As filed with the Securities and Exchange Commission on January 10, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HVIDE MARINE INCORPORATED
(Exact name of issuer as specified in its charter)
FLORIDA 65-0524593
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2200 ELLER DRIVE, P.O. BOX 13038
FORT LAUDERDALE, FLORIDA 33316
(954) 523-2200
(Address of Principal Executive Offices and Zip Code)
HVIDE MARINE INCORPORATED
RETIREMENT PLAN AND TRUST
(Full title of the plan)
GENE DOUGLAS, ESQ.
VICE PRESIDENT-LEGAL & GENERAL COUNSEL
2200 ELLER DRIVE, P.O. BOX 13038
FORT LAUDERDALE, FLORIDA 33316
(954) 523-2200
(Telephone number, including area code, of agent for service)
COPY TO:
MICHAEL JOSEPH, ESQ.
DYER ELLIS & JOSEPH
600 NEW HAMPSHIRE AVENUE, N.W.
WASHINGTON, D.C. 20037
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered(1) offering price aggregate offering registration fee
per share(2) price(2)
<S> <C> <C> <C> <C>
Class A Common Stock, par value
$.001 per share................... 100,000 $21.375 $2,137,500 $647.73
- ---------------------------------- ------------------ -------------------- --------------------- ---------------------
</TABLE>
(1) This registration statement covers, in addition to the shares of Class A
Common Stock stated above, an indeterminate amount of interests to
be offered or sold pursuant to the Hvide Marine Incorporated Retirement
Plan and Trust (the "Plan").
(2) Pursuant to Rule 457(c) and (h), the proposed maximum aggregate offering
price per share and the proposed maximum aggregate offering price are
estimated solely for purposes of calculating the registration fee,
and do not take into account plan interests being registered, and are
based upon the average high and low prices of the Class A Common Stock
as reported by the Nasdaq Stock Market on January 3, 1997.
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant hereby incorporates by reference into this registration
statement the following documents filed by the registrant with the Securities
and Exchange Commission:
(a) Quarterly Report on Form 10-Q for the quarter ended September
30, 1996;
(b) Quarterly Report on Form 10-Q for the quarter ended June 30,
1996;
(c) Report on Form 8-K filed with the Commission on August 23,
1996;
(d) The description of the registrant's Class A Common Stock,
$.001 par value, incorporated by reference to the registrant's
Registration Statement on Form S-1, Commission File No.
33-78166; and
(e) The registrant's prospectus pursuant to Rule 424(b) under the
Securities Act of 1933, as amended, filed with the Commission
on August 8, 1996.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), prior to the filing of a post-effective amendment that indicates that all
securities offered have been sold or that deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
An annual report on Form 11-K has not been filed and is not being filed
concurrently herewith on behalf of the Plan because the Plan has not previously
been subject to the reporting requirements of Section 15(d) of the Exchange Act
and because the provision of the Plan that permits the use of employee
contributions for the purchase of the Company's Class A Common Stock, which in
effect constitutes a separate plan and which necessitates the registration of
interests in the Plan, has not been in existence for at least 90 days prior to
the filing of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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The Company's Articles of Incorporation provides that the Company shall
indemnify each director and officer of the Company to the fullest extent
permitted from time to time by the laws of the State of Florida or any other
applicable laws as presently or hereafter in effect. Section 607.0850 of the
Florida Business Corporation Act currently provides as follows:
(1) A corporation shall have power to indemnify any person who
was or is a party to any proceeding (other than an action by, or in the
right of, the corporation), by reason of the fact that he is or was a
director, officer, employee, or agent of the corporation or is or was
serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise against liability incurred in connection
with such proceeding, including any appeal thereof, if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any proceeding by judgment,
order, settlement, or conviction or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interests of the
corporation or, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation shall have power to indemnify any person,
who was or is a party to any proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee, or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against
expenses and amounts paid in settlement not exceeding, in the judgment
of the board of directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in
connection with the defense or settlement of such proceeding, including
any appeal thereof. Such indemnification shall be authorized if such
person acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the corporation, except
that no indemnification shall be made under this subsection in respect
of any claim, issue, or matter as to which such person shall have been
adjudged to be liable unless, and only to the extent that, the court in
which such proceeding was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
(3) To the extent that a director, officer, employee, or agent
of a corporation has been successful on the merits or otherwise in
defense of any proceeding referred to in subsection (1) or subsection
(2), or in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses actually and reasonably incurred by him in
connection therewith.
(4) Any indemnification under subsection (1) or
subsection (2), unless pursuant to a determination by a court, shall
be made by the corporation only as
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<PAGE>
authorized in the specific case upon a determination that
indemnification of the director, officer, employee, or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in subsection (1) or subsection (2).
Such determination shall be made:
(a) By the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such
proceeding;
(b) If such a quorum is not obtainable or, even if obtainable,
by majority vote of a committee duly designated by the board
of directors (in which directors who are parties may
participate) consisting solely of two or more directors not at
the time parties to the proceeding;
(c) By independent legal counsel:
1. Selected by the board of directors prescribed in
paragraph (a) or the committee prescribed in
paragraph (b); or
2. If a quorum of the directors cannot be obtained for
paragraph (a) and the committee cannot be designated
under paragraph (b) selected by majority vote of the
full board of directors (in which directors who are
parties may participate); or
(d) By the stockholders by a majority vote of a quorum
consisting of stockholders who were not parties to such
proceeding or, if no such quorum is obtainable, by a majority
vote of stockholders who were not parties to such proceeding.
(5) Evaluation of the reasonableness of expenses and
authorization of indemnification shall be made in the same manner as
the determination that indemnification is permissible. However, if the
determination of permissibility is made by independent legal counsel,
persons specified by paragraph (4)(c) shall evaluate the reasonableness
of expenses and may authorize indemnification.
(6) Expenses incurred by an officer or director in defending a
civil or criminal proceeding may be paid by the corporation in advance
of the final disposition of such proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if he is ultimately found not to be entitled to indemnification
by the corporation pursuant to this section. Expenses incurred by other
employees and agents may be paid in advance upon such terms or
conditions that the board of directors deems appropriate.
(7) The indemnification and advancement of expenses provided
pursuant to this section are not exclusive, and a corporation may make
any other or further indemnification or advancement of expenses of any
of its directors, officers, employees, or agents, under any bylaw,
agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to
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action in another capacity while holding such office. However,
indemnification or advancement of expenses shall not be made to or on
behalf of any director, officer, employee, or agent if a judgment or
other final adjudication establishes that his actions, or omissions to
act, were material to the cause of action so adjudicated and
constitute:
(a) A violation of the criminal law, unless the director,
officer, employee, or agent had reasonable cause to believe
his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful;
(b) A transaction from which the director, officer, employee,
or agent derived an improper personal benefit;
(c) In the case of a director, a circumstance under which the
liability provisions of s. 607.0834 are applicable; or
(d) Willful misconduct or a conscious disregard for the best
interests of the corporation in a proceeding by or in the
right of the corporation to procure a judgment in its
favor or in a proceeding by or in the right of a
stockholder.
(8) Indemnification and advancement of expenses as provided in
this section shall continue as, unless otherwise provided when
authorized or ratified, to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person, unless otherwise
provided when authorized or ratified.
(9) Unless the corporation's articles of incorporation provide
otherwise, notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary determination of the board or
of the stockholders in the specific case, a director, officer,
employee, or agent of the corporation who is or was a party to a
proceeding may apply for indemnification or advancement of expenses, or
both, to the court conducting the proceeding, to the circuit court, or
to another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice that it considers
necessary, may order indemnification and advancement of expenses,
including expenses incurred in seeking court-ordered indemnification or
advancement of expenses, if it determines that:
(a) The director, officer, employee, or agent is entitled to
mandatory indemnification under subsection (3), in which case
the court shall also order the corporation to pay the director
reasonable expenses incurred in obtaining court-ordered
indemnification or advancement of expenses;
(b) The director, officer, employee, or agent is entitled to
indemnification or advancement of expenses, or both, by virtue
of the exercise by the corporation of its power pursuant to
subsection (7); or
6
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(c) The director, officer, employee, or agent is fairly and
reasonably entitled to indemnification or advancement of
expenses, or both, in view of all the relevant circumstances,
regardless of whether such person met the standard of conduct
set forth in subsection (1), subsection (2), or subsection
(7).
(10) For purposes of this section, the term "corporation"
includes, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director,
officer, employee, or agent of a constituent corporation, or is or was
serving at the request of a constituent corporation as a director,
officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise, is in the same position under this
section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(11) For purposes of this section:
(a) The term "other enterprises" includes employee benefit
plans;
(b) The term "expenses" includes counsel fees, including
those for appeal;
(c) The term "liability" includes obligations to pay a
judgment, settlement, penalty, fine (including an excise tax
assessed with respect to any employee benefit plan), and
expenses actually and reasonably incurred with respect to a
proceeding;
(d) The term "proceeding" includes any threatened, pending, or
completed action, suit, or other type of proceeding, whether
civil, criminal, administrative, or investigative, and whether
formal or informal;
(e) The term "agent" includes a volunteer;
(f) The term "serving at the request of the corporation"
includes any service as a director, officer, employee, or
agent of the corporation that imposes duties on such persons,
including duties relating to an employee benefit plan and its
participants or beneficiaries; and
(g) The term "not opposed to the best interest of the
corporation" describes the actions of a person who acts in
good faith and in a manner he reasonably believes to be in the
best interests of the participants and beneficiaries of an
employee benefit plan.
(12) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was director, officer,
employee, or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee, or agent
of another corporation, partnership, joint venture, trust, or
7
<PAGE>
other enterprise against any liability asserted against him and
incurred by him in any such capacity or arising out of his status as
such, whether or not the corporation would have the power to indemnify
him against such liability under the provisions of this section.
The Underwriting Agreement (Exhibit 1) provides for indemnification by
the Underwriters of the Registrant, its directors and executive officers and by
the Registrant of the Underwriters for certain liabilities, including
liabilities arising under the Securities Act of 1933, as amended (the "Act") and
affords certain rights of contribution with respect thereto.
The Registrant has purchased an insurance policy that provides for
indemnification of the Registrant's executive officers and directors for
liability resulting from their negligence, error, omission or breach of duty
while acting in their capacities as executive officers and directors on any
matter claimed against them by reason of their being executive officers and
directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1* Form of Class A Common Stock Certificate (Domestic)
4.2* Form of Class A Common Stock Certificate (Foreign)
5.1 Opinion of counsel as to the legality of securities being
registered
10.1 Hvide Marine Incorporated Retirement Plan and Trust
23.1 Consents of Ernst & Young LLP
23.2 Consent of Dyer Ellis & Joseph (included as part of Exhibit
5.1)
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of Pannell Kerr Forster of Texas, P.C.
24.1 Power of Attorney
* Filed as exhibit of same number to the Registrant's Registration Statement
on Form S-1, File No. 33-78166, and incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
8
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(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this amendment to the registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in
Washington, D.C. on the 10th day of January, 1997.
HVIDE MARINE INCORPORATED
By: *
J. Erik Hvide
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
amendment to the 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>
* Chairman of the Board, President, Chief January 10, 1997
- -----------------------
J. Erik Hvide Executive Officer and Director (principal
executive officer)
* Executive Vice President--Chief Financial January 10, 1997
- -----------------------
John H. Blankley Officer and Director
* Executive Vice President and Director January 10, 1997
- -----------------------
Donald L. Caldera
* Controller (principal accounting officer) January 10, 1997
- -----------------------
John J. Krumenacker
* Executive Vice President and Director January 10, 1997
- -----------------------
Eugene F. Sweeney
* Director January 10, 1997
- -----------------------
Robert B. Calhoun, Jr.
* Director January 10, 1997
- -----------------------
Gerald Farmer
* Director January 10, 1997
- -----------------------
Jean Fitzgerald
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* Director January 10, 1997
- -----------------------
John Lee
* Director January 10, 1997
- -----------------------
Walter C. Mink
* Director January 10, 1997
- -----------------------
Robert Rice
* Director January 10, 1997
- -----------------------
Raymond B. Vickers
</TABLE>
*By:
Michael Joseph
Attorney-in-Fact
11
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INDEX TO EXHIBITS
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION OF DOCUMENT NUMBERED PAGE
5.1 Opinion of counsel as to the legality of securities being
registered
10.1 Hvide Marine Incorporated Retirement Plan and Trust
23.1 Consents of Ernst & Young LLP
23.2 Consent of Dyer Ellis & Joseph (included as part of Exhibit 5.1)
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of Pannell Kerr Forster of Texas, P.C.
24.1 Power of Attorney
January 10, 1997
Hvide Marine Incorporated
2200 Eller Drive
Ft. Lauderdale, FL 33316
Ladies and Gentlemen:
We have acted as counsel for Hvide Marine Incorporated, a Florida corporation
(the"Company"), in connection with the issuance and sale pursuant to the
Company's registration statement on Form S-8 (the "Registration Statement") of
up to 100,000 shares of Class A Common Stock and an indeterminate amount of
interests to be offered or sold pursuant to the Hvide Marine Incorporated
Retirement Plan and Trust (the "Plan"). Based upon our examination of such
corporate records and other documents and such questions of law as we have
deemed necessary and appropriate, we are of the opinion that when issued, such
securities to be offeredup to or sold pursuant to the Plan, will be validly
issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Dyer Ellis & Joseph PC
HVIDE MARINE INCORPORATED
RETIREMENT PLAN AND TRUST
AS AMENDED AND RESTATED
THROUGH AMENDMENT NUMBER TWO DATED 12/30/96
<PAGE>
HVIDE MARINE INCORPORATED
RETIREMENT PLAN AND TRUST
TABLE OF CONTENTS
Page
ARTICLE I PURPOSE............................................. 1
1.1 Exclusive Benefit................................... 1
1.2 No Rights of Employment Granted..................... 1
ARTICLE II DEFINITIONS......................................... 1
2.1 Accrued Benefit..................................... 1
2.2 Actual Deferral Percentage.......................... 2
2.3 Administrator....................................... 2
2.4 Affiliated Employer................................. 2
2.5 Average Actual Deferral Percentage.................. 2
2.5A Average Contribution Percentage..................... 2
2.6 Base Pay............................................ 2
2.7 Beneficiary......................................... 3
2.8 Cash-Out............................................ 3
2.9 Compensation........................................ 3
2.9A Contribution Percentage............................. 4
2.10 Elective Deferrals.................................. 4
2.11 Eligible Employee................................... 4
2.12 Employee............................................ 5
2.13 Employer............................................ 6
2.14 Employer Account.................................... 6
2.15 ERISA............................................... 7
2.15A Excess Aggregate Contributions...................... 7
2.16 Excess Contributions................................ 7
2.17 Excess Deferral Amount.............................. 7
2.18 Family Member....................................... 7
2.19 Forfeiture.......................................... 7
2.20 Gross Pay........................................... 7
2.21 Highly Compensated Employee......................... 7
2.22 Hour of Service..................................... 8
2.23 IRC................................................. 10
2.24 Leave of Absence.................................... 10
2.24A Nonelective Contributions........................... 10
2.25 Nonhighly Compensated Employee...................... 10
2.26 Normal Retirement Age............................... 10
2.27 Reserved............................................ 10
2.28 One Year Break in Service........................... 11
2.29 Participant......................................... 11
2.29A Participant After-Tax Account....................... 11
2.30 Participant Deferral Account........................ 11
2.31 [Reserved].......................................... 11
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Page
2.32 Plan................................................ 11
2.33 Plan Administrator.................................. 12
2.34 Plan Year........................................... 12
2.35 Retirement.......................................... 12
2.35A Rollover Contribution............................... 12
2.36 Termination Date.................................... 12
2.37 Total and Permanent Disability...................... 12
2.38 Total Service for Vesting........................... 13
2.39 Trust............................................... 13
2.40 Trust Fund.......................................... 13
2.41 Year of Service for Accrual of Benefits............. 13
2.42 Year of Service for Participation................... 13
2.43 Year of Service for Vesting......................... 14
ARTICLE III ELIGIBILITY TO PARTICIPATE.......................... 14
3.1 Initial Entry....................................... 14
3.2 Resumption of Participation......................... 14
3.3 Omission of Ineligible Employee..................... 15
3.4 Inclusion of Ineligible Employee.................... 15
ARTICLE IV CONTRIBUTIONS TO THE TRUST.......................... 15
4.1A Elective Deferrals by Participants.................. 15
4.1B After-Tax Contributions by Participants............. 16
4.2 Employer Contributions to Participants.............. 16
4.2A Annual Limitation on Participant Elective Deferrals. 17
4.2B Average Actual Deferral Percentage Limitation....... 19
4.2C Average Contribution Percentage Limitation.......... 22
4.2D Multiple Use of Alternative Limitation.............. 24
4.3 Permissible Types of Employer Contributions......... 26
4.4 Rollover Contributions.............................. 26
ARTICLE V ADMINISTRATION OF ACCOUNTS.......................... 27
5.1 Investments......................................... 27
5.2 Invest in Single Fund and Reasonable Rules.......... 27
5.3 Valuation of Assets and Allocation of Changes....... 27
5.4 Limitations on Allocations to Each Participant...... 28
5.5 Designation of Beneficiary.......................... 33
ARTICLE VI VESTING............................................. 34
6.1 Participant Deferral Account 100 Percent Vested..... 34
6.2 Employer Account Vesting on Death, Retirement,
or Total and Permanent Disability................... 34
6.3 Employer Account Vesting on Termination............. 34
6.4 Forfeiture for Certain Acts......................... 35
6.5 Restoration of Forfeitures.......................... 35
ARTICLE VII DISTRIBUTION OF BENEFITS............................ 35
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Page
7.1 Method of Distribution of Participant
After-Tax Account............................... 35
7.1A Hardship Distribution................................ 36
7.2 Method of Distribution of Employer Account........... 37
7.3 Time of Distribution................................. 38
7.4 Segregation if Installment Distribution.............. 42
7.5 Non-segregation if Installment Distribution.......... 42
7.6 Distribution After Death of Participant.............. 42
7.7 Distribution After Death of Beneficiary.............. 42
7.8 Direct Rollover...................................... 42
7.9 Suspense Account for Terminated Participants......... 43
7.10 Unable to Locate Participant or Beneficiary.......... 44
7.11 Repayment of Cash-Out................................ 45
7.12 Qualified Domestic Relations Orders.................. 45
ARTICLE VIII DUTIES AND AUTHORITY OF TRUSTEE...................... 45
8.1 Receive Payments..................................... 45
8.2 Value Assets......................................... 46
8.3 Segregation of Accounts.............................. 46
8.4 Tax Returns and Reports.............................. 46
8.5 Powers............................................... 46
8.6 Expenses............................................. 47
8.7 Litigation........................................... 48
8.8 Written Instructions................................. 48
8.9 Appointment of Investment Manager.................... 48
8.10 Removal and Resignation of the Trustee............... 48
8.11 Individual Choice Accounts........................... 48
8.12 Acquisition of Qualifying Employer
Securities and Real Property...................... 49
ARTICLE IX DUTIES AND AUTHORITY OF ADMINISTRATOR................49
9.1 Appointment..........................................49
9.2 No Discrimination....................................49
9.3 Majority Action......................................49
9.4 Powers...............................................50
9.5 Filing Reports.......................................50
9.6 Records and Information..............................50
9.7 Information to Participants..........................50
9.8 Compensation of Members..............................50
9.9 Review of Participant's Claims.......................51
ARTICLE X MODIFICATIONS FOR TOP-HEAVY PLANS....................51
10.1 Application of Article...............................51
10.2 Definitions..........................................51
10.3 Accelerated Vesting..................................53
10.4 Minimum Contributions................................54
10.5 Limitation on Compensation Taken into Account
Under Plan...........................................54
10.6 Modification of Defined Benefit and Defined
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Page
Contribution Fraction................................ 55
ARTICLE XI AMENDMENT AND TERMINATION............................ 55
11.1 Rights to Suspend or Terminate Plan.................. 55
11.2 Successor Corporation................................ 55
11.3 Amendment............................................ 55
11.4 100% Vesting on Termination of Plan.................. 56
11.5 Plan Merger or Consolidation......................... 56
ARTICLE XII MISCELLANEOUS........................................ 57
12.1 Laws of Florida to Apply............................. 57
12.2 Participant Cannot Transfer or Assign Benefits....... 57
12.3 Right to Perform Alternative Acts.................... 57
12.4 Reversion of Contributions Under
Certain Circumstances............................ 57
12.5 Plan Administrator Agent for Service of Process...... 58
12.6 Filing Tax Returns and Reports....................... 58
12.7 Indemnification...................................... 58
12.8 Number and Gender.................................... 58
ARTICLE XIII PARTICIPATING EMPLOYERS.............................. 58
13.1 Adoption by Other Employers.......................... 58
13.2 Requirements of Participating Employers.............. 58
13.3 Designation of Agent................................. 59
13.4 Employee Transfers................................... 59
13.5 Participating Employer's Contribution................ 59
13.6 Amendment............................................ 60
13.7 Discontinuance of Participation...................... 60
13.8 Administrator's Authority............................ 60
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HVIDE MARINE INCORPORATED
RETIREMENT PLAN AND TRUST
The Hvide Marine Incorporated Retirement Plan and Trust previously
made, effective January 1, 1985 (previously known as the Hvide Shipping,
Incorporated Retirement Plan and Trust and originally known as the Hvide
Shipping, Incorporated Offshore Retirement Plan and Trust), by and between Hvide
Marine Incorporated (formerly known as Hvide Shipping, Incorporated), a
corporation of the State of Florida, having its principal place of business at
2200 Eller Drive, Bldg. 27, Fort Lauderdale, Florida 33316, herein called
"Employer" and Barnett Banks Trust Company, N.A., herein called "Trustee," is
hereby amended and restated.
