and the proceeds
reinvested in accordance with the investment election in effect for the
Participant."
Dated: _______________, 1996 PLANTRONICS, INC.
By:______________________________
<PAGE> 1
Exhibit 4.3
TRUST AGREEMENT
Establishing
the
PLANTRONICS, INC. ANNUAL PROFIT SHARING/INDIVIDUAL
SAVINGS PLAN TRUST
by and between
PLANTRONICS, INC.
and
CG Trust Company
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
Section 1. Establishment of Trust.............................................................................. 1
Section 2. General Duties of the Employer; Indemnification..................................................... 1
Section 3. General Duties of Trustee........................................................................... 2
Section 4. Power and Duties of Trustee with Respect to Trust Fund.............................................. 2
Section 5. Payment of Taxes.................................................................................... 3
Section 6. Disbursement of Trust Funds......................................................................... 3
Section 7. Expenses and Compensation of Trustee................................................................ 4
Section 8. Expenses of the Plan and Trust Fund................................................................. 4
Section 9. Accounts of the Trustee............................................................................. 4
Section 10. Resignation, Removal and Substitution of Trustee.................................................... 5
Section 11. Amendment and Termination of Trust.................................................................. 6
Section 12. Miscellaneous Provisions............................................................................ 6
Exhibit A Schedule of Trust Assets............................................................................ 8
</TABLE>
-i-
<PAGE> 3
THIS TRUST AGREEMENT, made this 1st day of December, 1992, by and
between Plantronics, Inc., a corporation organized and existing under the laws
of the State of Delaware (hereinafter called the "Employer"), and CG TRUST
COMPANY, a trust company organized under the laws of the State of Illinois with
its principal office and place of business in the City of Chicago, Illinois
(hereinafter called the "Trustee").
WITNESSETH:
WHEREAS, the Employer has established or adopted for its eligible
employees the Plantronics, Inc. Annual Profit Sharing/Individual Savings Plan
(hereinafter called the "Plan") and serves as the Plan Administrator; and
WHEREAS, the Employer desires the Trustee to hold Plan funds and the
Trustee is willing to hold such funds pursuant to the terms of this Trust
Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto do hereby mutually declare and agree as
follows:
Section 1. Establishment of Trust.
(a) In order to carry out the purposes of the Plan, the Employer hereby
creates and establishes a trust to be known as the Plantronics, Inc. Annual
Profit Sharing/Individual Savings Plan Trust (hereinafter called the "Trust" or
"Trust Fund"). The Trustee accepts this Trust and agrees to act as Trustee
hereunder, but only on the terms and conditions set forth in this Trust
Agreement. Subject to the terms of this Trust Agreement, all right, title and
interests and to the estate of the Trust Fund shall be vested in the Trustee for
the exclusive benefit of plan participants.
(b) The Trust Fund shall include only those assets which the Trustee
accepts and which are identified on Exhibit A. Only assets actually received by
the Trustee will be accepted in Trust. The Employer acknowledges and agrees that
it is responsible for effectuating the transfer of any assets held by a prior
trustee or custodian to the Trustee. All assets so received, together with the
income therefrom and any other increment thereon, shall be held by the Trustee
pursuant to the terms of this Trust Agreement without distinction between
principal and income and without liability for the payment of interest thereon.
Section 2. General Duties of the Employer; Indemnification.
(a) The Employer shall control and manage the operation of the Plan.
The Employer shall be responsible for determining benefit rights under the Plan,
instructing the Trustee in the disbursement of benefits, investment management,
soliciting proxies, directing the Trustee in voting proxies and performing those
plan administration functions specified in the Plan. The Employer shall also act
as custodian with respect to promissory notes, mortgages and related documents
given in connection with Plan loans, if any, and the Employer shall hold in
safekeeping all such promissory notes, mortgages and related documents.
<PAGE> 4
(b) The Trustee shall be fully protected and shall incur no liability
in acting in reliance upon the written instructions or directions of the
Employer, or any delegate of the Employer. In addition, the Trustee shall be
entitled to rely on directions given by a plan participant, where the plan
provisions permit such direction. The participant shall be regarded as the
delegate of the Employer for purposes of this Agreement and any reference herein
to directions or instructions from the Employer shall include directions or
instructions from any delegate of the Employer including plan participants.
(c) The Employer shall indemnify and hold harmless the Trustee from and
against any and all claims, losses, damages, expenses (including reasonable
counsel fees) and liability to which the Trustee may be subject by reason of any
act done or omitted to be done, except where the same is due to gross negligence
or willful misconduct of the Trustee.
(d) In addition to and in no way in limitation of the indemnification
of paragraph (c), the Employer hereby agrees to indemnify and hold harmless the
Trustee from and against any claims, losses, damages, expenses (including
reasonable counsel fees) and liability to which the Trustee may be subject by
reason of any act or omission of any prior, subsequent or existing trustee of
the Plan.