Whereas, Employer desires to amend and restate the Hvide Marine
Incorporated Retirement Plan and Trust (the "Plan") to conform to changes
required by the Tax Reform Act of 1986, the Omnibus Budget Reconciliation Act of
1986, the Revenue Act of 1987, the Technical and Miscellaneous Revenue Act of
1988, the Omnibus Budget Reconciliation Act of 1989, the Omnibus Budget
Reconciliation Act of 1990 and other applicable laws, regulations, and
administrative authority;
Whereas, Employer has made various changes to the Plan since the
effective date of some of the laws referred to in the preceding paragraph, which
changes are presented herein as of the execution date hereof but which changes
shall retain their original effective dates;
Therefore, effective January 1, 1989 (except as provided otherwise in
miscellaneous amendments to the Plan, which are reflected herein), Employer
hereby amends and restates the Hvide Marine Incorporated Retirement Plan and
Trust as follows:
ARTICLE I
PURPOSE
1.1 EXCLUSIVE BENEFIT
This Plan has been executed for the exclusive benefit of the
Participants hereunder and their Beneficiaries. This Plan shall be interpreted
in a manner consistent with this intent and with the intention of the Employer
that this Plan satisfy Internal Revenue Code section 401 and section 501. Under
no circumstances shall the Trust Fund ever revert to or be used or enjoyed by
the Employer, except as provided in Section 12.4.
1.2 NO RIGHTS OF EMPLOYMENT GRANTED
The establishment of this Plan shall not be considered as giving any
employee the right to be retained in the service of the Employer.
ARTICLE II
DEFINITIONS
2.1 ACCRUED BENEFIT
The "Accrued Benefit" is the amount credited to the Employer Account
and, if applicable, the Participant Deferral Account of a Participant or
Beneficiary.
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2.2 ACTUAL DEFERRAL PERCENTAGE
"Actual Deferral Percentage" of each Participant is the ratio,
expressed as a percentage, of (1) the amount of Employer contributions actually
paid over to the Trust on behalf of such Participant for the Plan Year to (2)
the Participant's Compensation for such Plan Year (whether or not the Employee
was a Participant for the entire Plan Year). Employer contributions on behalf of
any Participant shall include: (1) any Elective Deferrals made pursuant to the
Participant's deferral election (including Excess Deferral Amounts of Highly
Compensated Employees), but excluding (a) Excess Deferral Amounts of Nonhighly
Compensated Employees that arise solely from Elective Deferrals made under the
Plan or plans of this Employer and (b) Elective Deferrals that are taken into
account in the Average Contribution Percentage test (provided the Average Actual
Deferral Percentage test is satisfied both with and without exclusion of these
Elective Deferrals); and (2) at the election of the Employer, Qualified
Nonelective Contributions and qualified matching contributions. For purposes of
computing the Actual Deferral Percentage, an Employee who would be a Participant
but for the failure to make Elective Deferrals shall be treated as a Participant
on whose behalf no Elective Deferrals are made. The Actual Deferral Percentage
of each Eligible Employee shall be rounded to the nearest 100th of 1% of such
Employee's Compensation.
2.3 ADMINISTRATOR
The "Administrator" shall refer to the Administrator, as defined in
Section 9.1.
2.4 AFFILIATED EMPLOYER
"Affiliated Employer" shall mean the Employer and any corporation
which is a member of a controlled group of corporations (as defined in IRC
section 414(b)) which includes the Employer; any trade or business (whether or
not incorporated) which is under common control (as defined in IRC section
414(c)) with the Employer; and organization (whether or not incorporated) which
is a member of an affiliated service group (as defined in IRC section 414(m))
which includes the Employer; and any other entity required to be aggregated with
the Employer pursuant to regulations under IRC section 414(o).
2.5 AVERAGE ACTUAL DEFERRAL PERCENTAGE
"Average Actual Deferral Percentage" shall mean, for a specified group
of Eligible Employees for a Plan Year, the average of the Actual Deferral
Percentages (calculated separately for each Participant in such group). The
Average Actual Deferral Percentage of the Eligible Employees shall be rounded to
the nearest 100th of 1%.
2.5A AVERAGE CONTRIBUTION PERCENTAGE
"Average Contribution Percentage" shall mean, for a specified group of
Eligible Employees for a Plan Year, the average of the Contribution Percentages
(calculated separately for each Participant in such group). The Average
Contribution Percentage of the Eligible Employees shall be rounded to the
nearest 100th of 1%.
2.6 BASE PAY
"Base Pay"with respect to any Participant means such Participant's
regular salary and wages paid by the Employer for the portion of the Plan Year
during which the Participant participated in the Plan, but excluding overtime,
bonuses, longevity pay, time for time pay, extra docking pay, ship money pay,
and any other pay that is in addition to Participant's regular salary.
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2.7 BENEFICIARY
A "Beneficiary" is any person, estate or trust who by operation of
law, or under the terms of the Plan, or otherwise, is entitled to receive any
Accrued Benefit of a Participant under the Plan. A "designated Beneficiary" is
any individual designated or determined in accordance with Section 5.5, except
that it shall not include any person who becomes a beneficiary by virtue of the
laws of inheritance or intestate succession.
2.8 CASH-OUT
A "Cash-Out" may be involuntary or voluntary.
An involuntary Cash-Out is a distribution of Accrued Benefit to a
former Participant which meets the following requirements: (i) the former
Participant's entire non-forfeitable Accrued Benefit is distributed to him, (ii)
the present value of the non-forfeitable Accrued Benefit of the Participant does
not exceed $3,500, and (iii) the distribution is made on account of the
Employee's termination of participation in the Plan and no later than the end of
the second Plan Year following such termination.
A voluntary Cash-Out is a distribution of Accrued Benefits to a former
Participant which meets the following requirements: (i) the former Participant
has voluntarily elected to receive the distribution, and (ii) the distribution
is made on account of the Employee's termination of participation in the Plan
and no later than the end of the second Plan Year following such termination.
2.9 COMPENSATION
"Compensation" means with respect to Employees in Groups Lettered A
through G and J, such Employee's Gross Pay. With respect to Employees in Groups
Lettered H and I, "Compensation" means such Employee's Base Bay. Except for
purposes of Section 5.4, that portion of a Participant's Compensation that is
deferred pursuant to Section 4.1 shall be considered Compensation as shall
amounts contributed to any welfare benefit plans maintained by the Employer
through a reduction in the Employee's compensation which, pursuant to IRC
section 125, are not included in the gross income of the Employee for the
taxable year in which such amounts are contributed.
Compensation shall include only that compensation which is actually
paid to the Participant during the determination period. For purposes of this
Section, determination period shall mean the portion of the Plan Year during
which the Participant participated in the Plan.
For years beginning after December 31, 1988, the annual Compensation
of each Participant taken into account for determining all benefits provided
under the Plan for any determination period shall not exceed $200,000 ($150,000
for years beginning after December 31, 1993). This limitation shall be adjusted
by the Secretary at the same time and in the same manner as under IRC section
415(d), except that the dollar increase in effect on January 1 of any calendar
year is effective for years beginning in such calendar year and the first
adjustment to the $200,000 limitation is effected on January 1, 1990. If the
period for determining Compensation used in calculating an Employee's allocation
for a determination period is a short Plan Year (i.e., shorter than 12 months),
the annual Compensation limit is an amount equal to the otherwise applicable
annual Compensation limit multiplied by the fraction, the numerator of which is
the number of months in the short Plan Year, and the denominator of which is 12.
In determining the Compensation of a Participant for purposes of this
limitation, the rules of IRC section 414(q)(6) shall apply, except in applying
such rules, the term "family" shall include only the spouse of the
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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 $200,000 or $150,000 limitation is exceeded, then (except for
purposes of determining the portion of Compensation up to the integration level
if this Plan provides for permitted disparity), the limitation shall be prorated
among the affected individuals in proportion to each such individual's
Compensation as determined under this Section prior to the application of this
limitation.
If the Compensation for any prior determination period is taken into
account in determining an Employee'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.
2.9A CONTRIBUTION PERCENTAGE
"Contribution Percentage" is the ratio, expressed as a percentage, of
after-tax contributions and matching contributions on behalf of an Eligible
Employee for the Plan Year to the Eligible Employee's Compensation for such Plan
Year (whether or not the Employee was a Participant for the entire Plan Year).
However, matching contributions shall not be taken into account to the extent
they are forfeited either to correct Excess Aggregate Contributions or because
the contributions to which they relate are Excess Deferral Amounts, Excess
Contributions, or Excess Aggregate Contributions. The Contribution Percentage of
each Eligible Employee shall be rounded to the nearest 100th of 1% of such
Employee's Compensation.
2.10 ELECTIVE DEFERRALS
"Elective 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 Elective
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 arrangement as described in IRC section 401(k), any simplified employee
pension cash or deferred arrangement as described in IRC section 402(h)(1)(B),
any eligible deferred compensation plan under IRC section 457, any plan as
described under IRC section 501(c)(18), and any Employer contributions made on
behalf of a Participant for the purchase of an annuity contract under IRC
section 403(b) pursuant to a salary reduction agreement. Elective Deferrals
shall not include any deferrals properly distributed as excess annual additions.
2.11 ELIGIBLE EMPLOYEE
"Eligible Employee" shall mean any Employee of the Employer who is
otherwise authorized under the terms of the Plan to have Elective Deferrals
allocated to his account for all or any portion of the Plan Year with respect to
computing the Average Actual Deferral Percentage. An Employee who would be
eligible to make Elective Deferrals but for a suspension due to a distribution
or an election not to participate in the Plan, will not fail to be an Eligible
Employee for purposes of Sections 4.2A, 4.2B, 4.2C, and 4.2D for a Plan Year
merely because the Employee may not make an Elective Deferral by reason of such
suspension. Further, an Employee will not fail to be an Eligible Employee merely
because the Employee may receive no additional annual additions pursuant to
Section 5.4.
2.12 EMPLOYEE; MARITIME EMPLOYEE
"Employee" shall mean any employee of the employer maintaining the
Plan or of any other employer required to be aggregated with such Employer under
IRC sections 414(b), (c), (m) or (o). An "Employee" is an
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individual who would be an Employee but who is on a Leave of Absence. Directors
acting solely in that capacity and independent contractors shall not be
Employees.
The term Employee shall also include any leased employee deemed to be
an Employee of any employer described in the previous paragraph as provided in
IRC sections 414(n) or (o).
The term "leased employee" means any person (other than an employee of
the recipient) who pursuant to an agreement between the recipient and any other
person ("leasing organization") has performed services for the recipient (or for
the recipient and related persons determined in accordance with IRC section
414(n)(6)) are of a type historically performed by employees in the business
field of the recipient employer. Contributions or benefits provided a leased
employee by the leasing organization which are attributable to services
performed for the recipient employer shall be treated as provided by the
recipient employer.
A leased employee shall not be considered an Employee of the recipient
if: (i) such employee is covered by a money purchase pension plan providing: (1)
a nonintegrated employer contribution rate of at least 10% of compensation, as
defined in IRC section 415(c)(3), but including amounts contributed pursuant to
a salary reduction agreement which are excludable from the employee's gross
income under IRC section 125, section 402(a)(8), section 402(h), or section
403(b), (2) immediate participation, and (3) full and immediate vesting; and
(ii) leased employees do not constitute more than 20% of the recipient's
nonhighly compensated workforce.
A "maritime Employee" is defined as an Employee in the maritime
industry. The maritime industry is one in which employees perform duties on
board commercial, exploratory, service or other vessels moving on the high seas,
inland waterways, Great Lakes, coastal zones, harbors and noncontiguous areas,
or on offshore ports, platforms or other similar sites.
All employees fall into one of the following categories, as referred
to on the Employer's books and records. Throughout the Plan, the rights and
benefits afforded to Employees are determined with reference to the Group Letter
to which the Employee is assigned.
"Group A Employees" are Employees who are based shoreside and includes
all Employees who provide administrative services for the Employer other than
those Employees described as "Group E Employees," below.
"Group B Employees" are Employees who are crewmembers of tugboats,
further categorized as follows:
Employees who perform services for Port Everglades Towing and who were
hired before August 15, 1995.
Employees who perform services for Mobile Bay Towing and who were
hired before December 1, 1995.
Employees who perform services for Port Canaveral Towing and who were
hired before December 1, 1995.
"Group C Employees" are Employees who are crewmembers of tugboats,
further categorized as follows:
Employees who perform services for Port Everglades Towing and who were
hired on or after August 15, 1995.
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Employees who perform services for Mobile Bay Towing and who were
hired on or after December 1, 1995.
Employees who perform services for Port Canaveral Towing and who were
hired on or after December 1, 1995.
"Group D Employees" are Employees who perform services offshore for
Sun State Marine Services, Inc. and Seabulk Offshore, Ltd. and who are referred
to as "offshore" Employees.
"Group E Employees" are Employees who perform services onshore for
Sun State Marine Services, Inc. and Seabulk Offshore, Ltd. and who are referred
to as "administrative" Employees.
"Group F Employees" are Employees who are licensed officers and
members of Seabulk Officer's Association who perform services offshore on
tankers and who were hired in 1994 and earlier.
"Group G Employees" are Employees who are licensed officers and
members of Seabulk Officer's Association who perform services offshore on
tankers and who were hired in 1995 and later.
"Group H Employees" are Employees who are unlicensed personnel and
members of Seabulk Seaman's Association who perform services offshore on tankers
and who were hired before April 15, 1995.
"Group I Employees" are Employees who are unlicensed personnel and
members of Seabulk Seaman's Association who perform services offshore on tankers
and who were hired on or after April 15, 1995.
"Group J Employees" are Employees who are unlicensed personnel and
officers assigned to the Employer's Hvide Van Ommeren division.
An Employee who is a member of Group B, C, D, F, G, H or I is a
maritime employee, as referred to above in this Section 2.12.
2.13 EMPLOYER
The "Employer" shall mean Hvide Marine Incorporated, any other
employer required to be aggregated with such Employer under IRC sections 414(b),
(c), (m) or (o) and any entity that, with the consent of Hvide Marine
Incorporated, adopts this Plan pursuant to Article XIII hereto.
2.14 EMPLOYER ACCOUNT
The "Employer Account" is the separate account maintained for each
Participant to which all Employer contributions shall be allocated and to which
Forfeitures may be reallocated.
2.15 ERISA
"ERISA" refers to the Employee Retirement Income Security Act of 1974,
as amended.
2.15A EXCESS AGGREGATE CONTRIBUTIONS
"Excess Aggregate Contributions" shall mean the amount described in
Subsection 4.2C(f).
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2.16 EXCESS CONTRIBUTIONS
"Excess Contributions" shall mean the amount described in Subsection
4.2B(e).
2.17 EXCESS DEFERRAL AMOUNT
"Excess Deferral Amount" shall mean the amount described in Subsection
4.2A(c).
2.18 FAMILY MEMBER
A "Family Member" includes the spouse, lineal ascendants and
descendants of the Employee or former Employee and the spouses of such lineal
ascendants and descendants.
2.19 FORFEITURE
"Forfeiture" refers to the amount of non-vested Accrued Benefits in a
Participant's Employer Account which are used to reduce the Employer's
contribution or, if additional Forfeitures remain, reallocated to the Employer
Accounts of other Participants.
2.20 GROSS PAY
"Gross Pay" with respect to any Participant means such Participant's
regular salary and wages paid by the Employer for the portion of the Plan Year
during which the Participant participated in the Plan, including overtime,
bonuses, longevity pay, time for time pay, extra docking pay, supplemental pay,
ship money pay.
2.21 HIGHLY COMPENSATED EMPLOYEE
A "Highly Compensated Employee" means a highly compensated active
employee and a highly compensated former employee.
A highly compensated active employee includes any Employee who
performs service for the Employer during the determination year and who, during
the look-back year: (i) received compensation from the Employer in excess of
$75,000 (as adjusted pursuant to IRC section 415(d)); (ii) received compensation
from the Employer in excess of $50,000 (as adjusted pursuant to IRC section
415(d)) and was a member of the top-paid group for such year; or (iii) was an
officer of the Employer or an Affiliated Employer and received compensation
during such year that is greater than 50% of the dollar limitation in effect
under IRC section 415(b)(1)(A). The term highly compensated active employee also
includes: (i) Employees who are both described in the preceding sentence if the
term "determination year" is substituted for the term "look-back year" and the
employee is one of the 100 Employees who received the most compensation from the
Employer or Affiliated Employer during the determination year; and (ii)
Employees who are 5 percent owners at any time during the look-back year or
determination year.
The Administrator may elect, in writing, to modify the preceding
sentence by substituting $50,000 for $75,000 in (i) and by disregarding (ii);
provided that the Employer maintains significant business activities (and
employs Employees) in at least two significantly separate geographic areas.
If no officer has satisfied the compensation requirement of (iii)
above during either a determination year or look-back year, the highest paid
officer for such year shall be treated as a Highly Compensated Employee.
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For this purpose, the determination year shall be the Plan Year unless
the Employer elects a calendar year. The look-back year shall be the 12-month
period immediately preceding the determination year, or, if elected by the
Employer, the calendar year ending with or within the applicable determination
year (or, in the case of a determination year that is shorter than 12 months,
the calendar year ending with or within the 12-month period ending with the end
of the applicable determination year), or, if elected, the calendar year
immediately preceding the calendar year determination year.
A highly compensated former employee includes any Employee who
separated from service (or was deemed to have separated) prior to the
determination year, performs no service for the Employer during the
determination year, and was a highly compensated active employee for either the
separation year or any determination year ending on or after the Employee's 55th
birthday.
If an Employee is, during a determination year or look-back year, a
Family Member of either a 5 percent owner who is an active or former Employee or
a Highly Compensated Employee who is one of the 10 most Highly Compensated
Employees ranked on the basis of compensation paid by the Employer or Affiliated
Employer during such year, then the Family Member and the 5 percent owner or
top-ten Highly Compensated Employee shall be aggregated. In such case, the
Family Member and 5 percent owner or top-ten Highly Compensated Employee shall
be treated as a single Employee receiving compensation and plan contributions or
benefits, as applicable, equal to the sum of such compensation and contributions
or benefits, as applicable, of the Family Member and 5 percent owner or top-ten
Highly Compensated Employee.
The determination of who is a Highly Compensated Employee, including
the determination of the number and identity of Employees in the top-paid group,
the top 100 Employees, the number of Employees treated as officers, and the
compensation that is considered, will be made in accordance with IRC section
414(q) and the regulations thereunder.