Section 3. General Duties of Trustee.
(a) The Trustee shall receive, hold, manage, invest and reinvest the
Trust Fund pursuant to the provisions of this Section and Section 4 pursuant to
the written directions of the Employer. The Trustee shall take no action except
pursuant to directions received by it from the Employer and shall have no duty
to determine any facts or the propriety of any action taken or omitted by it in
good faith pursuant to instructions from such persons.
(b) The Trustee shall be responsible only for such assets as are
actually received by it as Trustee hereunder. The Trustee shall have no duty or
authority to ascertain whether any contributions should be made to it pursuant
to the Plan or to bring any action to enforce any obligation to make any such
contribution, nor shall it have any responsibility concerning the amount of any
contribution or the application of the Plan's contribution formula.
(c) The duties and obligations of the Trustee hereunder shall be
limited to those expressly imposed upon it by this Trust Agreement
notwithstanding any reference herein to the Plan, and no further duties or
obligations of the Trustee, such as a duty to value plan investments, determine
the prudence of any plan investment, or diversify plan investments, shall be
implied. The Trustee shall not be liable in discharging its duties hereunder if
it acts in good faith and in accordance with the terms of this Trust Agreement
and in accordance with applicable Federal or state laws, rules and regulations.
Section 4. Power and Duties of Trustee with Respect to Trust Fund. The
Trustee shall have the following powers and duties regarding the Trust Fund:
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<PAGE> 5
(a) To hold title to the assets of the Trust Fund for the exclusive
benefit of plan participants, which may include entering into depository
arrangements for the safekeeping of records relevant to the ownership of such
assets with any bank or banks as the Trustee may choose. Without limiting the
generality of the foregoing, the Employer specifically directs the Trustee to
appoint, and the Trustee hereby appoints the Employer to act as custodian with
respect to promissory notes, mortgages and related documents given in connection
with Plan loans, if any.
(b) To invest the assets of the Trust Fund in such investment vehicles
as directed by the Employer, including plan loans made to participants, and
annuity or insurance contracts issued by affiliates of the Trustee, in
accordance with directions received from the Employer, and to agree to
amendments to such annuity or insurance contracts, as directed by the Employer.
The Trustee shall have no duty or responsibility to determine the
appropriateness of any plan investment, or to cause such investments in to be
changed.
Notwithstanding any other provision of this agreement, all notices, proposed
contract amendments, rate or fee changes or other communications regarding all
group annuity contracts that are assets of the Plan, including any group annuity
contract issued by Connecticut General Life Insurance Company, will be sent
directly by the issuer of the contract to the Employer or forwarded by the
Trustee to the Employer, and the Trustee shall act on behalf of the plan with
respect to any such notice, proposed amendment change or other communication
only- accordance with the written direction of the Employer. Any rights of a
contractholder under any such group annuity contract to discontinue, amend or
otherwise modify the contract shall be exercised only upon the specific written
direction of the Employer to the issuer of the contract or by the Trustee at the
Employer's specific written direction.
(c) To make transfers among investment vehicles or disbursements from
the Trust Fund as directed by the Employer or (if permitted by the terms of the
Plan) plan participants. The Trustee shall be entitled to rely on such
direction, and shall have no responsibility to ascertain whether the Plan
permits such a transfer or disbursement.
(d) To delegate to third parties, including affiliates of the Trustee,
any or all of its duties hereunder, including recordkeeping and reporting. Also,
the Trustee may utilize the services of outside custodians to hold on the
Trustee's behalf any plan assets invested in securities.
(e) To vote securities proxies as directed by the Employer.
Section 5. Payment of Taxes. The Trustee shall pay out of the Trust
Fund income taxes and other taxes of any and all kinds levied or assessed under
existing or future laws against the Trust Fund, or against any person with an
interest in the Trust Fund.
Section 6. Disbursement of Trust Funds.
(a) Upon receipt of written direction of the Employer, the Trustee
shall make payments from the Trust Fund to such persons or direct Connecticut
General Life Insurance Company to make
-3-
<PAGE> 6
such payments from an annuity contract listed on Exhibit A, in such manner and
in such amounts as the Employer shall direct in writing, and amounts paid
pursuant to such direction shall no longer constitute a part of the Trust Fund.
(b) At no time prior to the satisfaction of all liabilities with
respect to participants and beneficiaries under this Trust shall any part of the
corpus or income of the Trust Fund be used for, or diverted to, purposes other
than for the exclusive benefit of plan participants or beneficiaries. Except as
provided in the Plan, the assets of the Trust Fund shall never inure to the
benefit of the Employer and shall be held for the exclusive purpose of providing
benefits to participants in the Plan and their beneficiaries, and defraying
reasonable expenses of administering the Plan.