2.22 HOUR OF SERVICE; DAY OF SERVICE
"Hour of Service" means:
(a) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for the Employer. These hours will be
credited to the Employee for the computation period in which the duties
are performed;
(b) Each hour for which an Employee is paid, or entitled to payment,
by the Employer on account of a period of time during which no duties are
performed (irrespective of whether the employment relationship has terminated)
due to vacation, holiday, illness, incapacity (including disability), layoff,
jury duty, military duty or Leave of Absence. No more than 501 Hours of Service
will be credited under this Subsection (b) for any single continuous period
(whether or not such period occurs in a single computation period). Hours under
this Subsection (b) will be calculated and credited pursuant to section
2530.200b-2 of the Department of Labor Regulations which is incorporated herein
by this reference; and
(c) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same Hours of
Service will not be credited both under Subsection (a) or Subsection (b), as the
case may be, and under this Subsection (c). These hours will be credited to the
Employee for the computation periods to which the award or agreement pertains
rather than the computation period in which the award, agreement or payment is
made.
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Hours of Service will be credited for employment with other members of
an affiliated service group (under IRC section 414(m)), a controlled group of
corporations (under IRC section 414(b)), or a group of trades or businesses
under common control (under IRC section 414(c)) of which the adopting Employer
is a member, and any other entity required to be aggregated with the Employer
pursuant to IRC section 414(o).
Hours of service will also be credited for any individual considered
an Employee for purposes of this Plan under IRC section 414(n) or IRC section
414(o).
Solely for purposes of determining whether a One Year Break in
Service, as defined in Section 2.28, for participation and vesting purposes has
occurred in a computation period, an individual who is absent from work for
maternity or paternity reasons shall receive credit for the Hours of Service in
accordance with the second paragraph of Section 2.28.
Service will be determined on the basis of actual hours for which an
Employee is paid or entitled to payment.
If the Employer maintains the plan of a predecessor employer, service
with such employer will be treated as service for the Employer.
"Day of Service" means:
(a) Each day for which an Employee is paid, or entitled to
payment, for the performance of duties for the Employer. These days will be
credited to the Employee for the computation period in which the duties
are performed;
(b) Each day for which an Employee is paid, or entitled to payment, by
the Employer on account of a period of time during which no duties are performed
(irrespective of whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including disability), layoff, jury
duty, military duty or Leave of Absence. No more than 63 Days of Service will be
credited under this Subsection (b) for any single continuous period (whether or
not such period occurs in a single computation period). Hours under this
Subsection (b) will be calculated and credited pursuant to section 2530.200b-7
of the Department of Labor Regulations which is incorporated herein by this
reference; and
(d) Each day for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer. The same Days of
Service will not be credited both under Subsection (a) or Subsection (b), as the
case may be, and under this Subsection (c). These days will be credited to the
Employee for the computation periods to which the award or agreement pertains
rather than the computation period in which the award, agreement or payment is
made.
Days of Service will be credited for employment with other members of
an affiliated service group (under IRC section 414(m)), a controlled group of
corporations (under IRC section 414(b)), or a group of trades or businesses
under common control (under IRC section 414(c)) of which the adopting Employer
is a member, and any other entity required to be aggregated with the Employer
pursuant to IRC section 414(o).
Days of service will also be credited for any individual considered an
Employee for purposes of this Plan under IRC section 414(n) or IRC section
414(o).
Solely for purposes of determining whether a One Year Break in
Service, as defined in Section 2.28, for participation and vesting purposes has
occurred in a computation period, an individual who is absent from work
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for maternity or paternity reasons shall receive credit for the Days of Service
in accordance with the second paragraph of Section 2.28.
Service will be determined on the basis of actual hours for which an
Employee is paid or entitled to payment.
If the Employer maintains the plan of a predecessor employer, service
with such employer will be treated as service for the Employer.
2.23 IRC
"IRC" refers to the Internal Revenue Code of 1986, as amended.
2.24 LEAVE OF ABSENCE
A "Leave of Absence" shall refer to that period during which the
Participant is absent without Compensation and for which the Administrator, in
its sole discretion has determined him to be on a "Leave of Absence" instead of
having terminated his employment. (However, such discretion of the Administrator
shall be exercised in a nondiscriminatory manner.) In all events, a Leave of
Absence by reason of service in the armed forces of the United States shall end
no later than the time at which a Participant's reemployment rights as a member
of the armed forces cease to be protected by law and a Leave of Absence for any
other reason shall end, at the sole discretion of the Employer, after 18 months,
except that if the Participant resumes employment with the Employer prior
thereto, the Leave of Absence shall end on such date of resumption of
employment. The date that the Leave of Absence ends shall be deemed the
Termination Date if the Participant does not resume employment with the
Employer. In determining a Year of Service for Accrual of Benefits, all such
Leaves of Absence shall be considered to be periods when the Employee is a
Participant.
2.24A NONELECTIVE CONTRIBUTIONS
"Nonelective Contributions" means the Employer contributions described
in Subsection 4.2B(i).
2.25 NONHIGHLY COMPENSATED EMPLOYEE
A "Nonhighly Compensated Employee" shall mean an Employee of the
Employer who is neither a Highly Compensated Employee nor a Family Member.
2.26 NORMAL RETIREMENT AGE
The "Normal Retirement Age" shall be the time at which the Participant
attains 65 years of age and 5 years after initial participation in the Plan.
2.27 RESERVED
2.28 ONE YEAR BREAK IN SERVICE
A "One Year Break in Service" means a Plan Year in which the Participant
has not completed more than 500 Hours of Service, except that in determining a
One Year Break in Service for purposes of eligibility, the initial eligibility
computation period is the 12-consecutive month period beginning on the date of
the Employee first performs an Hour of Service for the Employer (employment
commencement date). The
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succeeding 12-consecutive month periods commence with the first Plan Year which
commences prior to the first anniversary of the Employee's employment
commencement date (regardless of whether the Employee is entitled to be credited
with 1,000 Hours of Service during the initial eligibility computation period).
Solely for purposes of determining whether a One Year Break in
Service, as defined in this Section, for participation and vesting purposes has
occurred in a computation period, an individual who is absent from work for
maternity or paternity reasons shall receive credit for the Hours of Service
which would otherwise have been credited to such individual but for such
absence, or in any case in which such hours cannot be determined, 8 Hours of
Service per day of such absence. For purposes of this paragraph, an absence from
work for maternity or paternity reasons means (1) by reason of the pregnancy of
the individual, (2) by reason of a birth of a child of the individual, (3) by
reason of the placement of a child with the individual in connection with the
adoption of such child by such individual, or (4) for purposes of caring for
such child for a period beginning immediately following such birth or placement.
The Hours of Service credited under this paragraph shall be credited (1) in the
computation period in which the absence begins if the crediting is necessary to
prevent a break in service in that period, or (2) in all other cases, in the
following computation period.
For purposes of maritime Employees, as defined in Section 2.12, a "One
Year Break in Service" means a Plan Year during which a maritime Employee has
not completed more than 63 Days of Service with the Employer. The total Days of
Service required to be credited for a maritime Employee for a maternity or
paternity leave of absence shall not exceed 63.
2.29 PARTICIPANT
A "Participant" shall refer to every Employee or former Employee who
has met the applicable participation requirements of Article III.
2.29A PARTICIPANT AFTER-TAX ACCOUNT
"Participant After-Tax Account" shall mean the account into which
shall be credited contributions made by a Participant pursuant to Section 4.1B
and all dividends, income, gains and losses attributable thereto.
2.30 PARTICIPANT DEFERRAL ACCOUNT
The "Participant Deferral Account" is the separate account, if
applicable, maintained for each Participant to which Elective Deferrals are
allocated. If applicable there shall be a post-1986 Participant Deferral Account
as described in Section 7.1.
2.31 [RESERVED]
2.32 PLAN
"Plan" refers to this Hvide Marine Incorporated Retirement Plan and
Trust Agreement.
2.33 PLAN ADMINISTRATOR
The "Plan Administrator" shall be the Employer, unless a different
person is designated Plan Administrator in a resolution adopted by the board of
directors of the Employer, and such person accepts the designation in writing.
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2.34 PLAN YEAR
A "Plan Year" is the period from the first day of January to the last
day of December, annually.
2.35 RETIREMENT
"Retirement" refers to the termination of employment of a Participant
who has attained at least the Normal Retirement Age. The Participant may work
beyond Normal Retirement Age, in which case Employer contributions and
Forfeitures shall continue to be allocated to the Employer Account of the
Participant.
2.35A ROLLOVER CONTRIBUTION
"Rollover Contribution" means:
(a) amounts transferred to this Plan directly from another
qualified corporate or qualified noncorporate plan;
(b) lump sum distributions received by an Employee from another
qualified plan which are eligible for tax-free rollover treatment and which are
transferred by the Employee to this Plan within sixty (60) days following his
receipt thereof;
(c) amounts transferred to this Plan from a conduit individual
retirement account, provided that such account has no assets other than assets
which were previously distributed to the Employee by another qualified plan; and
further provided that such amounts met the applicable requirements of IRC
section 408(d)(3) for rollover treatment on transfer to the conduit individual
retirement account; and
(d) amounts distributed to an Employee from a conduit individual
retirement account meeting the requirements of Subsection (c) above which are
transferred by the Employee to this Plan within sixty (60) days of his receipt
from such account.
2.36 TERMINATION DATE
The "Termination Date" shall be the date on which the earliest of the
following events occurs: (a) a Participant's retirement, (b) a Participant's
termination of employment as a result of Total and Permanent Disability, (c) a
Participant's death, or (d) a Participant's termination of employment for any
other reason.
2.37 TOTAL AND PERMANENT DISABILITY
"Total and Permanent Disability" shall refer to the Participant
suffering from a physical or mental condition as determined by the
Administrator, based upon appropriate medical reports and examinations, which
may be expected to result in death or be of long and indefinite duration and
which renders the Participant incapable of performing any substantial gainful
activity for purposes of IRC section 72(m)(7).
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2.38 TOTAL SERVICE FOR VESTING
"Total Service for Vesting" shall mean the sum of each separate Year
of Service for Vesting credited to the Participant. Provided a Participant has
not had five consecutive One Year Breaks in Service, if a Participant who has
had a One Year Break in Service becomes reemployed by the Employer, Years of
Service for Vesting shall include Years of Service both after the One Year Break
in Service and prior to the One Year Break in Service after completion of one
Year of Service following the date of such reemployment. In the case of a
non-vested Participant, if his or her consecutive One Year Breaks in Service
equal or exceed the greater of (a) five or (b) the aggregate number of pre-break
Years of Service, Total Service for Vesting shall not include service prior to
the Breaks in Service.
In the case of a Participant who does not have 5 consecutive One Year
Breaks in Service, both the pre-break and post-break service will count in
vesting both the pre-break and post-break Employer-derived account balance.
2.39 TRUST
"Trust" means the Trust created under this Agreement.
2.40 TRUST FUND
The "Trust Fund" consists of the Employer and Participant
contributions held by the Plan and any income or appreciation thereon.
2.41 YEAR OF SERVICE FOR ACCRUAL OF BENEFITS
A "Year of Service for Accrual of Benefits" means a Plan Year during
which the Employee had not less than 1,000 Hours of Service as a Participant. If
the Participant entered the Plan other than on the first day of the Plan Year,
all Hours of Service rendered by the Participant during that Plan Year, whether
or not rendered as a Participant, shall be treated as if they were Hours of
Service as a Participant. For purposes of maritime Employees, as defined at
Section 2.12, a "Year of Service for Accrual of Benefits" shall mean a Plan Year
during which a maritime Employee has at least 125 Days of Service.
2.42 YEAR OF SERVICE FOR PARTICIPATION
A "Year of Service for Participation" means the 12-consecutive month
period (computation period) during which the Employee completes at least 1,000
Hours of Service, which shall be determined as provided in the following
paragraph. For purposes of maritime Employees, as defined at Section 2.12, a
"Year of Service" shall mean the 12-consecutive month period (computation
period) during which a maritime Employee has at least 125 Days of Service.
For purposes of determining a Year of Service for Participation, the
initial eligibility computation period is the 12-consecutive month period
beginning on the date of the Employee first performs an Hour of Service for the
employer (Day of Service in the case of a maritime Employee (employment
commencement date).
The succeeding 12-consecutive month periods commence with the first
Plan Year which commences prior to the first anniversary of the Employee's
employment commencement date regardless of whether the Employee is entitled to
be credited with 1,000 Hours of Service (125 Days of Service in the case of
maritime Employees) during the initial eligibility computation period. An
Employee who is credited with 1,000 Hours of
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Service (125 Days of Service in the case of maritime Employees) in both the
initial eligibility computation period and the first Plan Year which commences
prior to the first anniversary of the Employee's initial eligibility computation
period will be credited with two Years of Service for Participation.
2.43 YEAR OF SERVICE FOR VESTING
A "Year of Service for Vesting" shall mean a Plan Year during which
the Employee had not less than 1,000 Hours of Service; provided, however, for
maritime Employees, a "Year of Service for Vesting" shall mean a Plan Year
during which the maritime Employee completes 125 Days of Service.
ARTICLE III
ELIGIBILITY TO PARTICIPATE
3.1 INITIAL ENTRY
Every Employee who has (i) completed a Year of Service for
Participation or (ii) has attained permanent employee status will be eligible to
participate in the Plan on the first day of the Plan Year or the first day of
the seventh month of the Plan Year which first occurs on or after such
completion, provided that he is an Employee on such date. All Participants shall
be required to furnish such information to the Administrator as it may
reasonably request for the proper administration of the Plan.
Notwithstanding the preceding paragraph of this Section 3.1, an
individual shall not be eligible to participate in the Plan during any time
period for which he is a leased employee (as defined in Section 2.12).
In the event an Employee who is not a member of an eligible class of
Employees becomes a member of an eligible class, such Employee will participate
immediately if such Employee has satisfied the minimum age and service
requirements and would have otherwise previously become a Participant.
3.2 RESUMPTION OF PARTICIPATION
If a Participant incurs at least a One Year Break in Service, his
active participation in the Plan shall be suspended until he attains eligibility
status as described in Section 3.1. Following such One Year Break in Service and
upon then completing a Year of Service for Participation, measured from his
reemployment commencement date, the Participant will be readmitted to active
participation in the Plan retroactive to the beginning of such Year of Service
for Participation. Such Year of Service will be measured by the 12-consecutive
month period beginning on an Employee's reemployment commencement date and, if
necessary, Plan Years beginning with the Plan Year which includes the first
anniversary of the reemployment commencement date. For purposes of this Plan,
the reemployment commencement date is the first day on which the Employee is
credited with an Hour of Service for the performance of duties after the first
eligibility computation period in which the Employee incurs a One Year Break in
Service.
In the event a Participant is no longer a member of an eligible class
of employees and becomes ineligible to participate but has not incurred a One
Year Break in Service, such employee will participate immediately upon returning
to an eligible class of employees. If such Participant incurs a One Year Break
in Service, eligibility will be determined under the break in service rules of
the Plan.
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Notwithstanding the foregoing, if a former Participant becomes
re-employed on permanent status by the Employer before incurring a One Year
Break in Service, he shall continue to participate in the Plan in the same
manner as if such termination had not occurred.
3.3 OMISSION OF INELIGIBLE EMPLOYEE
If, in any Fiscal Year, any Employee who should be included as a
Participant in the Plan is erroneously omitted and discovery of such omission is
not made until after a contribution by his Employer for the year has been made,
the Employer shall make a subsequent contribution plus any earnings related
thereto with respect to the omitted Employee in the amount which the said
Employer would have contributed with respect to him had he not been omitted.
Such contribution shall be made regardless of whether or not it is deductible in
whole or in part in any taxable year under applicable provisions of the Code.
3.4 INCLUSION OF INELIGIBLE EMPLOYEE
If, in any Fiscal Year, any person who should not have been included
as a Participant in the Plan is erroneously included and discovery of such
incorrect inclusion is not made until after a contribution for the year has been
made, the Employer shall not be entitled to recover the contribution made with
respect to the ineligible person regardless of whether or not a deduction is
allowable with respect to such contribution. In such event, the amount
contributed with respect to the ineligible person shall constitute a Forfeiture
for the Fiscal Year in which the discovery is made.
ARTICLE IV
CONTRIBUTIONS TO THE TRUST
4.1A ELECTIVE DEFERRALS BY PARTICIPANTS
Once per quarter and during such other periods as it may establish in
a nondiscriminatory manner, the Administrator will permit each Participant
(including Employees who are expected to be Participants during the following
Plan Year) to elect to defer a percentage of his or her Base Pay or Gross Pay,
as the case may be, as follows:
Employee Classification Maximum Elective
Letter Deferral Contribution
A-G and J 12% of Gross Pay
H & I 12% of Base Pay
Such deferred amount will be contributed to the Plan and allocated to the
Participant Deferral Account. No Participant shall be required to make a
deferral.
A Participant who has received a hardship distribution pursuant to
Section 7.1A shall be suspended from making an Elective Deferral, and shall be
limited in the amount of Elective Deferrals he may make in the taxable year
immediately following the taxable year of the hardship distribution, in
accordance with Section 7.1A.
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4.1B AFTER-TAX CONTRIBUTIONS BY PARTICIPANTS
(a) In order to allow Participants the opportunity to increase their
retirement income, each Participant may elect to contribute an After-Tax
contribution of 1% of either Gross Pay or Base Pay, as applicable.
(b) Such contributions shall be paid to the Trustee no later than 30
days after the Plan Year for which they are deemed to be paid and allocated to
the Participant After-Tax Account. The balance in each Participant's Voluntary
Contribution Account shall be fully Vested at all times and shall not be subject
to Forfeiture for any reason. No Participant shall be required to make such
contributions.
(c) A Participant who has received a hardship distribution pursuant to
Section 7.1A shall be suspended from making an after-tax contribution in
accordance with Section 7.1A.
4.2 EMPLOYER CONTRIBUTIONS TO PARTICIPANTS
(a) Subject to the limitations contained below in this Plan, the
Employer in its discretion may contribute on behalf of each Participant in the
Employee Groups specified below an amount in cash equal to a percentage of the
Participant's Compensation contributed as an Elective Deferral contribution with
respect to each Plan Year. If the Employer makes such a matching contribution,
the formula for the contribution and maximum percentage of a Participant's
Compensation that will be contributed under this subsection with respect to the
various Groups of Employees are as follows:
Employee Classification Matching Contribution Formula
Letter and Maximum Amount Matched
C $1 for $1 of elective deferrals up to 6% of Gross Pay
D $1 for $1 of elective deferrals up to 4% of Gross Pay
E $1 for $1 of elective deferrals up to 7% of Gross Pay
G $1 for $1 of elective deferrals up to 8% of Gross Pay
I $1 for $1 of elective deferrals up to 6% of Base Pay
J $1 for $1 of elective deferrals up to 4% of Base Pay
A, B, F & H Not eligible for Matching Contribution
(b) All matching contributions by the Employer for any Plan Year
provided for under the preceding paragraph, and all Forfeitures of Matching
Contributions, if any, during such year, which shall be used to reduce the
Employer matching contribution, shall be allocated for such year to the Employer
Account of each eligible Participant.
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(c) The Employer in its discretion may make an additional contribution
to the Plan on behalf of each Participant in the Employee Groups specified below
in an amount in cash equal to a percentage of the Participant's Compensation
with respect to each Plan Year. If the Employer makes such an additional
contribution, the percentage of each eligible Participant's Compensation that
will be contributed under this subsection with respect to the various Groups of
Employees is as follows:
Employee Classification Additional
Letter Employer Contribution
F 9% of Gross Pay
H 9% of Base Pay
C, D, E, G, I & J Not Eligible for Additional
Employer Contribution
(d) The Employer in its discretion may make an additional contribution
to the Plan on behalf of each Participant in the Employee Groups A and B, which
contribution shall be allocated as provided below among the accounts of
Participants in Employee Groups A and B. The Employer's additional contribution
under this subsection shall first be allocated as a Level One Contribution. The
Level One Contribution shall be allocated among the Employer Account of each
eligible Participant of Groups A and B in the same proportion that each such
Participant's Compensation for the Plan Year bears to the total Compensation of
all such Participants for the Plan Year, and shall not exceed 7% of each such
Participant's Compensation for the Plan Year. If any additional Employer
contribution remains after allocation of the Level One Contribution, the
remaining Employer contribution shall be allocated as Level Two Contribution.