Section 7. Expenses and Compensation of Trustee. The Trustee shall be
paid its reasonable expenses, including reasonable expenses of counsel and other
agents employed by the Trustee. The Trustee's compensation for its services as
Trustee shall be agreed upon by the Employer and the Trustee in writing;
provided, however, that if the Trustee proposes an amended fee schedule and the
Employer fails to object thereto within ninety (90) days of its receipt, the
amended fee schedule shall be deemed accepted by the Employer. Such expenses and
compensation shall be paid by the Employer, or if they are not so paid, they
shall be paid by the Trustee from the Trust Fund.
Section 8. Expenses of the Plan and Trust Fund. The Employer shall pay,
or, if not paid by the Employer and the Plan so permits, the Employer shall
direct the Trustee to pay from the Trust Fund, the reasonable expenses relating
to the Plan and Trust Fund payable to third parties, including affiliates of the
Trustee. Such expenses shall include, without limitation, actuarial, investment
management, accounting and legal expenses.
Section 9. Accounts of the Trustee.
(a) The Trustee has accepted this Trust on the condition that the
Employer has entered or is entering into a service agreement with Connecticut
General Life Insurance Company whereby Connecticut General Life Insurance
Company will provide recordkeeping services for all Plan assets held pursuant to
this Trust Agreement. The Trustee shall be required to forward to the Employer,
or require Connecticut General Life Insurance Company to forward to the
Employer, the recordkeeping reports and related financial information provided
by Connecticut General Life Insurance Company.
(b) The Trustee's books and records with respect to the Trust Fund
shall be open to inspection by the Employer at all reasonable times during
business hours of the in Trustee. Following the close of the Plan's fiscal year,
the Trustee shall provide an inventory of the assets held in Trust to the
Employer and certify to the accuracy thereof. The Employer may approve such
inventory by an instrument in writing delivered to the Trustee. If the Employer
does not file in writing with the Trustee exceptions or objections to any such
inventory within sixty (60) days after an accounting has been rendered, the
Employer shall be deemed to have approved such inventory. In that event, or upon
the written approval of the Employer of any such inventory, the Trustee shall be
released, relieved and discharged with respect to all matters and things set
forth in such inventory as though such inventory had been settled by the decree
of a court of competent jurisdiction.
-4-
<PAGE> 7
(c) In the case of the revocation or termination of this Trust, or in
case of the resignation or removal of the Trustee, the Employer and the Trustee
shall have the right to a settlement of the Trustee's accounts. This accounting
may be made either (1) by agreement of settlement between the Trustee and the
Employer, or (2) by judicial settlement in an action, suit or proceeding
instituted by the Employer or the Trustee in a court of competent jurisdiction.
(d) Notwithstanding any other provision of this Agreement, the Employer
acknowledges that the Trustee shall not be required to provide an inventory of
accounting of any Plan loans to Plan participants or beneficiaries. Pursuant to
Section 2(a) and Section 4(a), the Employer shall act as custodian with respect
to promissory notes, mortgages and related documents given in connection with
Plan loans and the Employer shall be solely responsible for the safekeeping,
inventorying and accounting for these assets.
Section 10. Resignation, Removal and Substitution of Trustee.
(a) The Trustee may resign at any time by giving at least 30 days'
written notice to the Employer (unless the Employer deems notice of a shorter
duration to be adequate). The Employer may remove the Trustee at any time by
giving at least 30 days' written notice to the Trustee (unless the Trustee deems
notice of a shorter duration to be adequate). No removal of the Trustee shall
become effective, however, until all sums due hereunder to the Trustee for its
compensation and expenses shall have been paid to it and the Employer has
appointed a qualified successor Trustee.
(b) The Trustee's service pursuant to this Agreement is conditioned
upon the existence of one or more contracts between the Employer or the Plan (or
the Trustee on behalf of the Employer or the Plan) and Connecticut General Life
Insurance Company providing a funding medium for the Plan and providing for full
Plan recordkeeping services. In the event the contract providing a funding
medium or providing for recordkeeping services is discontinued or terminated,
this Agreement shall be terminated as well with no further notice from either
party to the other as of the date of discontinuance or termination of the
contract providing a funding medium or providing for recordkeeping services.
(c) Any successor trustee hereunder may be either a corporation
authorized and empowered to exercise trust powers or may be one or more
individuals. In either event, the appointment of a successor trustee shall not
be effective until such successor trustee delivers its written acceptance of
trust to the Trustee.