The Level Two Contribution shall be allocated among the Employer Account of each
eligible Participant who is a Nonhighly Compensated Employee (i) in the same
proportion that each such Nonhighly Compensated Participant's Compensation for
the Plan Year bears to the total Compensation of all such Nonhighly Compensated
Participants for the Plan Year and (ii) such that the total allocation to any
Nonhighly Compensated Participant, considering both Level One and Level Two
Contributions, is equal to seven percent of such Nonhighly Compensated
Participant's Compensation.
(e) All additional contributions by the Employer for any Plan Year
provided for under the preceding two paragraphs, and all Forfeitures of
additional Contributions, if any, during such year, which shall be used to
reduce the Employer additional contribution, shall be allocated for such year to
the Employer Account of each eligible Participant.
(f) The amount of the Employer's discretionary matching and additional
contributions, if any, shall be paid to the Trustee on or before the time
required by law for filing the Employer's federal income tax return (including
extensions) for the year with respect to which the contribution is made.
4.2A ANNUAL LIMITATION ON PARTICIPANT ELECTIVE DEFERRALS
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(a) No Participant shall be permitted to make Elective Deferrals under
this Plan during any calendar year in excess of $7,000 (including any other
elective deferrals within the meaning of IRC section 402(g)(3) in the case of
all other plans, contracts, or arrangements of the Employer), adjusted in the
manner described in IRC section 402(g)(5) for the calendar year.
(b) Notwithstanding any other provision of the Plan, Excess Deferral
Amounts and income allocable thereto shall be distributed no later than each
April 15th to Participants who claim such Excess Deferral Amounts for the
preceding calendar year. A distribution pursuant to this Subsection 4.2A(b) of
Excess Deferral Amounts and income, gains and losses allocable thereto shall be
made without regard to any consent otherwise required under Section 7.3 or any
other provision of the Plan. A distribution pursuant to this Subsection 4.2A(b)
of Excess Deferral Amounts and income, gains and losses allocable thereto shall
not be treated as a distribution for purposes of determining whether the
distribution required by Section 7.3(b)--(h) is satisfied. Any distribution
under this Subsection 4.2A(b) of less than the entire Excess Deferral Amount and
income, gains and losses allocable thereto shall be treated as a pro rata
distribution of Excess Deferral Amounts and income, gains and losses allocable
thereto. In no case may an Employee receive from the Plan as a corrective
distribution for a taxable year under this Subsection 4.2A(b) an amount in
excess of the individual's total Elective Deferrals under the Plan for the
taxable year.
(c) "Excess Deferral Amount" shall mean those Elective Deferrals that
are includable in a Participant's gross income under IRC section 402(g) to the
extent such Participant's Elective Deferrals for a taxable year exceed the
dollar limitation under IRC section 402(g). An Excess Deferral Amount shall be
treated as annual additions under the Plan, unless such amounts are distributed
no later than the first April 15 following the close of the Participant's
taxable year.
(d) The Participant's claim made pursuant to Subsection 4.2A(b) shall
be in writing; shall be submitted to the Administrator no later than March 1
with respect to the preceding calendar year; shall specify the Participant's
Excess Deferral Amount for the preceding calendar year; and shall be accompanied
by the Participant's written statement that if such amounts are not distributed,
such Excess Deferral Amount, when added to amounts deferred under other plans or
arrangements described in IRC sections 401(k), 408(k), or 403(b), exceeds the
limit imposed on the Participant by IRC section 402(g) for the calendar year in
which the deferral occurred. A Participant is deemed to notify the Administrator
of any Excess Deferral Amount that arises by taking into account only those
Elective Deferrals made to this Plan and any other plans of this Employer.
(e) The Excess Deferral Amount shall be adjusted for income or loss.
The income or loss allocable to the Excess Deferral Amount is equal to the
allocable income or loss for the taxable year of the individual as described in
Paragraph (e)(i) below.
(i) The income or loss allocable to the Excess Deferral Amount
for the taxable year of the individual is equal to the income or loss for the
taxable year of the individual allocable to the Participant's Elective Deferrals
multiplied by a fraction, the numerator of which is such Participant's Excess
Deferral Amount for the taxable year, and the denominator is equal to the sum of
the Participant's Elective Deferral Account as of the beginning of the taxable
year, plus the Participant's Elective Deferrals for the taxable year.
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(f) The Excess Deferral Amount which may be distributed under
Subsection 4.2A(b) with respect to an Employee for a taxable year shall be
reduced by any Excess Contributions previously distributed with respect to such
Employee for the Plan Year beginning with or within such taxable year. In the
event of a reduction under this Subsection 4.2A(f), the amount of Excess
Contributions included in the gross income of the Employee and reported by the
Employer as a distribution of Excess Contributions shall be reduced by the
amount of the reduction under this Subsection 4.2A(f).
4.2B AVERAGE ACTUAL DEFERRAL PERCENTAGE LIMITATION
(a) The Average Actual Deferral Percentage for Eligible Employees
who are Highly Compensated Employees may not exceed the greater of:
(i) the Average Actual Deferral Percentage for all
Eligible Employees who are Non-Highly Compensated Employees for the Plan Year
multiplied by 1.25, or
(ii) the Average Actual Deferral Percentage for all Eligible
Employees who are Non-Highly Compensated Employees for the Plan Year multiplied
by 2.0, but not more than 2 percentage points in excess of the Average Actual
Deferral Percentage of Eligible Employees who are Non-Highly Compensated
Employees.
If any Highly Compensated Employee is eligible to make Elective Deferrals, to
make after-tax contributions or to receive matching contributions, the
disparities between the Average Actual Deferral Percentages of the respective
groups shall be reduced as described in Section 4.2D.
(b) Should neither limitation (i) nor (ii) in Subsection 4.2B(a)
be met with respect to a Plan Year:
(i) A Participant may treat his or her Excess Contributions as
an amount distributed to the Participant and then contributed by the Participant
to the Plan. Recharacterized amounts will remain nonforfeitable and subject to
the same distribution requirements as Elective Deferrals. Amounts may not be
recharacterized by a Highly Compensated Employee to the extent that such amount
in combination with other Employee contributions made by that Employee would
exceed any stated limit under the Plan on Employee contributions.
Recharacterization must occur no later than two and one-half months after the
last day of the Plan Year in which such Excess Contributions arose and is deemed
to occur no earlier than the date the last Highly Compensated Employee is
informed in writing of the amount recharacterized and the consequences thereof.
Recharacterized amounts will be taxable to the Participant for the Participant's
tax year in which the Participant would have received them in cash; or
(ii) Excess Contributions, plus any income and minus any loss
allocable thereto, shall be distributed no later than the last day of each Plan
Year to Participants to whose accounts such Excess Contributions were allocated
for the preceding Plan Year. If such excess amounts are distributed more than
2-1/2 months after the last day of the Plan Year in which such excess amounts
arose, a 10% excise tax will be imposed on the employer maintaining the plan
with respect to such amounts. Such distributions shall be made to Highly
Compensated Employees on the basis of the
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respective portions of the Excess Contributions attributable to each of such
Employees. Excess Contributions of Participants who are subject to the family
member aggregation rules shall be allocated among the family members in
proportion to the Elective Deferrals (and amounts treated as Elective Deferrals)
of each family member that is combined to determine the combined Average Actual
Deferral Percentage.
Excess Contributions (including the amounts recharacterized) shall be
treated as annual additions under the Plan. A distribution of Excess
Contributions and income, gains and losses allocable thereto shall be made
without regard to any consent otherwise required under Section 7.3 or any other
provision of the Plan. A distribution pursuant to Paragraph 4.2B(b)(ii) of
Excess Contributions and income, gains and losses allocable thereto shall not be
treated as a distribution for purposes of determining whether the distribution
required by Subsection 7.3(b)--(h) is satisfied. Any distribution under
Paragraph 4.2B(b)(ii) of less than the entire Excess Contribution and income,
gains and losses allocable thereto shall be treated as a pro rata distribution
of Excess Contributions and income, gains and losses allocable thereto. In no
event shall Excess Contributions for a Plan Year remain unallocated or be
allocated to a suspense account for allocation to one or more employees in any
future Plan Year.
Excess Contributions shall be distributed from the Participant's
Elective Deferral Account and qualified Employer Matching Account (if
applicable) in proportion to the Participant's Elective Deferrals and qualified
matching contributions (to the extent used in the Average Actual Deferral
Percentage test) for the Plan Year. Excess Contributions shall be distributed
from the Participant's Qualified Nonelective Contribution account only to the
extent that such Excess Contributions exceed the balance in the Participant's
Elective Deferral account and qualified Employer Matching Account.
(c) The Average Actual Deferral Percentage for any Participant who is a
Highly Compensated Employee for the Plan Year and who is eligible to have
Elective Deferrals (and Qualified Nonelective Contributions or qualified
matching contributions, or both, if treated as Elective Deferrals for purposes
of the test described in Subsection (a)) allocated to his or her accounts under
two or more arrangements described in IRC section 401(k), that are maintained by
the Employer, shall be determined as if such Elective Deferrals (and, if
applicable, such Qualified Nonelective Contributions or 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 IRC section 401(k).
In the event that this Plan satisfies the requirements of IRC sections
401(k), 401(a)(4), or 410(b) only if aggregated with one or more other plans, or
if one or more other plans satisfy the requirements of such sections of the
Internal Revenue Code only if aggregated with this Plan, then this Section shall
be applied by determining the Average Actual Deferral Percentage of employees as
if all such plans were a single plan. For Plan Years beginning after December
31, 1989, plans may be aggregated in order to satisfy IRC section 401(k) only if
they have the same Plan Year.
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(d) For purposes of determining the Average Actual Deferral Percentage
of a Participant who is a 5-percent owner or one of the ten most highly-paid
Highly Compensated Employees, the Elective Deferrals (and Qualified Nonelective
Contributions or qualified matching contributions, or both, if treated as
Elective Deferrals for purposes of the test described in Subsection (a)) and
Compensation of such Participant shall include the Elective Deferrals and, if
applicable, Qualified Nonelective Contributions and qualified matching
contributions, or both) and Compensation for the Plan Year of Family Members (as
defined in IRC section 414(q)(6)). Family Members, with respect to such Highly
Compensated Employees, shall be disregarded as separate employees in determining
the Average Actual Deferral Percentage both for Participants who are Nonhighly
Compensated Employees and for Participants who are Highly Compensated Employees.
(e) For purposes of this Plan, "Excess Contributions" shall mean, with
respect to any Plan Year, the excess of:
(i) The aggregate amount of Employer contributions actually
taken into account in computing the Average Actual Deferral Percentage of Highly
Compensated Employees for such Plan Year, over
(ii) The maximum amount of such contributions permitted by the
Average Actual Deferral Percentage test (determined by reducing contributions
made on behalf of Highly Compensated Employees in order of the Average Deferral
Percentages, beginning with the highest of such percentages).
In no case shall the amount of Excess Contributions for a Plan Year with respect
to any Highly Compensated Employee exceed the amount of Elective Deferrals made
on behalf of such Highly Compensated Employee for such Plan Year.
(f) Excess Contributions shall be adjusted for income or loss. The
income or loss allocable to Excess Contributions is equal to the allocable
income or loss for the taxable year of the individual as described in Paragraph
(f)(i) below.
(i) The income or loss allocable to Excess Contributions is
equal to the income or loss allocable to the Participant's Elective Deferral
Account (and, if applicable, the Qualified Nonelective Contribution Account or
the qualified Employer Matching Account or both) for the Plan Year multiplied by
a fraction, the numerator of which is such Participant's Excess Contributions
for the year, and the denominator is equal to the sum of the Participant's
account balance attributable to Elective Deferrals (and Qualified Nonelective
Contributions or qualified matching contributions, or both, if any of such
contributions are included in the Average Actual Deferral Percentage test) as of
the beginning of the Plan Year, plus the Participant's Elective Deferrals (and
Qualified Nonelective Contributions or qualified matching contributions, or
both, if any of such contributions are included in the Average Actual Deferral
Percentage test) for the Plan Year.
(g) Coordination of Excess Contributions with Distribution of
Excess Deferrals.
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(i) The amount of Excess Contributions to be distributed under
Subsection 4.2B(b) with respect to a Highly Compensated Employee for a Plan Year
shall be reduced by any Excess Deferral Amount previously distributed in
accordance with Subsection 4.2A(b) to such Participant for the Participant's
taxable year ending with or within such Plan Year.
(ii) The Excess Deferral Amount that may be distributed under
Subsection 4.2A(b) with respect to an Employee for a taxable year shall be
reduced by any Excess Contributions previously distributed with respect to such
Employee for the Plan Year beginning with or within such taxable year. In the
event of a reduction under this Paragraph (g)(ii), the amount of Excess
Contributions included in the gross income of the Employee and the amount of
Excess Contributions reported by the Employer as includable in the gross income
of the Employee shall be reduced by the amount of the reduction under Subsection
4.2A(f).
(h) The determination and correction of Excess Contributions of a
Highly Compensated Employee and his Family Participants shall be calculated in
accordance with Treasury Regulation section 1.401(k)-1(f)(5)(ii) and section
1.401(k)-1(g)(1)(ii)(C).
(i) Should Subsection 4.2B(b) be applicable with respect to a Plan
Year, the Employer may, in lieu of or in conjunction with the reductions
described in Subsection 4.2B(b), contribute an additional amount (not limited to
the amount needed to meet limitation (i) or (ii)) as a Nonelective Contribution,
which shall be allocated, at the election of the Employer, only to Nonhighly
Compensated Employees who made or were eligible to make, Elective Deferrals for
such Plan Year. Such amounts shall, at the election of the Employer, be
allocated either (i) in proportion to the Compensation of such individuals, or
(ii) in proportion to the Elective Deferrals of such individuals, or (iii) pro
rata to each of such individuals. Contributions made pursuant to this Subsection
(i) shall be 100% vested at all times and shall be subject to the same
limitations as to withdrawal and distribution as Elective Deferrals.
(j) For purposes of determining the test described in this Subsection
(a), Elective Deferrals, Qualified Nonelective Contributions and qualified
matching contributions must be made before the last day of the twelve-month
period immediately following the Plan Year to which contributions relate.
(k) The Employer shall maintain records sufficient to demonstrate
satisfaction of the test described in this Section 4.2B and the amount of
Qualified Nonelective Contributions or qualified matching contributions, or
both, used in such test.
(l) The determination and treatment of the Average Actual Deferral
Percentage amounts of any Participant shall satisfy such other requirements as
may be prescribed by the Secretary of the Treasury.
4.2C AVERAGE CONTRIBUTION PERCENTAGE LIMITATION
(a) The Average Contribution Percentage for Eligible Employees
who are Highly Compensated Employees may not exceed the greater of:
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(i) the Average Contribution Percentage for all Eligible
Employees who are Non-Highly Compensated Employees for the Plan Year multiplied
by 1.25, or
(ii) the Average Contribution Percentage for all Eligible
Employees who are Non-Highly Compensated Employees for the Plan Year multiplied
by 2.0, but not more than 2 percentage points in excess of the Average
Contribution Percentage for Eligible Employees who are Non-Highly Compensated
Employees.
If any Highly Compensated Employee is eligible to make Elective Deferrals and is
eligible to make after-tax contributions or to receive matching contributions,
the disparities between the Average Contribution Percentages of the respective
groups will be reduced in accordance with Section 4.2D.
(b) The Contribution Percentage for any Eligible Employee who is a
Highly Compensated Employee for the Plan Year and who is eligible to make
after-tax contributions or to receive matching contributions allocated to his
account under two or more plans to which contributions to which IRC section
401(m) applies that are maintained by the Employer or an Affiliated Employer
shall be determined as if all such after-tax contributions and matching
contributions were made under a single plan for purposes of this Section 4.2C.
Notwithstanding the foregoing, certain plans shall be treated as separate if
mandatorily disaggregated under regulations under IRC section 401(m).
(c) In the event this Plan satisfies the requirements of IRC section
410(b) only if aggregated with one or more other plans, or if one or more other
plans satisfy the requirements of IRC section 410(b) only if aggregated with
this Plan, then this Section 4.2C shall be applied by determining the
Contribution Percentage of Eligible Employees as if all such plans were a single
plan.
(d) For purposes of determining the Contribution Percentage of an
Eligible Employee who is a Highly Compensated Employee, and who is subject to
the family aggregation rules of IRC section 414(q)(6) because he is either a
five percent owner or one of the ten most highly compensated employees, the
after-tax contributions, matching contributions and Compensation of such
Eligible Employee shall include the after-tax contributions, matching
contributions and Compensation of Family Members, and such Family Members shall
be disregarded in determining the Contribution Percentage for Eligible Employees
who are Non-Highly Compensated Employees.
(e) Notwithstanding any other provision of this Plan, Excess Aggregate
Contributions, plus any income and minus any loss allocable thereto, shall be
forfeited, if forfeitable, or if not forfeitable, distributed no later than the
last day of each Plan Year to Participants to whose accounts such Excess
Aggregate Contributions were allocated for the preceding Plan Year. Excess
Aggregate Contributions of Participants who are subject to the family member
aggregation rules shall be allocated among the family members in proportion to
the after-tax and matching contributions (or amounts treated as matching
contributions) of each family member that is combined to determine the combined
Average Contribution Percentage. If such Excess Aggregate Contributions are
distributed more than 2-1/2 months after the last day of the Plan Year in which
such excess amounts arose, a 10% excise tax will be imposed on the Employer
maintaining the Plan with respect to those amounts. Excess Aggregate
Contributions shall be treated as annual additions under the Plan. A
distribution of Excess Aggregate Contributions and income, gains and losses
allocable thereto shall be made without
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regard to any consent otherwise required under Section 7.3 or any other
provision of the Plan. A distribution pursuant to this Subsection 4.2C(e) of
Excess Aggregate Contributions and income, gains and losses allocable thereto
shall not be treated as a distribution for purposes of determining whether the
distributions required by Subsections 7.3(b)--(h) are satisfied.
(f) For purposes of this Plan, "Excess Aggregate Contributions" shall
mean, with respect to any Plan Year, the excess of:
(i) The aggregate Contribution Percentage Amounts taken into
account in computing the numerator of the Average Contribution Percentage
actually made on behalf of Highly Compensated Employees for such Plan Year, over
(ii) The maximum Contribution Percentage Amounts permitted by
the Average Contribution Percentage test (determined by reducing contributions
made on behalf of Highly Compensated Employees in order of their Contribution
Percentages beginning with the highest of such percentages).
Such determination shall be made after first determining Excess Deferral Amounts
pursuant to Section 4.2A and then determining Excess Contributions pursuant to
Section 4.2B. In no case shall the amount of Excess Aggregate Contributions with
respect to any Highly Compensated Employee exceed the amount of after-tax
contributions and matching contributions made on behalf of such Highly
Compensated Employee for such Plan Year.
(g) Excess Aggregate Contributions shall be adjusted for income or
loss. The income or loss allocable to Excess Aggregate Contributions Amount is
equal to the allocable income or loss for the taxable year of the individual as
described in Paragraph (g)(i) below.
(i) The income or loss allocable to Excess Aggregate
Contributions is equal to the Participant After-Tax Account, Employer Matching
Account (if any, and if all amounts therein are not used in the Average Actual
Deferral Percentage test) and, if applicable, Qualified Nonelective Contribution
Account and Elective Deferral Account of the Plan Year multiplied by a fraction,
the numerator of which is such Participant's Excess Aggregate Contributions for
the Plan Year, and the denominator is equal to the sum of the Participant's
account balance(s) attributable to after-tax contributions, matching
contributions and, if applicable, Qualified Nonelective Contributions and
Elective Deferrals as of the beginning of the Plan Year, plus the after-tax
contributions, matching contributions and, if applicable, Qualified Nonelective
Contributions and Elective Deferrals for the Plan Year.
(h) The determination and correction of Excess Aggregation
Contributions of a Highly Compensated Employee and his Family Members shall be
calculated in accordance with Treasury Regulation section 1.401(m)-1(e)(2)(iii)
and section 1.401(m)-1(f)(1)(ii)(C).
(i) Excess Aggregate Contributions shall be forfeited, if forfeitable
or distributed on a pro-rata basis from the Participant After-Tax Account,
Employer Matching Account, and qualified
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Employer Matching Account (and, if applicable, the Participant's Qualified
Nonelective Contribution Account or Elective Deferral Account, or both).
(j) Forfeitures of Excess Aggregate Contributions shall be applied
to reduce Employer contributions.
(k) Notwithstanding the foregoing, no forfeitures arising under this
Section 4.2C shall remain unallocated or be allocated to a suspense account for
allocation to one or more Employees in any future Plan Year.
(l) Nothing contained in this Article IV shall prevent the
Administrator from reducing the rate of after-tax contributions during the Plan
Year for Highly Compensated Employees in order to meet the test of Subsection
4.2C(a).
4.2D MULTIPLE USE OF ALTERNATIVE LIMITATION
(a) The Average Actual Deferral Percentage or Average Contribution
Percentage of Highly Compensated Employees shall be adjusted as described in
Subsection 4.2D(b) below if all of the following conditions of this Subsection
4.2D(a) apply--
(i) One or more Highly compensated Employees of the Employer
or an Affiliated Employer are eligible to participate both in an IRC section
401(k) arrangement and in a plan maintained by the Employer or an Affiliated
Employer subject to IRC section 401(m);
(ii) The sum of the Average Actual Deferral Percentage of all
Eligible Employees under the plans described in Paragraph (a)(i) who are Highly
Compensated Employees and the Average Contribution Percentage of the entire
group of Eligible Employees who are Highly Compensated Employees exceeds the
Aggregate Limit described in Subsection 4.2D(e);
(iii) The Average Actual Deferral Percentage of the entire
group of Eligible Employees who are Highly Compensated Employees exceeds the
amount described in Paragraph 4.2B(a)(i); and
(iv) The Average Contribution Percentage of the entire group
of Eligible Employees who are Highly Compensated Employees exceeds the amount
described in Paragraph 4.2C(a)(i).
(b) The Administrator shall elect to reduce either the Average Actual
Deferral Percentage or the Average Contribution Percentage of the entire group
of Eligible Employees who are Highly Compensated Employees in accordance with
this Subsection 4.2D(b). The amount of the reduction to the Average Actual
Deferral Percentage of the entire group of Eligible Employees who are Highly
Compensated Employees shall, if elected, be calculated and accomplished in the
manner described in Subsection 4.2B(e) or the amount of the reduction to the
Average Contribution Percentage of the entire group of Eligible Employees who
are Highly Compensated Employees shall, if elected, be calculated and
accomplished in the manner described in Subsection 4.2C(f), so that in either
case the
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Aggregate Limit described in Subsection 4.2D(e) shall not be exceeded. The
Administrator may elect to reduce the Actual Deferral Percentage or the
Contribution Percentage either for all Highly Compensated Employees under the
Plan who are subject to reduction or for only those Highly Compensated Employees
who are eligible in both the arrangements subject to IRC section 401(k) and the
plan subject to IRC section 401(m).
(c) The required reduction described in Subsection 4.2D(b) shall be
treated as an Excess Contribution or Excess Aggregate Contribution under the
Plan as the case may be.
(d) For purposes of applying Subsection 4.2D(a), the Average Actual
Deferral Percentage and Average Contribution Percentage of the group of Eligible
Employees who are Highly Compensated Employees shall be determined after any
corrective distribution of Excess Deferral Amounts pursuant to Subsection
4.2A(b), Excess Contributions pursuant to Paragraph 4.2B(b)(ii), or Excess
Aggregate Contributions pursuant to Subsection 4.2C(e) and after any
recharacterization of Excess Contributions pursuant to Paragraph 4.2B(b)(i)
required without regard to this Section 4.2D. Only plans and arrangements
maintained by the same Employer or an Affiliated Employer shall be taken into
account under this Section 4.2D.
(e) For purposes of this Section 4.2D, the "Aggregate Limit" shall
mean the greater of (i) or (ii) where--
(i) is the sum of:
(A) 125% of the greater of (I) the Average Actual
Deferral Percentage of the group of Eligible Employees who are Non-Highly
Compensated Employees for the Plan Year, or (II) the Average Contribution
Percentage of the group of Eligible Employees who are Non-Highly Compensated
Employees for the Plan Year, and
(B) two percentage points plus the lesser of
Subparagraphs 4.2D(e)(i)(A)(I) or 4.2D(e)(i)(A)(II) above. In no event,
however, shall the amount described in this Subparagraph 4.2D(e)(i)(B) exceed
200% of the lesser of Subparagraphs 4.2D(e)(i)(A)(I) or (II) above; and
(ii) is the sum of:
(A) 125% of the lesser of (I) the Average Actual Deferral
Percentage of the group of Eligible Employees who are Non-Highly Compensated
Employees for the Plan Year, or (II) the Average Contribution Percentage of the
group of Eligible Employees who are Non-Highly Compensated Employees for the
Plan Year, and
(B) two percentage points plus the greater of Subparagraphs
4.2D(e)(ii)(A)(I) or 4.2D(e)(ii)(A)(II) above. In no event, however, shall the
amount described in this Subparagraph 4.2D(e)(ii)(B) exceed 200% of the lesser
of Subparagraph 4.2D(e)(ii)(A)(I) or (II) above.
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4.3 PERMISSIBLE TYPES OF EMPLOYER CONTRIBUTIONS
Payments on account of the contributions due from the Employer for any
year may be made in cash or in kind; except that assets may not be contributed
if such contribution violates the prohibited transaction rules of IRC section
4975, or the corresponding rules under ERISA section 406, if applicable.
4.4 ROLLOVER CONTRIBUTIONS
(a) Any Employee may make a Rollover Contribution to the Plan
provided, however, that the trust from which the funds are to be transferred
must permit the transfer to be made, and provided, further, the Employer is
reasonably satisfied that such transfer will not jeopardize the tax exempt
status of this Plan or Trust or create adverse tax consequences for the
Employer. Rollover Contributions shall be made by delivery to the Trustee (or to
the Employer for delivery to the Trustee) for deposit in the Trust. All Rollover
Contributions must be in cash. The Trustee will not accept rollovers of
accumulated deductible employee contributions from a Simplified Employee Pension
Plan, nor will the Trustee accept rollovers in the form of a direct transfer
from any qualified plan that is required to provide benefits in the form of a
qualified joint and survivor annuity or a qualified pre-retirement survivor
annuity, as defined in IRC section 417(b) and (c). An Employee who makes a
Rollover Contribution to the Plan but who otherwise is not eligible to
participate in the Plan shall not be considered an eligible participant under
Section 3.1 merely because he or she made such Rollover Contribution.
(b) If the Administrator accepts such transfer of funds, it shall
allocate them to a separate or segregated account established for such purpose
("Rollover Account"). If the funds are allocated to a segregated account, they
shall be invested separately and any appreciation, depreciation, gain, or loss
with respect to such account, and any related expenses shall be allocated to
such account; such funds shall be 100% vested.
(c) Rollover Contributions shall not be considered to be Participant
contributions for the purpose of calculating the limitations under Section 5.4.
ARTICLE V
ADMINISTRATION OF ACCOUNTS
5.1 INVESTMENTS
The amounts allocated to the Employer and Participant Accounts shall
be invested by the Trustee (except as provided in Section 9.4) in accordance
with Article VIII.
5.2 INVEST IN SINGLE FUND AND REASONABLE RULES
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The Trustee may cause all contributions paid to it by the Employer
and, if applicable the Participant, and the income therefrom, without
distinction between principal and income, to be held and administered as a
single fund, and the Trustee shall not be required to invest separately any
share of any Participant except as provided in Sections 7.4 and 8.11. The
Trustee may adopt reasonable rules for the administration of such common fund
and for the determination of the proportionate interest of each Participant in
the fund.
5.3 VALUATION OF ASSETS AND ALLOCATION OF CHANGES
The assets of the Trust Fund will be valued as of the close of the
last day of each Plan Year or such other valuation date selected by the
Administrator at their fair market value and the Employer Account (or Employer
Accounts if the Participant has Accrued Benefits for service incurred both prior
and subsequent to 5 consecutive One Year Breaks in Service), including any
Employer Account held in suspense, and, if applicable, the Participant Deferral
Account of each Participant shall be adjusted for any net appreciation or net
depreciation in the assets of the Plan and any net income or net loss of the
Trust for such year, with each account being credited or charged in the ratio
that the amount of the account (as of the close of the last day of the Plan
Year) bears to the total (as of the close of the last day of the Plan Year) of
all remaining non-segregated accounts. For the purpose of such adjustment of
accounts, any contribution made by the Employer with respect to that Plan Year
shall be considered as having been made immediately after such valuation and
adjustment, unless such contributions are actually allocated to a Participant's
account prior to such valuation. In making the adjustments required by this
Section the cash value of any life insurance, and the value of any amounts
segregated in accordance with Sections 7.4 and 8.11 shall not be considered in
determining the amount of net appreciation, depreciation, gain or loss to be
allocated to such account. The amount of any net appreciation, depreciation,
gain or loss with respect to such cash value or segregated account shall be
allocated to the individual account with respect to which it arose. In addition
to the valuations required by the first sentence of this Section 5.3, the Trust
Fund may be valued at such other times during the Plan Year as the Administrator
deems appropriate.
5.4 LIMITATIONS ON ALLOCATIONS TO EACH PARTICIPANT
(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 IRC section 419(e) maintained by the employer, or an
individual medical account, as defined in IRC section 415(l)(2), maintained by
the employer, which provides an annual addition as defined in Paragraph (d)(i),
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
employer contribution 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
compensation for the limitation year, the employer may determine the maximum
permissible amount for a Participant on the basis of
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a reasonable estimation of the Participant's compensation for the limitation
year, uniformly determined for all Participants similarly situated.
(iii) As soon as 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 (a)(iii) or as a result of an
allocation of Forfeitures there is an excess amount the excess will be disposed
of as follows:
(1) Any elective deferrals, within the meaning of Code Section 402(g)(3),
shall be distributed to the Participant and any nondeductible voluntary employee
contributions will be returned to the Participant to the extent that such
distribution or return would reduce the excess amount.
(2) If after the application of Subparagraph (1) an excess amount still
exists, and the Participant is covered by the Plan at the end of the limitation
year, the excess amount in the Participant's account will be used to reduce
employer contributions (including any allocation of Forfeitures) for such
Participant in the next limitation year, and each succeeding limitation year if
necessary.
(3) If after the application of Subparagraph (1) an excess amount still
exists, and 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.
(4) If a suspense account is in existence at any time during a limitation
year pursuant to this Section, it will not participate in the allocation of the
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
employer or Employee contributions may be made to the Plan for that limitation
year. Excess amounts may not be distributed to Participants or former
Participants.
(b) (i) This Subsection (b) applies if, in addition to this Plan, the
Participant is covered under another qualified defined contribution plan
maintained by the employer, a welfare benefit fund, as defined in IRC section
419(e) maintained by the employer, or an individual medical account, as defined
in IRC section 415(l)(2), maintained by the employer, which provides an annual
addition as defined in Paragraph (d)(i), 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 the 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
cause the annual additions for the limitation year to exceed this
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limitation, the amount contributed or allocated will be reduced so 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)(ii).
(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 (b)(iii) 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 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,
(1) the total excess amount allocated as of
such date, times
(2) 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 the other qualified defined
contribution plans.
(vi) Any excess amount attributed to this Plan will be
disposed in the manner described in Paragraph (a)(iv).
(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 fraction and defined contribution 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
are limited as follows: If the Participant's defined benefit fraction and
defined contribution fraction would otherwise exceed 1.0, the Participant's
accruals under the defined benefit plan will be reduced to the extent necessary
to prevent such combined fraction from exceeding 1.0 before any annual additions
to this Plan or any other defined contribution plan maintained by the employer
are reduced.
(d) Definitions.
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(i) Annual additions: The sum of the following credited
to a Participant's account for the limitation year:
(1) employer contributions,
(2) employee contributions,
(3) forfeitures, and
(4) amounts allocated, after March 31, 1984, to an individual medical
account, as defined in IRC section 415(l)(2), which is part of a pension or
annuity plan maintained by the employer are treated as annual additions to a
defined contribution plan. Also 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 IRC section 419A(d)(3), under a welfare
benefit fund, as defined in IRC section 419(e), maintained by the employer are
treated as annual additions to a defined contribution plan.
For this purpose, any excess amount applied under (a)(iv) or
(b)(vi) in the limitation year to reduce employer contributions will be
considered annual additions for such limitation year.
(ii) Compensation: Compensation is defined as 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 salesmen, compensation for services on the basis of
a percentage of profits, commissions on insurance premiums, tips, bonuses,
fringe benefits, and reimbursements or other expense allowances under a
nonaccountable plan (as described in Treasury Regulation section 1.62-2(c)), and
excluding the following:
(1) 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 form a plan of deferred compensation;
(2) 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;
(3) Amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option; and
(4) 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
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an annuity contract described in IRC section 403(b) (whether or not the
contributions are actually excludable from the gross income of the Employee).
For any self-employed individual compensation will mean earned
income.
For limitation years beginning after December 31, 1991, for
purposes of applying the limitations of this Section 5.4, compensation for a
limitation year is the compensation actually paid or made available during such
limitation year.
Notwithstanding the preceding sentence, compensation for a
Participant in a defined contribution plan who is permanently and totally
disabled (as defined in IRC section 22(e)(3)) is the compensation such
Participant would have received for the limitation year before becoming
permanently and totally disabled; such imputed compensation for the disabled
Participant may be taken into account only if the Participant is not a Highly
Compensated Employee (as defined in IRC section 414(q)) and contributions made
on behalf of such Participant are nonforfeitable when made.
(iii) 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% of the dollar limitation
determined for the limitation year under IRC sections 415(b) and (d) or 140% of
the highest average compensation, including any adjustments under IRC section
415(b).
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% 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 IRC section 415 for all limitation years beginning before
January 1, 1987.
(iv) Defined contribution dollar limitation: $30,000 or
if greater, one-fourth of the defined benefit dollar limitation set forth in IRC
section 415(b)(1) as in effect for the limitation year.
(v) 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 IRC section 419(e), and individual medical accounts, as defined in
IRC section 415(l)(2), 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
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125% of the dollar limitation determined under IRC sections 415(b) and (d) in
effect under IRC section 415(c)(1)(A) or 35% of the Participant's compensation
for such year.
If the Employee was a Participant as of the end of the first
day of the 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 (i)
the excess of the sum of the fractions over 1.0 times (ii) 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 IRC 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 computed to treat all employee contributions as
annual additions.
With respect to each Participant, for years of service ending
prior to January 1, 1983, the amount taken into account in the denominator of
the defined contribution fraction, as set forth above, may, at the election of
the Plan Administrator, be an amount equal to the denominator of the defined
contribution fraction for the Plan Year ending in 1982, as determined under the
law immediately prior to the enactment of the Tax Equity and Fiscal
Responsibility Act of 1982, multiplied by the transition fraction described in
IRC section 415(e)(6).
(vi) Employer: For purposes of this Section 5.4, employer
shall mean the employer that adopts this Plan, and all members of a controlled
group of corporations (as defined in IRC section 414(b) as modified by IRC
section 415(h)), all commonly controlled trades or businesses (as defined in IRC
section 414(c) as modified by IRC section 415(h), or affiliated service groups
(as defined in IRC section 414(m)) of which the adopting employer is a part, and
any other entity required to be aggregated with the employer pursuant to
regulations under IRC section 414(o).
(vii) Excess amount: The excess of the Participant's annual
additions for the limitation year over the maximum permissible amount.
(viii) Highest average compensation: The average compensation
for the three consecutive years of service with the employer that produces the
highest average. A year of service with the employer is the 12-consecutive month
period used for measuring Compensation in the second paragraph of Section 2.9.
(ix) Limitation year: The Plan Year, unless the Employer
elects in writing a different 12-consecutive month period. 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.
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(x) 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:
(1) the defined contribution dollar limitation, or
(2) 25% of the Participant's compensation for the
limitation year.
The compensation limitation referred to in (2) shall not apply
to any contribution for medical benefits (within the meaning of IRC section
401(h) or IRC section 419A(f)(2)) which is otherwise treated as an annual
addition under IRC section 415(l)(1) or section 419A(d)(2).
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
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12
(xi) 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
the plan assuming:
(1) the Participant will continue employment
until normal retirement age under the plan (or current age, if later), and
(2) the Participant's 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 DESIGNATION OF BENEFICIARY
Each Participant may designate from time to time in writing one or
more Beneficiaries, who will receive the Participant's vested Accrued Benefit in
the event of the Participant's death. If the Participant dies without having
made a Beneficiary designation, the Trustee shall distribute such benefits in
the following order of priority to the deceased Participant's: (a) spouse, (b)
lineal descendants, (c) parents, or (d) estate.
However, in the event of the death of a married Participant, the
surviving spouse must be the sole beneficiary unless the surviving spouse has
consented in writing to a different election, has acknowledged the effect of
such election, and the consent and acknowledgement are witnessed by the
Administrator or a notary public. The consent of the spouse shall not be
necessary if it is established to the satisfaction of the Administrator that
there is no spouse, the spouse cannot reasonably be
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located, or for such other reasons as the regulations may prescribe. The consent
of a spouse as reason for not requiring such consent shall be applicable only to
that spouse. If the spouse of a Participant becomes locatable or if a
Participant remarries, it shall be the duty of the Participant to bring that
fact to the attention of the Administrator. If the Participant so notifies the
Administrator, the Administrator shall then, if applicable, proceed to make
available to such spouse the consent of spouse procedures described in this
Section.
ARTICLE VI
VESTING
6.1 PARTICIPANT DEFERRAL ACCOUNT 100 PERCENT VESTED
The Accrued Benefit in the Participant Deferral Account shall be 100%
vested at all times.
6.2 EMPLOYER ACCOUNT VESTING ON DEATH, RETIREMENT,
OR TOTAL AND PERMANENT DISABILITY
If a Participant's employment is terminated for death, for Total and
Permanent Disability, or upon a Participant attaining Normal Retirement Age,
100% of the Accrued Benefit shall vest in the Participant (or in his
Beneficiary, as the case may be) and shall be distributed in accordance with the
provisions of Article VII.
6.3 EMPLOYER ACCOUNT VESTING ON TERMINATION
If a Participant's employment is terminated prior to attaining Normal
Retirement Age except for death or Total and Permanent Disability, the following
percentages of the Accrued Benefit in the Employer Account of the Participant
shall vest in the Participant and shall be distributed to or set aside for him
(or his Beneficiary) in accordance with the provisions of Article VII:
Vested percentage of
Total Service for Vesting Employer Account
1 year of service 20%
2 years of service 40%
3 years of service 60%
4 years of service 80%
5 or more years of service 100%
The Accrued Benefit of a Participant which is not vested as above
provided shall be retained by the Trustee for allocation as a Forfeiture, in
accordance with the provisions of Sections 4.2, 6.5, 7.9, and 7.11.
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6.4 FORFEITURE FOR CERTAIN ACTS
Notwithstanding the provisions of Section 6.3, a Participant who has
less than 5 years of Total Service for Vesting shall forfeit any amount accrued
in his Employer Account if he should commit any criminal act or willful or
malicious act which damages the Employer or other Employees.
6.5 RESTORATION OF FORFEITURES
If a Participant is less than 100% vested, and either (i) he receives
a distribution from the Plan and forfeits part of his Accrued Benefit, and then,
if the Participant resumes employment with the Employer before the occurrence of
five consecutive One Year Breaks in Service, or (ii) the Participant receives an
in-service distribution, then until such time as there is a fifth consecutive
One Year Break in Service, the Participant's vested portion of the balance in
his account at any time shall be equal to an amount ("X") determined by the
formula X = P(AB + (R X D)) - (R X D), where "P" is the vested percentage of the
Participant at such time, "AB" is the balance in the Participant's account at
such time and "D" is the amount of the distribution not previously repaid by the
Participant in accordance with Section 7.11 (if applicable), and "R" is the
ratio of the account balance at the relevant time to the account balance after
distribution.
If the Participant's forfeited Accrued Benefit is restored pursuant to
this Section 6.5, the restoration shall be made first out of Forfeitures, if
any, and then by additional Employer contributions.