(d) Upon the completion of the accounting provided for in Section 9 and
upon the appointment of a successor trustee, the resigning or removed Trustee
shall execute, acknowledge and deliver all documents and written instruments
necessary to transfer and deliver the Trust Fund and all rights and privileges
therein to the successor trustee. Upon the completion of such accounting and
upon the appointment of a successor trustee, the resigning and removed Trustee
shall be discharged from further accountability for the Trust Fund with respect
to any matter within the scope of such accounting, and shall be under no further
duty, obligation or responsibility for the disposition by such successor trustee
of the Trust Fund or any part thereof.
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<PAGE> 8
Section 11. Amendment and Termination of Trust.
(a) The Employer and the Trustee may mutually agree at any time to
amend this Trust Agreement and the Trust created hereby to any extent deemed
advisable. No amendment to this Trust Agreement shall be effective unless
mutually agreed to in writing by the Employer and the Trustee; provided,
however, that Trustee's fee schedule may be amended or provided in Section 7.
(b) The Employer may at any time revoke this Trust Agreement and
terminate the Trust hereby created. Such revocation and termination shall become
effective upon receipt by the Trustee or its delegate of a written instrument of
such revocation and termination executed by the Employer. Upon such termination,
disposition of the assets of the Trust Fund shall be governed by the terms of
the Plan; provided, however, that the Trustee shall not distribute any portion
of the Trust Fund after such termination unless the Employer first obtains a
determination from the Internal Revenue Service that such termination will not
affect adversely the qualified status of the Plan and, if required, approval of
the Pension Benefit Guaranty Corporation of such termination and distribution of
assets. In lieu of an Internal Revenue Service determination, assets of the
Trust Fund may be distributed if the Employer agrees in writing with the Trustee
to indemnify the Trust Fund for any taxes or other penalties which may be
assessed against it as a result of such termination or agrees to provide a bond
to secure payment of any such taxes or penalties.
Section 12. Miscellaneous Provisions.
(a) Trust Agreement and the Trust hereby created shall be governed,
construed, administered and regulated in all respects under the law of the
United States and the State of Illinois.
(b) The titles of the Sections in this Trust Agreement are for
convenience of reference only and in case of any conflict, the text of this
instrument, rather than such titles, shall control.
(c) In case any provisions of this Trust Agreement shall be held
illegal or invalid for any reason, their illegality or invalidity shall not
affect the remaining parts of this Trust Agreement, and this Trust Agreement
shall be construed and enforced as if the illegal and invalid provisions had
never been a part of the Trust Agreement.
(d) This Trust Agreement may be executed in any number of counterparts,
each of which shall be deemed an original. The counterparts shall constitute one
and the same instrument and may be sufficiently evidenced by any one
counterpart.
(e) This Trust Agreement shall be binding upon the respective
successors and assigns of the Employer and the Trustee.
(f) Neither the gender nor the number (singular or plural) of any word
shall be construed to exclude another gender or number when a different gender
or number would be appropriate.
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<PAGE> 9
(g) In the event of any conflict between provisions of the Plan and
those of this Trust Agreement, this Trust Agreement shall prevail.
(h) Communications to the Trustee shall be sent to the Trustee's
principal offices or such address as the Trustee may specify in writing. No
communication shall be binding upon the Trustee until it is received by the
Trustee or its delegate. Communications to the Employer shall be sent to the
Employer's principal offices or such address as the Employer may specify in
writing.
IN WITNESS WHEREOF, this Trust Agreement has been executed as of the
day and year first above written. The persons executing this Trust Agreement
represent that they are duly authorized to do so.
Attest: Employer
________________________________ By_____________________________
Its
Attest: CG TRUST COMPANY
________________________________ By_____________________________
Its
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<PAGE> 10
EXHIBIT A
SCHEDULE OF TRUST ASSETS
1. Group Annuity contract GA-36353, issued by Connecticut General Life
Insurance Company.
2. Promissory notes given in connection with loans to Plan participants
and beneficiaries.
3. Fidelity Magellan Fund
4. Fidelity Equity-Income Fund
5. Fidelity Intermediate Bond Fund
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<PAGE> 1
Exhibit 24.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated April 19, 1996, which appears on page
24 of the 1996 Annual Report to Shareholders of Plantronics, Inc., which is
incorporated by reference in Plantronics, Inc.'s Annual Report on Form 10-K for
the year ended March 31, 1996.
/s/ PRICE WATERHOUSE LLP
Price Waterhouse LLP
San Jose, California
January 6, 1997
<PAGE> 1
Exhibit 24.2
January 7, 1997
Plantronics, Inc.
337 Encinal Street
Santa Cruz, California 95060
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about January 7, 1997 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 350,000 shares of your Common Stock for
issuance under the Plantronics, Inc. Annual Profit Sharing/Individual Savings
Plan.
We consent to the use of our name wherever it appears in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