ARTICLE VII
DISTRIBUTION OF BENEFITS
7.1 METHOD OF DISTRIBUTION OF PARTICIPANT AFTER-TAX ACCOUNT
(a) If a Participant's employment is terminated at any time for any
reason, there shall be distributed to him, in a lump sum as soon as practicable
after his Termination Date, the amount, if any, of his Participant After-Tax
Account. Prior to his Termination Date, a Participant may, upon reasonable
notice to the Administrator, withdraw, in the order prescribed in Subsection
(b), an amount from his Participant After-Tax Account which does not exceed the
account balance. A Participant shall be permitted one withdrawal per quarter.
(b) If a Participant requests a withdrawal prior to his Termination
Date from his Participant After-Tax Account, any amounts distributed to him
shall be withdrawn in the following sequence:
(i) Part or all of his Participant after-tax contributions
made before January 1, 1987 not previously withdrawn, which shall have been
allocated to a Participant After-Tax sub-Account for pre-1987 after-tax
contributions, but not more than the current value thereof;
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(ii) Upon the withdrawal of all amounts withdrawn pursuant to
(i), part or all of his Participant after-tax contributions made after December
31, 1986 not previously withdrawn, but not more than the current value thereof
together with the share of accumulated income, gains and losses attributable to
the Participant after-tax contributions so distributed (determined at the time
of such distributions); and
(iii) Upon the withdrawal of all amounts withdrawable pursuant
to Paragraphs 7.1(b)(i) and (ii), a Participant may withdraw part or all of the
accumulated income, gains and losses on his Participant After-Tax Account not
previously withdrawn.
The amount of accumulated income, gains and losses attributable to the
distribution of Participant after-tax contributions made after December 31,
1986, pursuant to Paragraph 7.1(b)(ii), shall be determined by multiplying the
sum distributed by a fraction, the numerator of which is the difference,
determined immediately before such distribution, between the value of the
post-1986 portion of the Participant After-Tax Account and the post-1986
Participant contributions, and the denominator of which is the value of the
post-1986 Participant After-Tax Account immediately before such distribution.
"Post-1986 Participant contributions" shall refer to Participant after-tax
contributions made after December 31, 1986, and "post-1986 Participant After-Tax
Account" shall refer to after-tax contributions made after December 31, 1986 and
the accumulated income, gains and losses thereon.
7.1A HARDSHIP DISTRIBUTION
A Participant may apply in writing to the Administrator for a hardship
withdrawal of part or all of his net distributable amount. The net distributable
amount is equal to the distributable amount, reduced by the amount of previous
distributions on account of hardship. The distributable amount is equal to the
sum of (i) the Participant's total Elective Deferrals as of the date of
distribution, (ii) income allocable to Elective Deferrals that is credited to
the Participant's Elective Deferral Account before the end of the last Plan Year
ending before July 1, 1989, (iii) amounts treated as Elective Deferrals that are
credited to the Participant's Account before the end of the last Plan Year
ending before July 1, 1989, and (iv) income allocable to amounts treated as
Elective Deferrals that is credited to the Participant's Account before the end
of the last Plan Year ending before July 1, 1989. The Administrator in its
discretion and in accordance with the provisions of this Section 7.1A shall
determine what portion or all of such vested Account Balance is necessary to
alleviate the hardship. A distribution is on account of hardship only if the
distribution both is made on account of an immediate and heavy financial need of
the Participant as determined in accordance with Subsection (a) below and is
necessary to satisfy such financial need as determined in accordance with
Subsection (b) below. The determination by the Administrator of the existence of
an immediate and heavy financial need and of the amount necessary to meet the
need shall be made in a nondiscriminatory and uniform manner. The determination
of hardship by the Administrator shall be final and binding.
(a) A distribution will be deemed to be made on account of an
immediate and heavy financial need of the Participant if the distribution is
for:
(i) expenses for medical care described in IRC section 213(d)
incurred by the Participant or necessary for the Participant to obtain medical
care described in IRC section 213(d);
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(ii) expenses for medical care described in IRC Section 213(d)
incurred by the Participant's spouse, or any dependents of the Participant (as
defined in IRC section 152), or necessary for these persons to obtain medical
care described in IRC section 213(d);
(iii) costs directly related to the purchase of a principal
residence for the Participant (excluding mortgage payments);
(iv) payments necessary to prevent the eviction of the
Participant from his principal residence or foreclosure on the mortgage of that
residence; or
(v) such other financial needs as prescribed by the
Commissioner of the Internal Revenue Service.
(b) A distribution will be deemed to be necessary to satisfy an
immediate and heavy financial need of a Participant if all of the following
requirements are satisfied:
(i) the distribution is not in excess of the amount of the
immediate and heavy financial need of the Participant. The amount of an
immediate and heavy financial need may include any amounts necessary to pay any
federal, state, or local income taxes or penalties reasonably anticipated to
result from the distribution;
(ii) the Participant has obtained all distributions, other
than hardship distributions, and all nontaxable (at the time of the loan) loans
currently available under all plans maintained by the Employer;
(iii) the Participant does not make an Elective Deferral for
his taxable year immediately following the taxable year of the hardship
distribution in excess of the $7,000 limit (adjusted for the cost of living) for
such next taxable year less the amount of such Participant's Elective Deferral
for the taxable year of the hardship distribution; and
(iv) the Participant does not make an Elective Deferral,
after-tax contribution or contribution to all other plans maintained by the
Employer for a 12-month period following the date of receipt of the hardship
distribution. For this purpose, the phrase "all other plans maintained by the
Employer" means all qualified and nonqualified plans of deferred compensation
maintained by the Employer. The phrase includes a stock option, stock purchase,
or similar plan, or a cash or deferred arrangement that is part of a cafeteria
plan within the meaning of IRC section 125. However, such phrase does not
include a health or welfare benefit plan, including one that is part of a
cafeteria plan.
If additional methods for distributions are prescribed by the
Commissioner of the Internal Revenue Service, such additional methods for
distributions are hereby incorporated by reference.
7.2 METHOD OF DISTRIBUTION OF EMPLOYER ACCOUNT
(a) The Participant shall elect to receive distribution of his
vested Accrued Benefit in one of the following forms: (a) a lump-sum
distribution, (b) an installment distribution consisting of
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approximately equal annual or more frequent installments (subject to the
limitations of Section 7.3) over a term certain, or (c) a Cash-Out.
(b) If an Employee terminates service, and the value of the Employee's
vested account balance derived from Employer and Employee contributions is not
greater than $3,500, the Employee will receive a distribution of the value of
the entire vested portion of such account balance and the nonvested portion will
be treated as a Forfeiture. A participant's vested account balance shall not
include accumulated deducible employee contributions within the meaning of IRC
section 72(o)(5)(B) for Plan Years beginning prior to January 1, 1989.
7.3 TIME OF DISTRIBUTION
(a) After the Participant has attained the Normal Retirement Age, has
died, or has terminated his employment, then the first installment, the lump-sum
payment or Cash-Out, as the case may be, shall be made no more than 90 days
after the end of the Plan Year in which the event occurs, or as soon thereafter
as administratively feasible. If the distribution is made prior to the time the
Participant attains the later of age 62 or the Normal Retirement Age under the
Plan, the Participant must consent to the distribution (in the manner described
in the following two paragraphs of this Subsection 7.3(a)), unless it is in the
form of an involuntary Cash-Out. If the distribution is delayed until the
Participant incurs a One Year Break in Service or is 100% vested, it shall be
made within 90 days of the occurrence of such event. However, in all events,
unless the Participant elects otherwise, such distributions shall begin no later
than 60 days after the end of the Plan Year in which occurs the latest of the
following:
(i) the date on which the Participant attains the earlier
of age 65 or the Normal Retirement Age;
(ii) the tenth anniversary of the year in which the
Participant commenced participation in the Plan; or
(iii) the Termination Date.
If the value of a Participant's vested account balance derived from
Employer and Employee contributions exceeds (or at the time of any prior
distribution exceeded) $3,500, and the account balance is immediately
distributable, the Participant must consent to any distribution of such account
balance. The consent of the Participant shall not be required to the extent that
a distribution is required to satisfy IRC section 401(a)(9) or IRC section 415.
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 IRC section 4975(e)(7)), the Participant's account 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 IRC section 4975(e)(7)), then the Participant's account balance will
be transferred, without the
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Participant's consent, to the other plan if the Participant does not consent to
an immediate distribution.
An account balance is immediately distributable if any part of the
account balance could be distributed to the Participant (or surviving spouse)
before the Participant attains or would have attained (if not deceased) the
later of Normal Retirement Age or age 62.
For purposes of determining the applicability of the foregoing consent
requirements to distributions made before the first day of the first Plan Year
beginning after December 31, 1988, the Participant's vested account balance
shall not include amounts attributable to accumulated deductible employee
contributions within the meaning of IRC section 72(o)(5)(B).
(b) If distributions are made in installments rather than a lump-sum
distribution or a Cash-Out, then (i) the installments must be over a period of
10 years or less or (ii) the amount of the installment to be distributed each
year must be at least an amount equal to the quotient obtained by dividing the
Participant's entire interest by the life expectancy of the Participant or the
joint and last survivor expectancy of the Participant and his designated
beneficiary. 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.
The terms of any annuity contract purchased and distributed by the
Plan to a Participant or spouse shall comply with the requirements of this Plan.
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 IRC section 401(a)(9) and the proposed
regulations thereunder.
(c) If the Participant dies after distributions to him have begun but
before his entire Accrued Benefit has been distributed to him, the remaining
portion of his Accrued Benefit shall be distributed from the Plan at least as
rapidly as under the method of distribution previously established for him, if
such method was irrevocable at the time of his death.
(d) If the Participant dies before distribution of his interest
commences, then distributions of the Participant's remaining Accrued Benefit
must be completed by the end of the fifth calendar year following the year of
his death. However, installment distributions to a designated beneficiary which
begin not later than the end of the calendar year following the death of the
Participant shall be treated as complying with this 5 year distribution
requirement (even though the installment payments are not completed within 5
years of the Participant's death) if the distributions are made at a rate which
is not longer than that calculated (in the manner described in Subsection (b) of
this Section 7.3) to provide payment of all the Participant's Accrued Benefit
during the anticipated life expectancy of the designated beneficiary. Provided
that if the designated beneficiary is the surviving spouse of the deceased
Participant, the distributions can begin as long after the Participant's death
as the date on which the deceased Participant would have attained the age of
70-1/2. If the surviving spouse dies
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after the Participant, but before payments to such spouse begin, the provisions
of this Subsection (d) shall be applied as if the surviving spouse were the
Participant.
If the Participant has not made an election pursuant to this
Subsection (d) 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 Subsection, 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.
(e) For purposes of this Section 7.3, any amount paid to a child of a
Participant will be treated as if it had been paid to the surviving spouse of
the Participant if such remaining amount becomes payable to the surviving spouse
when the child reaches the age of majority.
(f) For the purposes of Section 7.3, distribution of a Participant's
interest is considered to begin on the Participant's required beginning date
(or, if Subsection 7.3(d) above is applicable, the date distribution is required
to begin to the surviving spouse pursuant to Subsection 7.3(d)). 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.
(g) Definitions.
(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.
(ii) "Designated Beneficiary." The individual who is
designated as the beneficiary under the Plan in accordance with IRC section
401(a)(9) 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 Subsection 7.3(d) above.
(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 Treasury Regulations section
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1.72-9, or, in the case of payments under a contract issued by an insurance
company, by use of the life expectancy tables of the insurance company.
Unless otherwise elected by the Participant (or spouse, in the
case of distributions described in Subsection 7.3(d)) 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."
(1) The account balance as of the last valuation date in the calendar year
immediately preceding the distribution calendar year (valuation calendar year)
increased by the amount of any contributions or forfeitures allocated to the
account balance as of dates in the valuation calendar year after the valuation
date and decreased by distributions made in the valuation calendar year after
the valuation date.
(2) For purposes of Subparagraph (1) above, if any portion of the
minimum distribution for the first distribution calendar year is made in the
second distribution calendar year on or before the required beginning date, the
amount of the minimum distribution made in the second distribution calendar year
shall be treated as if it had been made in the immediately preceding
distribution calendar year.
(vi) "Required beginning date."
(1) 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.
(2) The required beginning date of a Participant who attains age 70-1/2
before January 1, 1988, shall be determined in accordance with (A) or (B) below:
(A) 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.
(B) 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:
(I) the calendar year in which the Participant attains age
70-1/2, or
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(II) 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.
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.
(3) 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
IRC section 416(i) (determined in accordance with IRC section 416 but without
regard to whether the Plan is top-heavy) at any time during the Plan Year in
which such owner attains age 66-1/2 or any subsequent Plan Year.
(4) 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.
7.4 SEGREGATION IF INSTALLMENT DISTRIBUTION
The Administrator may determine that the Employer and Participant
Accounts of a Participant who is no longer an Employee shall be segregated and
set aside, in which event the Administrator shall direct the Trustee to
segregate the vested portion (as defined in Article VI) of the entire balance of
the Participant's Employer Account and Participant Deferral Account, if
applicable, and to deposit such portion in a separate interest bearing account
at a bank or savings and loan association, and said account shall cease to
participate in the income or net loss or appreciation or depreciation of the
Trust Fund, as of the beginning of the Plan Year in which such segregation
occurs, and instead will be credited with the full amount of interest earned
thereon.
7.5 NON-SEGREGATION IF INSTALLMENT DISTRIBUTION
In the event the Administrator does not segregate (as provided in
Section 7.4) the Employer Account and Participant Deferral Account, if
applicable, of a Participant, said account shall continue to be treated, without
interruption, in the same manner as when the Participant was an Employee, in
which case the installment distributions shall be adjusted upward or downward to
reflect appreciation or depreciation, or income or loss in the account balance.
7.6 DISTRIBUTION AFTER DEATH OF PARTICIPANT
In the event of the death of a Participant after installment payments
have begun, but prior to completion of such payments, the full amount of such
unpaid benefits shall continue to be paid in the form of the previously
established installments except that the Beneficiary may request that the
remaining Accrued Benefit be paid in a lump sum.
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In the event of the death of the Participant prior to the start of any
payment of his Accrued Benefit, distributions shall be made in the form and at
the time or times selected by the Beneficiary pursuant to Sections 7.2 and 7.3.
7.7 DISTRIBUTION AFTER DEATH OF BENEFICIARY
In the event of the death of a Beneficiary (or a contingent
Beneficiary, if applicable) prior to the completion of payment of benefits due
the Beneficiary from the Plan, the full amount of such unpaid benefits shall at
once vest in and become the property of the estate of said Beneficiary. In
determining the amount of such unpaid benefits, no adjustment shall be made by
reason of any net income, or net loss, of the Trust, or any net appreciation or
net depreciation by the Trust's assets subsequent to the beginning of the Plan
Year in which such final distribution occurs.
7.8 DIRECT ROLLOVER
Notwithstanding any other provision of the Plan, the Administrator
shall advise any distributee entitled to receive an eligible rollover
distribution, at the same time as any notice required to be given pursuant to
Article VII (or such other time as is permitted by law) of his right to elect a
direct rollover to an eligible retirement plan, pursuant to the provisions of
this Section. To elect a direct rollover the distributee must request in writing
to the Administrator that all or a specified portion of the eligible rollover
distribution be transferred directly to an eligible retirement plan. If more
than one direct rollover distribution will be made, the notice specified in the
first sentence of this Section must state that the distributee's initial
election to make or not to make a direct rollover will remain in effect unless
he gives the Administrator written instructions to change the election, in which
case the new election will remain in effect until changed.
For purposes of this Section, the following definitions shall apply:
(a) A "direct rollover" is a payment by the Plan to the eligible
retirement plan specified by the distributee.
(b) A "distributee" includes an Employee or former Employee. In
addition, the Employee's or former Employee's surviving spouse and the
Employee's (or former Employee's) spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in IRC section
414(p), are distributees with regard to the interest of the spouse or former
spouse.
(c) An "eligible retirement plan" is a retirement plan which meets the
requirements of IRC section 401(a), an annuity described in IRC section 403(a),
an individual retirement account described in IRC section 408(a), or an
individual retirement annuity (other than an endowment contract) described in
IRC section 408(b), the terms of which permit the acceptance of a direct
rollover of the distributee's eligible rollover distribution. However, in the
case of an eligible rollover distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account or an individual retirement
annuity. The Administrator may establish reasonable procedures for ascertaining
that the eligible retirement plan meets the preceding requirements.
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(d) An "eligible rollover distribution" is any distribution from this
Plan on or after January 1, 1993 of all or any portion of the balance to the
credit of the distributee, except for distributions (or portions thereof) which
are--
(i) Part of a series of substantially equal periodic payments
(not less frequently than annually) made over the life of the Employee (or the
joint lives of the Employee and the Employee's designated beneficiary), the life
expectancy of the Employee (or the joint life and last survivor expectancy of
the Employee and the Employee's designated beneficiary), or a specified period
of ten years or more;
(ii) Required under IRC section 401(a)(9) (relating to the
minimum distribution requirements); or
(iii) The portion of any distribution that is not includable
in gross income (determined without regard to the exclusion for net unrealized
appreciation in employer securities described in IRC section 402(e)(4)).
7.9 SUSPENSE ACCOUNT FOR TERMINATED PARTICIPANTS
If a Participant has terminated his employment but his Employer
Account is not 100% vested and he has not had 5 consecutive One Year Breaks in
Service subsequent to his termination, all funds in his Employer Account shall
be held in suspense until the happening of the soonest of the following: (i) the
Participant returning to employment with the Employer, or (ii) the occurrence of
5 consecutive One Year Breaks in Service with respect to the Participant, or
(iii) the Participant attaining Normal Retirement Age. At such time the
Participant's Employer Account shall cease to be held in suspense. If a
Participant has returned to employment prior to incurring 5 consecutive One Year
Breaks in Service, his Employer Account which has been held in suspense shall be
restored to his credit. If 5 consecutive One Year Breaks in Service occur, the
non-vested portion of the Employer Account held in suspense will be forfeited
and reallocated in accordance with Section 4.2 for the Plan Year in which such
Forfeiture occurs; the vested portion shall be distributed in accordance with
the provisions of Article VII. In the case of a Participant attaining Normal
Retirement Age while his Employer Account is being held in suspense, the entire
amount will be distributed in accordance with the provisions of Article VII.
Such suspense account shall share in any appreciation, depreciation,
or net income or loss as if it were not in suspense, except that an account
which is in suspense shall have no Forfeitures allocated to it for a Plan Year
in which the Employee does not have a Year of Service for Accrual of Benefits.
Notwithstanding anything contained in this Section 7.9 to the
contrary, upon the payment of a Participant's vested Accrued Benefit through a
Cash-Out, the non-vested portion of such Participant's Accrued Benefit shall be
immediately forfeited and shall be reallocated for the Plan Year in accordance
with Section 4.2.
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If an Employee terminates service, and elects, in accordance with the
requirements of Subsection 7.3(a), to receive the value of the Employee's vested
account balance, the nonvested portion will be treated as a Forfeiture. If the
Employee elects to have distributed less than the entire vested portion of the
account balance derived from Employer contributions, the part of the nonvested
portion that will be treated as a Forfeiture (which will be reallocated for the
Plan Year in accordance with Section 4.2) is the total nonvested portion
multiplied by a fraction, the numerator of which is the amount of the
distribution attributable to Employer contributions and the denominator of which
is the total value of the vested Employer derived account balance.
7.10 UNABLE TO LOCATE PARTICIPANT OR BENEFICIARY
If the Participant or Beneficiary to whom benefits are to be
distributed cannot be located, and reasonable efforts have been made to find
him, including the sending of notification by certified or registered mail to
his last known address, the Administrator may direct the Trustee to take any of
the following actions:
(i) Distribute the benefits in question to an interest bearing savings
account established in the name of the Participant or Beneficiary; or, if the
benefits are payable to a Participant (as reasonably determined by the
Administrator) the Administrator may instruct the Trustee to distribute the
funds to the Participant by placing them in a savings account in the
Participant's name or by purchasing U.S. Savings Bonds in the Participant's name
and holding them for the Participant;
(ii) If the Administrator has taken the reasonable efforts to locate
the Participant, the Administrator may allocate the Participant's Accrued
Benefits to a segregated account in the manner described in Section 7.4, as if
an installment distribution were being made; however, such funds shall be held
in the segregated account for distribution to the Participant when located;
(iii) The Participant's Accrued Benefits may be forfeited and
reallocated pursuant to Section 4.2; if a benefit is forfeited because the
Participant or Beneficiary cannot be found, such benefit will be reinstated if a
claim is made by the Participant or Beneficiary, and such benefit shall be
reinstated first out of Forfeitures, if any, and then by additional Employer
contributions.
7.11 REPAYMENT OF CASH-OUT
If an Employee receives a distribution pursuant to Section 7.2 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 first date on which the participant is subsequently re-employed
by the Employer, or the date the participant incurs 5 consecutive One Year
Breaks in Service following the date of the distribution. The permissible
sources of restoration of the forfeited portion of a Cash-Out distribution are
Forfeitures and Employer contributions.
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7.12 QUALIFIED DOMESTIC RELATIONS ORDERS
Notwithstanding any other provisions of Article VII, any Accrued
Benefit of a Participant may be apportioned between the Participant and the
alternate payee (as defined in IRC section 414(p)(8)) either through separate
Accounts or by providing the alternate payee a percentage of the Participant's
Account. The Administrator may direct distributions to an alternate payee
pursuant to a qualified domestic relations order as defined in IRC section
414(p)(1)(A) prior to the date on which the Participant attains the earliest
Retirement Age, provided that the Administrator has properly notified the
affected Participant and each alternate payee of the order and has determined
that the order is a qualified domestic relations order as defined in IRC section
414(p)(1)(A). The alternate payee shall be paid his separate Account or his
percentage of the Participant's Account, computed as of the valuation date
described in Section 5.3, in a lump sum payment notwithstanding the value of
such lump sum payment unless the domestic relations order specifies a different
manner of payment permitted by the Plan; the alternate payee shall not be
required to consent to such lump sum payment. The Administrator shall adopt
reasonable procedures to determine the qualified status of domestic relations
orders and to administer the distributions thereunder.
ARTICLE VIII
DUTIES AND AUTHORITY OF TRUSTEE
8.1 RECEIVE PAYMENTS
The Trustee shall receive from the Employer the payments made by it on
account of its contributions under the Plan, and made by Participants, if any,
but the Trustee shall have no duty to compute any amount due from the Employer
or to collect the same.
8.2 VALUE ASSETS
The Trustee shall value the assets of the Trust Fund as of the close
of the last day of each Plan Year at their fair market value and the
Administrator or its agent will allocate the sums contributed by the Employer
and by Participants, if any, plus the net income or minus the net loss of the
Trust Fund and plus the net appreciation or minus the net depreciation in the
Trust Fund to separate bookkeeping accounts in the names of the respective
Participants under the Plan in accordance with the provisions of Article V.
8.3 SEGREGATION OF ACCOUNTS
When directed in writing by the Administrator, the Trustee shall
segregate the accounts of terminated Participants in accordance with the
provisions of Section 7.4, and make payments out of the Trust Fund from time to
time to the Participants or their Beneficiaries, such payments to be made in the
manner and in the amounts as may be specified in the written instructions of the
Administrator.
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8.4 TAX RETURNS AND REPORTS
If the Trustee is a corporate fiduciary, then such Trustee shall
prepare or cause to have prepared and filed, all tax returns, reports, and
related documents, except as otherwise specifically provided in this Plan or
unless the Administrator, in writing, relieves the Trustee of such obligation,
in part or entirely, in which case the Administrator, or the person or persons
it designates, shall be responsible for filing the tax returns, reports, and
related filings, as provided by the Administrator. The Trustee shall be entitled
to rely on the accuracy of any written statement from the Administrator or from
an officer of the Employer as to those matters provided in Article IX.
8.5 POWERS
The Trustee is authorized and empowered to:
(a) Invest and reinvest the Trust Fund, without distinction between
principal and income, in bank accounts, certificates of deposit, common stocks,
preferred stocks, bonds, notes, debentures, mortgages, U.S. retirement plan
bonds, and in other property, real or personal, so long as the incidents of
ownership of such property are within the jurisdiction of the United States, and
so long as such investments do not violate applicable law;
(b) Sell, exchange, convey, transfer, or otherwise realize the
value of any property held by it;
(c) Convert any stocks, bonds, or other securities; to give general or
special proxies or powers of attorney with or without power of substitution; to
exercise any warrants, conversion privileges, subscription rights, or other
options and to make any payment incidental thereto; to consent to or otherwise
participate in corporate reorganizations or other changes affecting corporate
securities and to delegate discretionary powers to pay any assessments or
charges in connection therewith; and generally to exercise any of the powers of
an owner with respect to stocks, bonds, securities or other properties held in
the Trust Fund;
(d) Make, execute, acknowledge, and deliver any and all documents
of transfer and conveyance and any other instruments that may be necessary or
appropriate to carry out the powers herein granted;
(e) Register any investments held in the Trust Fund in its own name or
in the name of a nominee or nominees and to hold any investment in bearer form,
but the books and records of the Trustee shall at all times show that all such
investments are part of the Trust Fund;
(f) Invest all or a part of the Trust Fund in deposits which bear a
reasonable rate of interest in a bank or similar financial institution, even
though such institution is a Trustee or other fiduciary, as defined in IRC
section 4975(e)(3);
(g) Invest in a common or collective trust fund or pooled investment
fund maintained by a bank or trust company or a pooled investment fund of an
insurance company qualified to do business
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in a State even though such bank, trust company or insurance company is a
disqualified person, as defined in IRC section 4975(e)(2);
(h) Make distributions to Participants or Beneficiaries in cash,
insurance policies or any other property;
(i) Perform all such acts, although not specifically mentioned
herein, as the Trustee may deem necessary to administer the Trust Fund and to
carry out the purpose of the Trust; and
(j) Borrow or loan sums, except as prohibited by IRC section 4975(c)
(without reference to IRC section 4975(d) ), as the Trustee deems desirable, and
for that purpose, to mortgage or pledge all or part of the Trust Fund.
8.6 EXPENSES
At the option of the Employer, all brokerage costs, transfer taxes and
similar expenses incurred in connection with the investment and reinvestment of
the Trust Fund and all taxes of any kind whatsoever which may be levied or
assessed under existing or future laws upon or in respect of the Trust Fund, and
any interest which may be payable on money borrowed by the Trustee for the
purpose of the Trust, shall be paid from the Trust Fund, and, until paid, shall
constitute a charge upon the Trust Fund. All other administrative expenses
incurred by the Trustee in the performance of its duties, including such
compensation to the Trustee as may be agreed upon from time to time between the
Employer and the Trustee and all proper charges and disbursements of the
Trustee, may be paid by the Employer, and if not paid by the Employer, shall be
paid from the Trust Fund, and until paid shall constitute a charge upon the
Trust Fund. However, no person who is a disqualified person (as defined in IRC
section 4975(e)(2)) and who received full-time pay from the Employer, may
receive compensation from the Trust, except for reimbursement of expenses
properly and actually incurred.
The Trustee may inspect the records of the Employer whenever such
inspection may be reasonably necessary in order to determine any fact pertinent
to the performance of its duties as the Trustee. The Trustee, however, shall not
be required to make such inspection, but may, in good faith, rely on any
statement of the Employer or any of its officers.
8.7 LITIGATION
The Trustee shall not be required to participate in any litigation
either for the collection of monies or other property due the Trust Fund, or in
defense of any claim against the Trust Fund unless the Trustee shall have been
indemnified to its satisfaction against all expenses and liability to which the
Trustee might become subject.
8.8 WRITTEN INSTRUCTIONS
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When any act of the Trustee is based upon instructions of the Employer
or the Administrator, the Trustee may rely upon instructions in writing, signed
by an officer of the Employer, or upon written instructions from the
Administrator or the Plan Administrator, as appropriate.
8.9 APPOINTMENT OF INVESTMENT MANAGER
The Trustee, with the written concurrence of the Administrator, may
appoint one or more Investment Managers (as defined in ERISA section 3(38)), who
shall have responsibility for investment of the Trust Fund. The Investment
Manager shall have the investment powers granted the Trustee in Section 8.5
except to the extent the Investment Manager's powers are specifically limited by
an agreement between the Trustee and Investment Manager, or between the Employer
and the Investment Manager.
8.10 REMOVAL AND RESIGNATION OF THE TRUSTEE
The Employer may at any time and upon 30 days written notice remove
any Trustee acting hereunder or appoint a corporation and/or an individual or
individuals to be successor Trustee hereunder in the place of any removed or
resigning Trustee. Any Trustee may at any time resign by giving written notice
to the Employer, which resignation shall take effect on the date therein
specified and which shall not be less than 30 days from the date of notice
unless the Employer shall agree to an earlier date.
8.11 INDIVIDUAL CHOICE ACCOUNTS
Notwithstanding Section 5.2, and in accordance with reasonable
procedures established by the Administrator, a Participant may at any time
instruct the Trustee in writing that he wishes to have part or all of the funds
in his Employer Account and/or Participant Deferral Account invested in assets
of such Participant's own choosing other than "collectibles" as defined in IRC
section 408(m). After such notification the Participant may, from time to time,
place an order or orders for the assets the Participant desires to have
purchased for his Employer Account and/or Participant Deferral Account.
Subsequent investments in the Employer and/or Participant Deferral Account, as
applicable, shall be made by the Participant, and shall be paid for with funds
from the appropriate account of the Participant and shall be delivered directly
to the Trustee. Notwithstanding the preceding, the Administrator can establish
reasonable rules limiting the investment discretion of a Participant. Accounts
which have been individually directed will be segregated for the purpose of
allocating earnings and expenses pursuant to Section 5.3. All expenses incurred
pursuant to a Participant's directing investments, including brokerage fees,
state and federal income taxes arising from unrelated business taxable income
and any other incidental expenses shall be paid solely with funds from the
accounts of such Participant. Neither the Trustee nor the Administrator will be
held liable for the Participant's investment choice, so long as the investment
is made in accordance with this Section 8.11.
8.12 ACQUISITION OF QUALIFYING EMPLOYER SECURITIES AND REAL PROPERTY
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The Trust Fund is permitted to acquire and hold "qualifying Employer
securities" as defined in Section 407(d)(5) of ERISA, provided, however, that
the Trust Fund shall not be permitted to acquire any qualifying Employer
securities if, immediately after the acquisition of such securities, the fair
market value of all qualifying Employer securities held by the Trust Fund should
amount to more than 100% of the fair market value of all assets in the Trust
Fund. To the extent that Plan participants are permitted to direct the
investment of their accounts among qualifying employer securities in accordance
with Section 8.11 of the Plan, the Administrator is authorized to develop
administrative procedures governing the investment of such qualifying employer
securities as it deems necessary or appropriate for the effective administration
of the Plan and to ensure that the Plan and the Trust Fund comply with all
applicable laws governing the acquisition, holding and disposition of qualifying
employer securities.
ARTICLE IX
DUTIES AND AUTHORITY OF ADMINISTRATOR
9.1 APPOINTMENT
This Plan shall be administered by an Administrator, which shall be
the Employer. The Employer at any time, however may appoint an Administrative
Committee to administer the Plan, which shall consist of at least 2 but not more
than 3 persons appointed by the board of directors of the Employer, who shall
signify in writing their acceptance of such appointment. Any member of the
Administrative Committee may resign upon giving written notice to the board of
directors of the Employer. Each appointee shall hold office at the pleasure of
the board of directors of the Employer. Members of the board of directors of the
Employer may be appointed members of the Administrative Committee. Vacancies
arising in the Administrative Committee from death, resignation, removal or
otherwise, shall be filled by the board of directors of the Employer, but the
Administrative Committee may act notwithstanding the existence of vacancies so
long as there is at least one member of the Administrative Committee.
9.2 NO DISCRIMINATION
The Administrator shall not take any action nor direct the Trustee to
take any action that would result in benefiting one Participant or group of
Participants at the expense of another, or discriminating between Participants
similarly situated, or applying different rules to substantially similar sets of
facts.
9.3 MAJORITY ACTION
The Administrative Committee, if any, shall act by a majority (or by
all members if there are less than three members) of the number of members
constituting the Administrative Committee at the time of such action, and such
action may be taken either by vote at a meeting or in writing without a meeting.
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9.4 POWERS
Except as otherwise provided in the Plan, the Administrator shall have
control of the administration of the Plan, with all powers necessary to enable
it to carry out its duties in that respect. Not in limitation, but in
amplification of the foregoing, the Administrator shall have power to interpret
or construe the Plan and to determine all questions that may arise hereunder as
to the status and rights of Participants and others hereunder. The Administrator
shall have the right, exercisable at any time by delivery to the Trustee of an
instrument in writing, to instruct or direct the Trustee with respect to the
investment of the Trust Fund. The Administrator may inspect the records of the
Employer or Trustee whenever such inspection may be reasonably necessary in
order to determine any fact pertinent to the performance of the duties of the
Administrator. The Administrator, however, shall not be required to make such
inspection, but may, in good faith, rely on any statement of the Trustee or
Employer or any of its officers or employees.
9.5 FILING REPORTS
The Administrator shall furnish, or shall see that the Employer
furnishes, a summary of this Plan to all Employees, as required by applicable
Federal law. The Administrator shall furnish to the Trustee the names of all
Employees who become eligible as Participants, and the Administrator shall
notify each Employee of his eligibility.
9.6 RECORDS AND INFORMATION
The Administrator shall keep a complete record of all its proceedings
and all data necessary for the administration of the Plan.
9.7 INFORMATION TO PARTICIPANTS
The Administrator shall direct the maintenance of separate accounts of
the Participants. It shall give each Participant, at least once every year,
information as to the balance of his Employer Account and Participant Deferral
Account, if applicable.
9.8 COMPENSATION OF MEMBERS
The members of the Administrative Committee, if any, shall serve
without compensation for their services as such, but shall be reimbursed by the
Employer for all necessary expenses incurred in the discharge of their duties.
If the Employer advises the Administrative Committee in writing of its
determination to make no further contributions to the Plan, the expenses of the
Administrative Committee shall thereafter be charged against and paid out of the
Trust Fund and a lien for the payment thereof shall be impressed upon the assets
of the Trust to be charged proportionately against the amount standing to the
credit of each Participant.
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9.9 REVIEW OF PARTICIPANT'S CLAIMS
In case the claim of any Participant or Beneficiary for benefits under
the Plan is denied, the Administrator shall provide adequate notice in writing
to such claimant, setting forth the specific reasons for such denial. The notice
shall be written in a manner calculated to be understood by the claimant. The
Administrator shall afford a Participant or Beneficiary, whose claim for
benefits has been denied, 60 days from the date notice of such denial is
delivered or mailed in which to appeal the decision in writing to the
Administrator. If the Participant or Beneficiary appeals the decision in writing
within 60 days, the Administrator shall review the written comments and any
submissions of the Participant or Beneficiary and render its decision regarding
the appeal, all within 60 days of such appeal.
ARTICLE X
MODIFICATIONS FOR TOP-HEAVY PLANS
10.1 APPLICATION OF ARTICLE
The provisions in this Article X shall take precedence over any other
provisions in the Plan with which they conflict.
10.2 DEFINITIONS
(a) "Key employee." Any Employee or former Employee (and the
beneficiaries of such employee) who at any time during the determination period
was an officer of the Employer if such individual's annual compensation exceeds
50% of the dollar limitation under IRC section 415(b)(1)(A), an owner (or
considered an owner under IRC section 318) of one of the ten largest interests
in the employer if such individual's compensation exceeds 100% of the dollar
limitation under IRC section 415(c)(1)(A), a five-percent owner of the employer,
or a one-percent owner of the employer who has an annual compensation of more
than $150,000. Annual compensation means compensation as defined in IRC section
415(c)(3), but including amounts contributed by the employer pursuant to a
salary reduction agreement which are excludable from the employee's gross income
under IRC section 125, section 402(a)(8), section 402(h) or section 403(b). The
determination period is the Plan Year containing the determination date and the
four preceding Plan Years.
The determination of who is a key employee will be made in accordance
with IRC section 416(i)(1) and the regulations thereunder.
(b) "Top-heavy plan." For any Plan Year beginning after December 31,
1983, this Plan is top-heavy if 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.
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(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 group of plans 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%.
(c) "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 five-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 five-year period ending on the
determination date(s)), and the denominator of which is the sum of all account
balances (including any part of any account balance distributed in the five-year
period ending on the determination date(s)), both computed in accordance with
IRC section 416 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 IRC section 416 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 five-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 all account balances under the aggregated defined contribution plan or
plans for all key employees, determined in accordance with Paragraph (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 the account balances under the aggregated
defined contribution plan or plans for all Participants, determined in
accordance with Paragraph (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 IRC section 416 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 Paragraphs (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 IRC section 416
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 five-year period ending on the
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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 IRC section 416 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 (a) the method, if any, that uniformly applies for accrual
purposes under all defined benefit plans maintained by the employer, or (b) 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 IRC section
411(b)(1)(C).
(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 IRC sections 401(a)(4) and 410.
(e) "Required aggregation group." (i) Each qualified plan of the
employer in which at least one key employee participated at any time during the
determination period (regardless of whether the plan has terminated), and (ii)
any other qualified plan of the employer which enables a plan described in (i)
to meet the requirements of IRC sections 401(a)(4) or 410.
(f) "Determination date." For any Plan Year subsequent to the first
Plan Year, the last day of the preceding Plan Year. For the first year of the
Plan, the last day of that year.
(g) "Non-key employee." Any Employee who is not a key employee.
10.3 ACCELERATED VESTING
Unless the Plan provides for full and immediate vesting of Employer
and Participant Deferral Accounts upon participation, then for any Plan Year in
which this Plan is deemed to be a top-heavy plan, the vesting schedule contained
in Section 6.3 shall apply but the vesting Schedule contained in Section 6.3 may
be not be modified to provide any less generous vesting schedule than as
follows:
Total Service for Vesting
(excluding Years of Service
prior to effective date of
this Plan) Vested percentage
less than 2 years 0%
2 years 20%
3 years 40%
4 years 60%
5 years 80%
6 years or more 100%
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Should this Plan not be deemed to be a top-heavy plan after previously
being so categorized, the vesting schedule contained in Section 6.3 shall again
be effective except that the vested percentage attained by Participants shall
not be reduced thereby and Participants with 3 or more Years of Service for
Vesting shall have the right to select the vesting schedule under which their
vested Accrued Benefit will be determined.
10.4 MINIMUM CONTRIBUTIONS
For any Plan Year in which this Plan is determined to be a top-heavy
plan, either (i) a minimum Employer contribution shall be made, pursuant to this
Plan or another defined contribution plan maintained by the Employer, to the
account of each non-key employee (except those who are separated from service
with the Employer at the end of the Plan Year), or (ii) a minimum non-integrated
benefit must be provided to each non-key employee (except those who are
separated from service with the Employer at the end of the Plan Year), pursuant
to a defined benefit plan maintained by the Employer.
For the purposes of the first sentence of this Section 10.4, the
minimum Employer contribution provided to each non-key employee (except those
who are separated from service with the Employer at the end of the Plan Year)
shall be equal to 3% of such non-key employee's annual compensation. If,
however, the Employer contribution, under this and any other defined
contribution plan required to be included in the permissive or required
aggregation group and maintained by the Employer, for any key employee for such
Plan Year is less than 3% of such key employee's total annual compensation not
in excess of $200,000 (for Plan Years beginning before 1989), then, the Employer
contribution to each Participant (except those who are separated from service
with the Employer at the end of the Plan Year) shall equal the amount which
results from multiplying such Participant's annual compensation times the
highest contribution rate of any key employee covered by the Plan.
For the purposes of the first sentence of this Section 10.4, the
minimum non-integrated benefit provided by the Employer to each non-key employee
(except those who are separated from service with the Employer at the end of the
Plan Year) is an amount, which when expressed as an annual retirement benefit,
shall be no less than 2% of such non-key employee's average annual compensation
for his 5 highest consecutive years of service, multiplied by the Employee's
years of service with the Employer, not to exceed 10 years. For the purposes of
the preceding sentence, years of service with the Employer shall not include
years of service completed during any Plan Year which begins before January 1,
1984, or years of service completed during a Plan Year for which the Plan is not
a top-heavy plan. For the purposes of this Section 10.4, the minimum benefit
provided above shall be computed in the form of a single life annuity, with no
ancillary benefits, beginning at Normal Retirement Age.
The minimum allocation required (to the extent required to be
nonforfeitable under IRC section 416(b)) may not be forfeited under IRC section
411(a)(3)(B) or 411(a)(3)(D).
For the purposes of the first sentence of this Section 10.4, the
Employer contribution under this and any other defined contribution plan
required to be included in the permissive or required
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aggregation group and maintained by the Employer, for any key employee for such
Plan Year, but not for any non-key Employee for such Plan Year, shall include
any elective deferral contribution under Section 4.1A.
10.5 LIMITATION ON COMPENSATION TAKEN INTO ACCOUNT
UNDER PLAN
For any Plan Year prior to Plan Years beginning before January 1,
1989, in which this Plan is deemed to be a top-heavy plan the definition of
annual compensation contained in Subsection 10.2(a) shall exclude amounts in
excess of $200,000.
10.6 MODIFICATION OF DEFINED BENEFIT AND DEFINED
CONTRIBUTION FRACTION
For any Plan Year in which the Plan is deemed to be a top-heavy plan,
the denominators of the defined benefit fraction and the defined contribution
fraction contained in Subsection 5.4(d) shall be deemed to be modified by
substituting 100% for 125%. Notwithstanding the above, if this Plan would not be
deemed to be a top-heavy plan if 90% were substituted for 60% in Subsection
10.2(b) and if the Employer provides benefits and/or makes contributions to the
Employer Accounts of non-key employees who participate in defined benefit and/or
defined contribution plans maintained by the Employer, in amounts at least equal
to that which would be required by Section 10.4 after substituting 4% for 3% in
the second paragraph thereof, and by substituting 3% for 2% in the third
paragraph thereof, then the reduction in the defined benefit fraction and the
defined contribution fraction as set forth in the preceding sentence, shall not
be made.
ARTICLE XI
AMENDMENT AND TERMINATION
11.1 RIGHTS TO SUSPEND OR TERMINATE PLAN
It is the present intention of the Employer to maintain this Plan
throughout its corporate existence. Nevertheless, the Employer reserves the
right, at any time, to discontinue or terminate the Plan, to terminate the
Employer's liability to make further contributions to this Plan, to suspend
contributions for a fixed or indeterminate period of time. In any event, the
liability of the Employer to make contributions to this Plan shall automatically
terminate upon its legal dissolution or termination, upon its adjudication as a
bankrupt, upon the making of a general assignment for the benefit of creditors,
or upon its merger or consolidation with any other corporation or corporations.
11.2 SUCCESSOR CORPORATION
In the event of the termination of the liability of the Employer to
make further contributions to this Plan, the Employer's liability may be assumed
by any other corporation or organization which employs a substantial number of
the Participants of this Plan. Such assumption of liability shall be
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expressed in an agreement between such other corporation or organization and the
Trustee under which such other corporation or organization assumes the
liabilities of this Trust with respect to the Participants employed by it.
11.3 AMENDMENT
To provide for contingencies which may require the clarification,
modification, or amendment of this Plan, the Employer reserves the right to
amend this Plan at any time.
No amendment to the Plan shall be effective to the extent that it has
the effect of decreasing a Participant's Accrued Benefit. Notwithstanding the
preceding sentence, a Participant's account balance may be reduced to the extent
permitted under IRC section 412(c)(8). For purposes of this paragraph, a Plan
amendment which has the effect of decreasing a Participant's account balance or
eliminating an optional form of benefit, with respect to benefits attributable
to service before the amendment shall be treated as reducing an Accrued Benefit.
Furthermore, if the vesting schedule of the Plan is amended, in the case of an
employee who is a Participant as of the later of the date such amendment is
adopted or the date it becomes effective, the nonforfeitable percentage
(determined as of such date) of such employee's Employer derived Accrued Benefit
will not be less than the percentage computed under the Plan without regard to
such amendment.
Each Participant having at least three Years of Service for Vesting at
the time of the adoption of any amendment changing any vesting schedule under
the Plan, or prior to the end of the election period set forth by this
paragraph, shall have the right to elect at any time, but no later than 60 days
after the later of (a) the date the amendment is adopted, (b) the date on which
the amendment is effective, or (c) the date on which the Participant is given
written notice of the amendment, to have his vested percentage computed under
the Plan without regard to such amendment.
11.4 100% VESTING ON TERMINATION OF PLAN
Upon termination or partial termination of the Plan and Trust by
formal action of the Employer or for any other reason, or if Employer
contributions to the Plan and Trust are permanently discontinued for any reason,
there shall be vested 100% in each Participant directly affected by such action
the amount allocated to the accounts of each such Participant, and payment to
such Participant shall be made in cash or in kind as soon as practicable after
liquidation of the assets of the Trust; provided, however, that an amount may
only be distributed if the Employer does not maintain or establish another
defined contribution plan at the time the Plan is terminated or within the 12
month period ending after distribution of all assets from the Plan, other than
an employee stock ownership plan (as defined in IRC section 4975(e) or IRC
section 409), a Simplified Employee Pension Plan as defined in IRC section
408(k), or a defined contribution plan if fewer than 2% of the Employees who are
eligible under the Plan at the time of its termination are or were eligible
under such other defined contribution plan at any time during the 24 month
period beginning 12 months before the time of the termination. In addition,
distributions made after March 31, 1988 on account of the termination of the
Plan must be made in a lump sum (as defined in Treasury Regulation section
1.401(k)-1(d)(5)).
11.5 PLAN MERGER OR CONSOLIDATION
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In the case of any merger or consolidation with, or transfer of any
assets or liabilities to, any other plan, each Participant in this Plan must be
entitled to receive (if the surviving plan is then terminated) a benefit
immediately after the merger, consolidation, or transfer which is equal to or
greater than the benefit he would have been entitled to receive immediately
before the merger, consolidation, or transfer (if this Plan had terminated).
ARTICLE XII
MISCELLANEOUS
12.1 LAWS OF FLORIDA TO APPLY
This Plan shall be construed according to the laws of Florida, to the
extent Federal laws do not control.
12.2 PARTICIPANT CANNOT TRANSFER OR ASSIGN BENEFITS
None of the benefits, payments, proceeds, claims, or rights of any
Participant hereunder shall be subject to any claim of any creditor of the
Participant, nor shall any Participant have any right to transfer, assign,
encumber, or otherwise alienate, any of the benefits or proceeds which he may
expect to receive, contingently or otherwise under this Plan.
Notwithstanding any restrictions on the time of distribution which
would otherwise apply under this Plan, distributions with respect to a Qualified
Domestic Relations Order may be made at any time required by the order.
12.3 RIGHT TO PERFORM ALTERNATIVE ACTS
In the event it becomes impossible for the Employer, the Administrator
or the Trustee to perform any act required by this Plan, then the Employer, the
Administrator or the Trustee may perform such alternative act which most clearly
carries out the intent and purpose of this Plan.
12.4 REVERSION OF CONTRIBUTIONS UNDER CERTAIN CIRCUMSTANCES
In the event that the Commissioner of Internal Revenue determines that
the Plan is not initially qualified under the Internal Revenue Code, any
contribution made incident to that initial qualification by the Employer must be
returned to the Employer within one year after the date the initial
qualification is denied, but only if the application for the qualification is
made by the time prescribed by law for filing the Employer's return for the
taxable year in which the Plan is adopted, or such later date as the Secretary
of the Treasury may prescribe.
All contributions made pursuant to Article IV are conditioned on
deductibility of such contributions under IRC section 404. To the extent that
the deduction under IRC section 404 for any
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year is disallowed, the contribution shall be returned to the Employer within
one year after disallowance of the deduction.
If a contribution is made by an Employer by a mistake of fact, the
contribution may be returned to the Employer within one year after the payment
of the contribution.
Notwithstanding the above, earnings attributable to amounts described
in paragraphs two and three of this Section 12.4 shall not be returned to the
Employer; losses attributable to such amounts shall reduce the amount returned.
12.5 PLAN ADMINISTRATOR AGENT FOR SERVICE OF PROCESS
The Plan Administrator is designated agent to receive service of legal
process on behalf of the Plan.
12.6 FILING TAX RETURNS AND REPORTS
If the Trustee is not a corporate fiduciary, the Plan Administrator
shall prepare, or cause to have prepared, all tax returns, reports, and related
documents, except as otherwise specifically provided in this Plan or unless the
Administrator provides to the contrary in the manner prescribed in Section 8.4.
12.7 INDEMNIFICATION
The Employer agrees to indemnify all Employees who serve as members of
the Administrative Committee, if any, or who serve as Trustee, against all
liability arising in connection with their duties under the Plan, except that
this indemnification shall not include acts of embezzlement, or diversion of
Trust Funds by the Employee, nor shall it include acts of gross negligence.
12.8 NUMBER AND GENDER
When appropriate the singular as used in this Plan shall include the
plural and vice versa; and the masculine shall include the feminine.
ARTICLE XIII
PARTICIPATING EMPLOYERS
13.1 ADOPTION BY OTHER EMPLOYERS
Notwithstanding anything herein to the contrary, with the consent of
the Employer and Trustee, any other corporation or entity, whether an affiliate
or subsidiary or not, may adopt this Plan and all of the provisions hereof, and
participate herein and be known as a Participating Employer, by a properly
executed document evidencing said intent and will of such Participating
Employer.
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13.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS
(a) Each such Participating Employer shall be required to use the
same Trustee as provided in this Plan.
(b) The Trustee may, but shall not be required to, commingle, hold and
invest as one Trust Fund all contributions made by Participating Employers, as
well as all increments thereof. However, the assets of the Plan shall, on an
ongoing basis, be available to pay benefits to all Participants and
Beneficiaries under the Plan without regard to the Employer or Participating
Employer who contributed such assets.
(c) The transfer of any Participant from or to an Employer
participating in this Plan, whether he be an Employee of the Employer or a
Participating Employer, shall not affect such Participant's rights under the
Plan, and all amounts credited to such Participant's Combined Account as well as
his accumulated service time with the transferor or predecessor, and his length
of participation in the Plan, shall continue to his credit.
(d) All rights and values forfeited by termination of employment shall
inure only to the benefit of the Participants of the Employer or Participating
Employer by which the forfeiting Participant was employed, except if the
Forfeiture is for an Employee whose Employer is an Affiliated Employer, then
said Forfeiture shall inure to the benefit of the Participants of those
Employers who are Affiliated Employers. Should an Employee of one ("First")
Employer be transferred to an associated ("Second") Employer which is an
Affiliated Employer, such transfer shall not cause his account balance
(generated while an Employee of "First" Employer) in any manner, or by any
amount to be forfeited. Such Employee's Participant Combined Account balance for
all purposes of the Plan, including length of service, shall be considered as
though he had always been employed by the "Second" Employer and as such had
received contributions, forfeitures, earnings or losses, and appreciation or
depreciation in value of assets totaling amount so transferred.
13.3 DESIGNATION OF AGENT
Each Participating Employer shall be deemed to be a part of this Plan;
provided, however, that with respect to all of its relations with the Trustee
and Administrator for the purpose of this Plan, each Participating Employer
shall be deemed to have designated irrevocably the Employer as its agent. Unless
the context of the Plan clearly indicates the contrary, the word "Employer"
shall be deemed to include each Participating Employer as related to its
adoption of the Plan.
13.4 EMPLOYEE TRANSFERS
It is anticipated that an Employee may be transferred between
Participating Employers, and in the event of any such transfer, the Employee
involved shall carry with him his accumulated service and eligibility. No such
transfer shall effect a termination of employment hereunder, and the
Participating Employer to which the Employee is transferred shall thereupon
become obligated hereunder with respect to such Employee in the same manner as
was the Participating Employer from whom the Employee was transferred.
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13.5 PARTICIPATING EMPLOYER'S CONTRIBUTION
Any contribution subject to allocation during each Plan Year shall be
allocated among all Participants of all Participating Employers in accordance
with the provisions of this Plan. On the basis of the information furnished by
the Administrator, the Trustee shall keep separate books and records concerning
the affairs of each Participating Employer hereunder and as to the accounts and
credits of the Employees of each Participating Employer. The Trustee may, but
need not, register Contracts so as to evidence that a particular Participating
Employer is the interested Employer hereunder, but in the event of an Employee
transfer from one Participating Employer to another, the employing Employer
shall immediately notify the Trustee thereof.
13.6 AMENDMENT
Amendment of this Plan by the Employer at any time when there shall be
a Participating Employer hereunder shall only be by the written action of each
and every Participating Employer and with the consent of the Trustee where such
consent is necessary in accordance with the terms of this Plan.
13.7 DISCONTINUANCE OF PARTICIPATION
Any Participating Employer shall be permitted to discontinue or revoke
its participation in the Plan. At the time of any such discontinuance or
revocation, satisfactory evidence thereof and of any applicable conditions
imposed shall be delivered to the Trustee. The Trustee shall thereafter
transfer, deliver and assign Contracts and other Trust Fund assets allocable to
the Participants of such Participating Employer to such new Trustee as shall
have been designated by such Participating Employer, in the event that it has
established a separate pension plan for its Employees provided, however, that no
such transfer shall be made if the result is the elimination or reduction of any
"Section 411(d)(6) protected benefits" in accordance with Section 8.1(c). If no
successor is designated, the Trustee shall retain such assets for the Employees
of said Participating Employer pursuant to the provisions of Article VII hereof.
In no such event shall any part of the corpus or income of the Trust as it
relates to such Participating Employer be used for or diverted for purposes
other than for the exclusive benefit of the Employees of such Participating
Employer.
13.8 ADMINISTRATOR'S AUTHORITY
The Administrator shall have authority to make any and all necessary
rules or regulations, binding upon all Participating Employers and all
Participants, to effectuate the purpose of this Article.
IN WITNESS WHEREOF, the parties have executed this agreement this
______ day of ________________________, 1994.
ATTEST: HVIDE MARINE INCORPORATED
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___________________________ By:
BARNETT BANKS TRUST COMPANY, N.A.
WITNESSES AS TO TRUSTEE
By:
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I:\W-TAX\33765\001\401-K-PL.RV4
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APPENDIX A
HVIDE MARINE INCORPORATED RETIREMENT PLAN AND TRUST
SPECIAL PROVISIONS
The following special provisions apply with respect to the Employees
described below. Unless otherwise provided, all capitalized terms are defined as
provided in the Plan:
A.1. Each Employee who formerly was employed by Bengtsson
Walker Marine, Inc. ("BWM") and who became an employee of
the Employer following the date of the Employer's
agreement to provide certain marine services formerly
provided by BWM shall be eligible to participate in the
Plan effective March 1, 1996. Such former BWM employee
shall be 100% vested in his or her Employer Account.
A.2. Effective September 1, 1996, for purposes of determining
the eligibility to participate in the Plan under Section
3.1 of each Employee who formerly was employed by Seal
Fleet, Inc. ("Seal Fleet") and who became an employee of
the Employer as a result of the acquisition of
substantially all of the assets of Seal Fleet, each such
Employee's Hours of Service or Days of Service, as the
case may be, performed as an employee of Seal Fleet shall
be treated as Hours of Service or Days of Service
performed for the Employer.
A.3. Effective October 1, 1996, with respect to each Employee
who formerly was employed by Ocean Specialty Tankers
Corporation ("OSTC") and who became an employee of the
Employer as a result of OSTC becoming a member of the
Employer's controlled group, within the meaning of IRC
Section 414(b), each such Employee's Hours of Service or
Days of Service, as the case may be, performed
as an employee of OSTC shall be treated as Hours of
Service or Days of Service performed for the Employer for
purposes of determining: (1) the Employee's eligibility to
participate in the Plan under Section 3.1; and (2) the
Employee's vested percentage in his or her Employer
Account under Section 6.3.
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Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Retirement Plan and Trust of Hvide Marine Incorporated
for the registration of 100,000 shares of Class A Common Stock of Hvide Marine
Incorporated, of our report dated March 28, 1996, except the first paragraph of
Note 14, as to which the date is May 10, 1996, with respect to the consolidated
financial statements of Hvide Marine Incorporated and to the reference to our
firm under the caption "Experts" included in its Prospectus, as amended, filed
with the Securities and Exchange Commission on August 8, 1996.
ERNST & YOUNG LLP
Miami, Florida
January 8, 1997
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Retirement Plan and Trust of Hvide Marine Incorporated
for the registration of 100,000 shares of Class A Common Stock of Hvide Marine
Incorporated, of our report dated February 1, 1996, with respect to the
statement of assets to be sold and the related statements of vessel operations
of Gulf Boat Marine Services, Inc. and E & D Boat Rentals, Inc. and to the
reference to our firm under the caption "Experts" included in its Prospectus, as
amended, filed with the Securities and Exchange Commission on August 8, 1996.
ERNST & YOUNG LLP
New Orleans, Louisiana
January 8, 1997
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this registration
statement of Hvide Marine Incorporated (the "Company") on Form S-8 of our report
dated January 26, 1996 relating to the financial statements of OMI Chemical
Carrier Group included in the Company's Prospectus dated August 8, 1996, which
is incorporated by reference in this registration statement.
DELOITTE & TOUCHE LLP
New York, New York
January 8, 1997
Exhibit 23.4
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our reports dated April 12, 1996 (except for certain disclosures
presented in Footnote 1, as to which the date is August 1, 1996) on our audits
of (i) the statements of assets to be sold and related statements of vessel
operations of Seal Fleet, Inc. and Subsidiaries and (ii) the combined statements
of vessel operations of Indian Seal Partners, Ltd., Baffin Seal Partners, Ltd.,
Baltic Seal Partners, Ltd., Bengal Seal Partners, Ltd., and Ross Seal Partners,
Ltd. appearing in the registration statement on Form S-1 (File No. 33-78166) of
Hvide Marine Incorporated.
PANNELL KERR FORSTER OF TEXAS, P.C.
Houston, Texas
January 7, 1997
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Hvide Marine Incorporated, a
corporation organized under the laws of the State of Florida (the
"Corporation"), and the undersigned officers and directors of the Corporation,
individually and in their respective capacities indicated below, hereby make,
constitute and appoint Michael Joseph and John F. Kearney its and their true and
lawful attorneys, their separate or joint signatures sufficient to bind, with
power of substitution, to execute, deliver and file in its or their behalf, and
in each person's respective capacity or capacities as shown below, a
registration statement on Form S-8 under the Securities Act of 1933, any and all
documents in support of or supplemental to said registration statement by the
Corporation; and the Corporation and each said person hereby grant to said
attorneys full power and authority to do and perform each and every act and
thing whatsoever as any one of said attorneys may deem necessary or advisable to
carry out the full intent of this Power of Attorney to the same extent and with
the same effect as the Corporation or the undersigned officers and directors of
the Corporation might or could do personally in its or their capacity or
capacities as aforesaid; and the Corporation and each of said persons hereby
ratify, confirm and approve all acts and things that any one of said attorneys
may do or cause to be done by virtue of this Power of Attorney and its signature
or their signatures as the same may be signed by any one of said attorneys to
said registration statement and any and all documents in support of or
supplemental to said registration statement and any and all amendments thereto.
Dated as of January 9, 1997.
Hvide Marine Incorporated
Attest: /S/ GENE DOUGLAS By: /S/ J. ERIK HVIDE
Gene Douglas J. Erik Hvide
Secretary Chairman, President, and Chief Executive Officer
/S/ J. ERIK HVIDE /S/ JOHN H. BLANKLEY
J. Erik Hvide John H. Blankley
Chairman of the Board of Directors, President, Executive Vice President -- Chief
Chief Executive Officer and Director Financial Officer, and Director
(Principal Executive Officer)
/S/ DONALD L. CALDERA /S/ JOHN KRUMENACKER
Donald L. Caldera John Krumenacker
Executive Vice President and Director Controller
(Principal Accounting Officer)
/S/ EUGENE F. SWEENEY /S/ ROBERT B. CALHOUN, JR.
Eugene F. Sweeney Robert B. Calhoun, Jr.
Executive Vice President and Director Director
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/S/ GERALD FARMER /S/ JEAN FITZGERALD
Gerald Farmer Jean Fitzgerald
Director Director
/S/ JOHN LEE /S/ WALTER C. MINK
John Lee Walter C. Mink
Director Director
/S/ ROBERT RICE /S/ RAYMOND B. VICKERS
Robert Rice Raymond B. Vickers
Director Director
